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Worse Than Nixon? Committee to Protect Journalists Warns About Obama Crackdown on Press Freedom October 11, 2013

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ROGER’S NOTE: THIS IS THE PRESIDENT WHO PROMISED MORE TRANSPARENCY IN GOVERNMENT.  THIS IS THE PRESIDENT WHO IS QUICK TO ACCUSE THE ECUADORIAN AND VENEZUELAN GOVERNMENTS OF SUPPRESSING FREEDOM OF THE PRESS.

http://www.democracynow.org, October 11, 2013

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report, as we shift gears and turn to the first report on press freedom in the United States ever published by the Committee to Protect Journalists, which usually advocates for press freedoms overseas—and the news isn’t good. Titled “The Obama Administration and the Press,” the report looks at the many ways President Obama has ushered in a paralyzing climate of fear for both reporters and their sources. Among the cases it details, six government employees, plus two contractors, including Edward Snowden, have faced felony criminal prosecutions since 2009 under the 1917 Espionage Act for leaking classified information to the press, compared with just three prosecutions in all previous U.S. administrations. The Department of Justice has also secretly subpoenaed and seized Associated Press reporters’ phone logs and emails, and New York Times reporter James Risen was ordered to testify against a former CIA officer who provided leaked information to him, or Risen would go to jail.

The new report is written by Leonard Downie, former executive editor of The Washington Post. He spoke with dozens of journalists who told him officials are, quote, “reluctant to discuss even unclassified information … because they fear that leak investigations and government surveillance make it more difficult for reporters to protect them as sources.” It comes as Glenn Greenwald, columnist for Britain’s Guardian newspaper who is based in Brazil, and his partner David Miranda testified before a Brazilian Senate committee this week about his work with NSA whistleblower Edward Snowden, who remains in Russia while he’s wanted in the U.S. on espionage charges.

GLENN GREENWALD: [translated] In reality, there is a war against journalism and the process of transparency. And this war is with the government of the United States and its closest allies, mostly the British government. They are doing a lot of things against the freedom of press to hide this whole report, which generally the United States or English government say these things only happen in China or Iran or Russia, but now we can see that the United States government is doing these exact same things.

AMY GOODMAN: That of course wasn’t Glenn Greenwald’s voice that you mainly heard, because Glenn Greenwald was speaking Portuguese in the Brazilian hearing. This comes as the Obama administration seized the emails of Fox News reporter James Rosen as part of probes into the leaking of classified information. In May, President Obama said he made no apologies for seeking to crack down on leaks.

PRESIDENT BARACK OBAMA: Leaks related to national security can put people at risk. They can put men and women in uniform that I’ve sent into the battlefield at risk. They can put some of our intelligence officers, who are in various dangerous situations that are easily compromised, at risk. I make no apologies, and I don’t think the American people would expect me, as commander-in-chief, not to be concerned about information that might compromise their missions or might get them killed.

AMY GOODMAN: For more, we go to Washington, D.C., where we’re joined by Leonard Downie, former executive editor of The Washington Post, author of this new report, “The Obama Administration and the Press,” commissioned by the Committee to Protect Journalists. Leonard Downie’s 44 years at The Washington Post included overseeing much of its Watergate coverage. During the 17 years he served as executive editor, the paper won 25 Pulitzer Prizes. He’s now is a professor at the Walter Cronkite School of Journalism at Arizona State University.

Leonard Downie, welcome to Democracy Now! Talk about your findings, this comprehensive, first-time report of the Committee to Protect Journalists on press freedom here in the United States.

LEONARD DOWNIE JR.: I found that these leaks investigations and a program called the Insider Threat Program, instituted since the Bradley Manning leaks, that requires government employees to monitor each other to make sure that they’re not leaking information to anyone, including journalists, to have really frightened government officials. Many, many reporters that I interviewed here in Washington say that government officials are afraid to talk to them. They’re afraid that their telephone conversations and their email exchanges would be monitored. That is to say that investigators could come in later, as they did in several leaks investigations, and use their telephone and email records in order to find the contacts between government officials and reporters. So they’re simply scared to talk to reporters.

And this, this is not good, because—I just heard the president saying that he was concerned about the safety of our troops and our intelligence officers. It’s important that responsible, knowledgeable government officials be able to talk to reporters about these matters, so that, among other things, they can alert reporters to information that might be harmful to national security or harmful to human life, in which case no responsible news organization would publish those.

AMY GOODMAN: What were you most surprised by?

LEONARD DOWNIE JR.: I guess I was most surprised by—you know, I’m used to reporters complaining about access, because we all want more access than we can get all the time, and that’s understandable. But I was surprised by the pervasiveness of this administration’s control over the—over information, by how much it discourages leaks of all kinds and not just classified information leaks, and how much it does not allow for unauthorized contacts with the press, if it can help it, and how much it uses social media and other digital means—websites and so on—to put out a lot of its own story, a lot of its own information, that makes the administration look good, while restricting access to information that would hold the government accountable for its actions.

AMY GOODMAN: Leonard Downie, for this report you spoke with New York Times national security reporter Scott Shane—we also—

LEONARD DOWNIE JR.: Yes.

AMY GOODMAN: —just interviewed him—who said sources are now scared to death to even talk about unclassified, everyday issues. He said, quote, “There’s a gray zone between classified and unclassified information, and most sources were in that gray zone. Sources are now afraid to enter that gray zone,” Shane said. “It’s having a deterrent effect. If we consider aggressive press coverage of government activities being at the core of American democracy, this tips the balance heavily in favor of the government.” That was Scott Shane of The New York Times. Leonard Downie?

LEONARD DOWNIE JR.: Yes, that’s exactly what he told me. And this is exactly what I heard from dozens of reporters around Washington, from news executives, and even from some former government officials, who are concerned, as I said earlier, about the fact that there—that it’s important that knowledgeable reporters, like Scott Shane, who know so much about national security, and his editors, who can make good decisions about what to publish—if they’re cut off from this information, it’s important for them—but here’s a good example. Look at how much the administration has revealed now about the NSA surveillance program, only because Edward Snowden provided that information to the press. The press published it, and that forced the administration to make public information about this program that Americans ought to have so that they can make decisions about it.

AMY GOODMAN: In May, reporters asked President Obama whether his administration’s probe of the emails of Associated Press reporters and editors’ emails recalls President Richard Nixon’s targeting of the press when it attempted to block The New York Times from publishing the Pentagon Papers, the secret history of the Vietnam War leaked to the paper by whistleblower Dan Ellsberg. This is part of the exchange.

REPORTER: I’d like to ask you about the Justice Department.

PRESIDENT BARACK OBAMA: Mm-hmm.

REPORTER: Do you believe that the seizure of phone records from Associated Press journalists this week, or before, that was announced recently this week, was an overreach? And do you still have full confidence in your attorney general? Should we interpret yesterday’s renewed interest by the White House in a media shield law as a response to that? And more broadly, how do you feel about comparisons by some of your critics of this week’s scandals to those that happened under the Nixon administration?

PRESIDENT BARACK OBAMA: Well, yeah, I’ll let you guys engage in those comparisons. And you can go ahead and read the history, I think, and draw your own conclusions. My concern is making sure that if there’s a problem in the government, that we fix it. That’s my responsibility. And that’s what we’re going to do.

AMY GOODMAN: And this is White House spokesperson Jay Carney questioned in May about the AP spying scandal and the Obama administration’s prosecutions of whistleblowers.

REPORTER: This administration in the last four years has prosecuted twice as many leakers as every previous administration combined. How does that reflect balance?

PRESS SECRETARY JAY CARNEY: I would say that the president is committed to the press’s ability to pursue information, to defending the First Amendment. He is also, as a citizen and as commander-in-chief, committed to the proposition that we cannot allow classified information to be—that can do harm to our national security interests or to endanger individuals, to be—to be leaked. And that is a balance that has to be struck.

REPORTER: But the record of the last four years does not suggest balance.

PRESS SECRETARY JAY CARNEY: That’s your opinion, Ari, but I—

REPORTER: No, it’s twice as many prosecutions as all previous administrations combined. That’s not even close.

PRESS SECRETARY JAY CARNEY: I understand that there—you know, that there were ongoing investigations that preceded this administration. But I—again, I’m not going to—I can tell you what the president’s views are, and the president’s views include his defense of the First Amendment, his belief that journalists ought to be able to pursue information in an unfettered way. And that is backed up by his support for a media shield law, both as senator and as president. And it is also true that he believes a balance needs to be struck between those goals and the need to protect classified information.

AMY GOODMAN: If you can respond to both of those, Leonard Downie? Of course, that’s White House spokesperson Jay Carney—

LEONARD DOWNIE JR.: Right.

AMY GOODMAN: —who is the former Washington bureau chief of Time magazine.

LEONARD DOWNIE JR.: Yes, and I interviewed him for my report, and he stated responses like those you just heard.

First, there’s too much that’s classified. The president himself has said repeatedly in the past that too much information is classified. It’s not just information that might be harmful to national security or human life; it’s just lots and lots, millions and millions and millions of documents and pieces of information that are classified that shouldn’t be. Obviously that preceded this administration, but it’s not improved during this administration.

The president promised to have the most transparent government in American history. He promised to reduce overclassification. He promised to make it easier to obtain government information through the Freedom of Information Act. And so far, none of these promises have been kept. So, part of the reason for why I agreed to do this report for the Committee to Protect Journalists is I would like to alert the president to the fact that this is one of the most—this is one of the first promises he made. He signed presidential directives about open government his first day in office. These are not being carried out by his administration. He still has time for his legacy to make good on these promises.

AMY GOODMAN: Talk about the Justice Department acknowledging seizing the work, home and cellphone records used by almost a hundred reporters and editors at the Associated Press. The phones targeted included the general AP office numbers in New York City, in Washington, D.C., in Hartford, Connecticut, and the main number for the AP in the House of Representatives press gallery, which of course means that many other reporters were speaking on it—the action coming as part of a probe into leaks behind an AP story on a U.S. intelligence operation.

LEONARD DOWNIE JR.: This has had a chilling effect on both government officials, government sources and journalists. And it’s not the only one of these investigations in which such records were secretly subpoenaed and seized—half of these eight investigations that took place. So, reporters and sources know that records have been seized in the past, and as a result, reporters told me, people are afraid to talk to them on the telephone, they’re afraid to engage in email traffic with them, and the reporters themselves are concerned about putting their sources at risk by conducting telephone and email conversations with them, which means we have to go back to secret meetings, like the—you know, the underground garage meetings with Deep Throat during Watergate. Reporters are trying to figure out if they can encrypt their email, but we now know that NSA is trying to figure out how to—how to get past the encryption. So, reporters are very, very worried about putting their sources in jeopardy merely by trying to talk to them about the people’s business.

AMY GOODMAN: What is the Insider Threat Program?

LEONARD DOWNIE JR.: The Insider Threat Program, which was first described by the McClatchy Newspapers last summer, is a presidential order that came after the Manning case. The government was very, very concerned about other Mannings somewhere in the government, because so much—so much of this information is digitally available to clever people. And so, they instituted this program where they ordered every government department and every agency to order their employees—and there are directives that have gone out, which McClatchy Newspapers obtained, that instruct employees to monitor each other to make sure that there are no leaks of classified information. And it’s been interpreted by some of the agencies, as you look at their plans, to go beyond classified information to information about anything that’s going on in that agency.

AMY GOODMAN: How do you think, overall, Leonard Downie, the press have been impacted? I mean, going back to this point that the Committee to Protect Journalists has never issued a report on press freedom in the United States before.

LEONARD DOWNIE JR.: Correct, correct. This has had a chilling effect on not just coverage of national security, but coverage of the government generally. Along with the other policies of the administration, in which they have exercised such tight control over their message, over their information, it makes it very difficult for the press to hold the administration accountable for its actions. Now, that doesn’t mean reporters are going to stop. And even though they complain to me, they’re still out there working aggressively, and there still is good coverage of a lot of things. But we don’t know what we’ve not been able to find out about how this government works, in order to hold it accountable to the American people. If the president said he wants to be able to have his government held accountable to the American people, then I think they should change their policies.

AMY GOODMAN: Why is President Obama doing this? I mean, you hear the questions of Jay Carney. I mean, under the Obama administration, more than twice the number of journalists and sources have been gone after, prosecuted, than all administrations combined.

LEONARD DOWNIE JR.: There are two different patterns here. One began with 9/11, and in fairness to the administration, the PATRIOT Act was passed under George Bush. Some of these leaks investigations did begin during the Bush administration, as Jay Carney said, although then they reached fruition and with prosecutions under the Obama administration. And new investigations began, like the one with the Associated Press and Fox News that you’ve talked about. So, that atmosphere of being concerned about national security leaks and pressure from the intelligence community to stop these kinds of leaks, it began during the Bush administration, has accelerated during the Obama administration.

At the same time, the Obama people discovered during the two election campaigns that very tight message control, in which they try to get their news out to people, news that they generate out to Americans, but make it more difficult for reporters to hold them accountable, worked very well during the campaigns. And they’ve been much more successful than previous administrations at carrying that control over into the workings of government itself once they took office. Other administrations have tried this, but they’ve not been as successful at it.

AMY GOODMAN: Leonard Downie—

LEONARD DOWNIE JR.: And the third—

AMY GOODMAN: Go ahead.

LEONARD DOWNIE JR.: I’m sorry. And the third factor is, is obviously, you know, the new digital world we live in, which gives them much more levers for controlling the message than we’ve ever had before.

AMY GOODMAN: What needs to be done, very quickly?

LEONARD DOWNIE JR.: The president needs to keep his promises. He needs to reduce overclassification. He needs to make it easier to obtain information through the Freedom of Information Act. He needs to put the word out that government officials should be allowed to talk to the press unless it’s something that’s going to be harmful to national security.

AMY GOODMAN: Leonard Downie, I want to thank you for being with us, former executive editor of The Washington Post, author of the new report, “The Obama Administration and the Press,” commissioned by the Committee to Protect Journalists, the first time the CPJ has looked at freedom of the press in the United States. We’ll link to that report at democracynow.org. We’ll be back in a minute.

WikiLeaks’ New Release: The Kissinger Cables and Bradley Manning April 12, 2013

Posted by rogerhollander in Civil Liberties, Constitution, Criminal Justice, History, Wikileaks.
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WikiLeaks has released a new trove of documents, more than 1.7 million U.S. State Department cables dating from 1973-1976, which they have dubbed “The Kissinger Cables,” after Henry Kissinger, who in those years served as secretary of state and assistant to thepresident for national security affairs

.Henry Kissinger. (Flickr/Cliff CC-BY)

One cable includes a transcribed conversation where Kissinger displays remarkable candor: “Before the Freedom of Information Act, I used to say at meetings, ‘The illegal we do immediately; the unconstitutional takes a little longer.’ [laughter] But since the Freedom of Information Act, I’m afraid to say things like that.”

While the illegal and the unconstitutional may be a laughing matter for Kissinger, who turns 90 next month, it is deadly serious for Pvt. Bradley Manning. After close to three years in prison, at least eight months of which in conditions described by U.N. special rapporteur on torture Juan Ernesto Mendez as “cruel, inhuman and degrading,” Manning recently addressed the court at Fort Meade: “I believed that if the general public, especially the American public, had access to the information … this could spark a domestic debate on the role of the military and our foreign policy in general, as well as it related to Iraq and Afghanistan.”

These words of Manning’s were released anonymously, in the form of an audio recording made clandestinely, that we broadcast on the “Democracy Now!” news hour. This was Bradley Manning, in his own voice, in his own words, explaining his actions.

He testified about the helicopter gunship video that he released to WikiLeaks, which was later made public under the title “Collateral Murder.” In stark, grainy black-and-white, it shows the gunship kill 12 men in Baghdad on July 12, 2007, with audio of the helicopter crew mocking the victims, celebrating the senseless murder of the people below, two of whom were employees of the Reuters news agency.

Manning said: “The most alarming aspect of the video to me, however, was the seemingly delightful bloodlust the aerial weapons team. They dehumanized the individuals they were engaging and seemed to not value human life by referring to them as ‘dead bastards,’ and congratulating each other on the ability to kill in large numbers.”

Reuters had sought the video through a Freedom of Information request, but had been denied. So Manning delivered the video, along with hundreds of thousands of other classified electronic documents, through the anonymous, secure online submission procedure developed by WikiLeaks. Manning made the largest leak of classified documents in U.S. history, and changed the world.

The WikiLeaks team gathered at a rented house in Reykjavik, Iceland, to prepare the video for public release. Among those working was Birgitta Jonsdottir, a member of the Icelandic parliament. She told me: “When I saw the video in February 2010, I was profoundly moved. I was moved to tears, like many people that watch it. But at the same time, I understood its significance and how it might be able to change our world and make it better.”

Jonsdottir co-founded the Icelandic Pirate Party, a genuine political party springing up in many, mostly European countries. A lifelong activist, she calls herself a “pixel pirate.”

The “Collateral Murder” video created a firestorm of press attention when it was first released. One of the soldiers on the ground was Ethan McCord, who rushed to the scene of the slaughter and helped save two children who had been injured in the attack. He suffers from post-traumatic stress disorder. He recently penned a letter of support for Bradley Manning, writing: “The video released by WikiLeaks belongs in the public record. Covering up this incident is a matter deserving of criminal inquiry. Whoever revealed it is an American hero in my book.”

In the three years since “Collateral Murder” was released in April 2010, WikiLeaks has come under tremendous pressure. Manning faces life in prison or possibly even the death penalty. WikiLeaks founder Julian Assange spent a year and a half under house arrest in Britain, until he sought refuge in the Ecuadorean Embassy in London, where he has remained since June 2012, fighting extradition to Sweden. He fears Sweden could then extradite him to the United States, where a secret grand jury may have already issued a sealed indictment against him. Private details from Jonsdottir’s Twitter and four other online accounts have been handed over to U.S. authorities.

WikiLeaks’ latest release, which includes documents already declassified but very difficult to search and obtain, is a testament to the ongoing need for WikiLeaks and similar groups. The revealed documents have sparked controversies around the world, even though they relate to the 1970s. If we had a uniform standard of justice, Nobel laureate Henry Kissinger would be the one on trial, and Bradley Manning would win the Nobel Peace Prize.

Denis Moynihan contributed research to this column.

Amy Goodman

Amy Goodman is the host of “Democracy Now!,” a daily international TV/radio news hour airing on 1,100 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.

Obama takes Bush’s secrecy games one step further March 26, 2012

Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice, Democracy.
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  REPORTING FROM ISLAMABAD, PAKISTAN — A U.S. drone missile strike killed four suspected militants in northwest Pakistan on Wednesday, ending a six-week hiatus in such attacks, imposed by Washington following American airstrikes late last year that killed 24 Pakistani soldiers and severely marred relations between the two nations.

After repeatedly boasting about it in public, Obama officials tell courts it cannot confirm the CIA drone program

By Glenn Greenwald, www.salon.com, March 26, 2012

The ACLU is suing the Obama administration under the Freedom of Information Act (FOIA), seeking to force disclosure of the guidelines used by Obama officials to select which human beings (both U.S. citizens and foreign nationals) will have their lives ended by the CIA’s drone attacks (“In particular,” the group explains, the FOIA request “seeks to find out when, where and against whom drone strikes can be authorized, and how the United States ensures compliance with international laws relating to extrajudicial killing”). The Obama administration has not only refused to provide any of that information, but worse, the CIA is insisting to federal courts that it cannot even confirm or deny the existence of a drone program at all without seriously damaging national security; from the CIA’s brief in response to the ACLU lawsuit:

. . .

What makes this so appalling is not merely that the Obama administration demands the right to kill whomever it wants without having to account to anyone for its actions, choices or even claimed legal authorities, though that’s obviously bad enough (as I wrote when the ACLU lawsuit was commenced: “from a certain perspective, there’s really only one point worth making about all of this: if you think about it, it is warped beyond belief that the ACLU has to sue the U.S. Government in order to force it to disclose its claimed legal and factual bases for assassinating U.S. citizens without charges, trial or due process of any kind”). What makes it so much worse is how blatantly, insultingly false is its claim that it cannot confirm or deny the CIA drone program without damaging national security.

Numerous Obama officials — including the President himself and the CIA Director — have repeatedly boasted in public about this very program. Obama recently hailed the CIA drone program by claiming that “we are very careful in terms of how it’s been applied,” and added that it is “a targeted, focused effort at people who are on a list of active terrorists, who are trying to go in and harm Americans, hit American facilities, American bases and so on.” Obama has told playful jokes about the same drone program. Former CIA Director and current Defense Secretary Leon Panetta also likes to tell cute little jokes about CIA Predator drones, and then proclaimed in December that the drone program has “been very effective at undermining al Qaeda and their ability to plan those kinds of attacks.” Just two weeks ago, Attorney General Eric Holder gave a speech purporting to legally justify these same drone attacks.

So Obama officials are eager to publicly tout the supposed benefits of the CIA’s drone programs in order to generate political gain for the President: to make him look like some sort of Tough, Brave Warrior single-handedly vanquishing Al Qaeda. The President himself boasts about how tightly controlled, precise and effective the CIA drones are. Everyone in the world knows the CIA has a drone program. It is openly discussed everywhere, certainly including the multiple Muslim countries where the drones routinely create piles of corpses, and by top U.S. Government officials themselves.

But then when it comes time to test the accuracy of their public claims by requesting the most basic information about what is done and how execution targets are selected, and when it comes time to ask courts to adjudicate its legality, then suddenly National Security imperatives prevent the government even from confirming or denying the existence of the program: the very same program they’ve been publicly boasting and joking about. As the ACLU’s Jameel Jaffer put it after Obama publicly defended the program: “At this point, the only consequence of pretending that it’s a secret program is that the courts don’t play a role in overseeing it” – that, and ensuring that any facts that contradict these public claims remain concealed.

This is why the U.S. Government’s fixation on secrecy — worse than ever under the Obama administration, as evidenced by its unprecedented war on whistleblowers — is so pernicious. It not only enables government officials to operate in the dark, which inevitably ensures vast (though undiscovered) abuses of power. Worse, it enables the government to aggressively propagandize the citizenry without challenge: Obama officials are free to make all sorts of claims about how great and targeted the drone program is and how it Keeps Us Safe™, while simultaneously suppressing any evidence or information that would test those claims and/or contradict them.

Worse still, it literally removes our highest political officials from the rule of law. The sole purpose of these vast claims of secrecy around the drone program — the absurd notion that they cannot even confirm or deny its existence without harming National Security — is to block courts from reviewing the legality of what they’re doing, which is another way of saying: they have removed themselves from the rule of law. Even Bush DOJ lawyer Jack Goldsmith, a vociferous advocate of executive power and secrecy powers, understands how abusive this is:

First, it is wrong . . . for the government to maintain technical covertness but then engage in continuous leaks, attributed to government officials, of many (self-serving) details about the covert operations and their legal justifications.  It is wrong because it is illegal.  It is wrong because it damages (though perhaps not destroys) the diplomatic and related goals of covertness.  And it is wrong because the Executive branch seems to be trying to have its cake (not talking about the program openly in order to serve diplomatic interests and perhaps deflect scrutiny) and eat it too (leaking promiscuously to get credit for the operation and to portray it as lawful).

Indeed, one of the worst abuses of the lawless Bush presidency was that Bush officials repeatedly invoked secrecy powers (the State Secret privilege) to shield their most controversial and lawless programs from judicial review: warrantless eavesdropping, rendition, and torture. One of the earliest alarms about what the Obama presidency would be was when the Obama DOJ told courts early in 2009 that it would continue to assert those same radical secrecy claims: thus telling courts that the very programs which candidate Obama long denounced as illegal were now such vital State Secrets that courts must not risk their disclosure by adjudicating their legality. Beyond Obama’s decree that the DOJ must not investigate Bush-era crimes, that was the instrument used by Obama to shield Bush’s criminal policies from judicial challenge: through Kafkaesque claims of secrecy whereby programs that everyone in the world knows exist were Too Secret even to let courts examine. In sum, there is only one place in the entire world where these policies of warrantless eavesdropping, rendition, torture, and CIA drones cannot be discussed: in American courts, when it’s time to review their legality and/or allow its victims to vindicate their legal rights.

Now, in this ACLU/FOIA case, the Obama administration is taking these warped secrecy games one step further. They boast publicly about the programs to lavish themselves with praise, only to turn around once they’re sued in court and insist that the programs are too secret even to acknowledge. So extreme is the fixation on secrecy from the Most Transparent Administration Ever™ that they are routinely reduced to this type of self-parody; behold how they are insisting in response to a separate FOIA lawsuit from The New York Times that they cannot even confirm or deny the existence of the OLC memo which authorized the assassination of Anwar Awlaki — even though the NYT reported on its contents. More amazingly still, the Obama administration continues to insist that they cannot confirm or deny the memo’s existence even after Eric Holder talks about the memo in a Senate hearing.

This would be laughable if it were not so destructive. It results in the government’s most consequential actions being completely shielded not only from public scrutiny, but also from the rule of law. It enables the most powerful political officials to inculcate the public with claims about their actions while preventing any form of checks and suppressing any contrary information. It literally means that the Obama administration is able to conduct multiple secret wars around the world, ones conducted by drone attacks, the very existence of which they refuse to acknowledge. And it is yet another means of how the Obama presidency is cementing the worst abuses of the Bush presidency: the very same ones he so inspirationally vowed to reverse.

Glenn Greenwald (email: GGreenwald@salon.com) is a former Constitutional and civil rights litigator and is the author of two New York Times Bestselling books on the Bush administration’s executive power and foreign policy abuses. His just-released book, With Liberty and Justice for Some, is an indictment of America’s two-tiered system of justice, which vests political and financial elites with immunity even for egregious crimes while subjecting ordinary Americans to the world’s largest and most merciless penal state. Greenwald was named by The Atlantic as one of the 25 most influential political commentators in the nation. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, and is the winner of the 2010 Online Journalism Association Award for his investigative work on the arrest and oppressive detention of Bradley Manning.

ACLU sues Obama administration over assassination secrecy February 2, 2012

Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice, Human Rights, War on Terror.
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Roger’s note: Here is a breath of fresh air for Tricky Dick Nixon as he boils in Hell .  His infamous “if the president does it it’s legal,” thanks to Bush and Obama, is now the law of the land.

The President boasts in public about his executions, then hides behind secrecy claims to shield it from the law

By Glenn Greenwald, www.salon.com, February 2, 2012

Barack Obama

President Barack Obama walks to Marine One on the South Lawn of the White House in Washington, Wednesday, Jan. 25, 2012.  (AP Photo/Evan Vucci)  (Credit: AP)

(updated below)

The ACLU yesterday filed a lawsuit against various agencies of the Obama administration — the Justice and Defense Departments and the CIA — over their refusal to disclose any information about the assassination of American citizens. In October, the ACLU filed a FOIA request demanding disclosure of the most basic information about the CIA’s killing of 3 American citizens in Yemen: Anwar Awlaki and Samir Khan, killed by missiles fired by a U.S. drone in September, and Awlaki’s 16-year-old son, Abdulrahman, killed by another drone attack two weeks later.

The ACLU’s FOIA request sought merely to learn the legal and factual basis for these killings — meaning: tell us what legal theories you’ve adopted to secretly target U.S. citizens for execution, and what factual basis did you have to launch these specific strikes? The DOJ and CIA responded not only by refusing to provide any of this information, but refused even to confirm if any of the requested documents exist; in other words, as the ACLU put it yesterday, “these agencies are saying the targeted killing program is so secret that they can’t even acknowledge that it exists.” That refusal is what prompted yesterday’s lawsuit (in December, the New York Times also sued the Obama administration after it failed to produce DOJ legal memoranda “justifying” the assassination program in response to a FOIA request from reporters Charlie Savage and Scott Shane, but the ACLU’s lawsuit seeks disclosure of both the legal and factual bases for these executions).

From a certain perspective, there’s really only one point worth making about all of this: if you think about it, it is warped beyond belief that the ACLU has to sue the U.S. Government in order to force it to disclose its claimed legal and factual bases for assassinating U.S. citizens without charges, trial or due process of any kind. It’s extraordinary enough that the Obama administration is secretly targeting citizens for execution-by-CIA; that they refuse even to account for what they are doing — even to the point of refusing to disclose their legal reasoning as to why they think the President possesses this power — is just mind-boggling. Truly: what more tyrannical power is there than for a government to target its own citizens for death — in total secrecy and with no checks — and then insist on the right to do so without even having to explain its legal and factual rationale for what it is doing? Could you even imagine what the U.S. Government and its media supporters would be saying about any other non-client-state country that asserted and exercised this power?

But there’s one abuse that deserves special attention here: namely, the way in which the Obama administration manipulates and exploits its secrecy powers. Here is what the DOJ said to the ACLU about why it will not merely withhold all records, but will refuse even to confirm or deny whether any such records exist:

So the Most Transparent Administration Ever™ refuses even to confirm or deny if there is an assassination program, or if it played any role in the execution of these three Americans, because even that most elementary information is classified.

What makes this assertion so inexcusable — beyond its inherently and self-evidently anti-democratic nature — is that the Obama administration constantly boasts in public about this very same program when doing so is politically beneficial for the President. The day Awlaki was killed, the President himself began a White House ceremony by announcing Awlaki’s death, trumpeting it as “a major blow to al Qaeda’s most active operational affiliate,” boasting that “the death of al-Awlaki marks another significant milestone in the broader effort to defeat al Qaeda and its affiliate,” and then patting himself on the back one last time: “this success is a tribute to our intelligence community.” Here’s how Obama hailed himself for the Awlaki killing on The Tonight Show with Jay Leno:

THE PRESIDENT: But al Qaeda is weaker than anytime in recent memory. We have taken out their top leadership position. That’s been a big accomplishment.

(Applause.)

JAY LENO: Can I ask you about taking out their top leadership, al-Awlaki, this guy, American-born terrorist? How important was he to al Qaeda?

THE PRESIDENT: Do you — what happened was we put so much pressure on al Qaeda in the Afghan/Pakistan region –

JAY LENO: Right.

THE PRESIDENT: — that their affiliates were actually becoming more of a threat to the United States. So Awlaki was their head of external operations. This is the guy that inspired and helped to facilitate the Christmas Day bomber. This is a guy who was actively planning a whole range of operations here in the homeland and was focused on the homeland. And so this was probably the most important al Qaeda threat that was out there after Bin Laden was taken out, and it was important that working with the enemies, we were able to remove him from the field.

(Applause.)

Earlier this week, Defense Secretary Leon Panetta went on 60 Minutes and described the process by which U.S. citizens are targeted for assassination: “the President of the United States has to sign off and he should.” Obama officials have repeatedly gone to the media anonymously to make claims about Awlaki’s guilt and to justify their assassination program. Here is one “senior administration lawyer” — cowardly hiding behind anonymity — responding to my criticisms and justifying the assassination program to Benjamin Wittes (who naturally protected him from being identified). When I spoke at an NYU Law School event in 2010 and criticized what was then the Awlaki assassination attempt while sitting next to FBI Counter-Terrorism official Niall Brennan, NPR’s national security reporter, Dina Temple-Raston, stood up and revealed that Obama officials had secretly shown her snippets of evidence to demonstrate that Awlaki was involved in actual Terrorist plots.

So Obama can go on TV shows and trigger applause for himself by boasting of the Awlaki killing. He can publicly accuse Awlaki of all sorts of crimes for which there has been no evidence presented. He can dispatch his aides to anonymously brag in newspapers about all the secret evidence showing Awlaki’s guilt and showing how resolute and tough the President is for ordering him executed. Justice Department and Pentagon officials scamper around in the dark flashing snippets of evidence about Awlaki to reporters like Temple-Raston so that they dutifully march forward to defend the government’s assassination program. Obama officials will anonymously insist in public that they have legal authority to target citizens for killing without trial.

But when it comes time to account in a court or under the law for the legal authority and factual basis for what they have done — in other words, when it comes time to demonstrate that they are actually acting legally when doing it — then, suddenly, everything changes. When they face the rule of law, then the program is so profoundly classified that it cannot be spoken of at all — indeed, the administration cannot even confirm or deny that it exists — and it therefore cannot be scrutinized by courts at all.

Worse, they not only invoke these secrecy claims to avoid the ACLU and NYT‘s FOIA requests, but they also invoked it when Awlaki’s father sued them and asked a court to prevent President Obama from executing his son without a trial. When forced to justify their assassination program in court, the Obama DOJ insisted that the program was so secretive that it could not even safely confirm that it existed — it’s a state secret – and thus no court could or should review its legality (see p.43 of the DOJ’s brief and Panetta’s Affidavit in the Awlaki lawsuit). As the ACLU said yesterday:

The government’s self-serving attitude toward transparency and disclosure is unacceptable. Officials cannot be allowed to release bits of information about the targeted killing program when they think it will bolster their position, but refuse even to confirm the existence of a targeted killing program when organizations like the ACLU or journalists file FOIA requests in the service of real transparency and accountability.

This selective, manipulative abuse of secrecy reveals its true purpose. It has nothing to do with protecting national security; that’s proven by the Obama administration’s eagerness to boast about the program publicly and to glorify it when it helps the President politically. The secrecy instead has everything to do with (1) preventing facts that would be politically harmful from being revealed to the American public, and (2) shielding the President’s conduct from judicial review. And this cynical abuse of secrecy powers extends far beyond the Awlaki case; as the ACLU’s Jameel Jaffer wrote in an excellent LA Times Op-Ed last year: “where the state’s ostensible secrets are concerned, it has become common for government officials to tell courts one thing — nothing — and reporters another.”

This is the wretched game that both the Bush and Obama administrations have long been playing: boasting in public about their conduct but then invoking secrecy claims to shield it from true accountability or legal adjudication. Jaffer described the template this way:

After the New York Times disclosed the existence of the National Security Agency’s warrantless wiretapping program, the Bush administration officially acknowledged the program, described and defended it publicly, and made available to the press a 40-page report detailing the program’s supposed legal basis. Five months later, the administration sought to quash a constitutional challenge by arguing that the government couldn’t defend the program in court without disclosing information that was simply too sensitive to disclose.

This is exactly the same model used by both the Bush and Obama DOJs to shield warrantless eavesdropping, rendition, torture, drones, civilian killings and a whole host of other crimes from judicial review, i.e., from the rule of law. Everyone knows that the U.S. Government is doing these things. They are discussed openly all over the world. The damage they do and the victims they leave behind make it impossible to conceal them. Often, they are the subject of judicial proceedings in other countries. Typically, U.S. officials will speak about them and justify and even glorify them to American media outlets anonymously.

There’s only one place in the world where these programs cannot be discussed: in American courts. That’s because, when it comes time to have real disclosure and adversarial checks — rather than one-sided, selective, unverifiable disclosure — and when it comes time to determine if government officials are breaking the law, the administration ludicrously claims that it is too dangerous even to confirm if such a program exists (and disgracefully deferential federal courts in the post-9/11 era typically acquiesce to those claims). So here we have the nauseating spectacle of the Obama administration secretly targeting its own citizens for assassination, boasting in public about it in order to show how Tough and Strong the President is, but then hiding behind broad secrecy claims to shield their conduct from meaningful transparency, public debate, and legal review, all while pretending that they are motivated by lofty National Security Concerns when wielding these secrecy weapons. The only thing worse than the U.S. Government’s conduct of most affairs behind a wall of secrecy is how cynical, manipulative and self-protective is its invocation of these secrecy powers.

* * * * *

Next week, from February 6-11, I’ll be speaking at numerous events around the country regarding the state of civil liberties. I’ll be in New York, Indiana, Tennessee, Ohio and — to deliver the keynote address to the ACLU in Idaho’s annual dinner — in Boise, Idaho. All events are open to the public. Event information is here.

* * * * *

Whenever these issues are discussed, people often ask what can be done about them. There are no easy answers to that question, but supporting the ACLU is definitely one important act (as I noted many times, I previously consulted with the ACLU but have not done so for a couple of years). There are several excellent civil liberties groups in the U.S. worthy of support (CCR is one example), but the ACLU is constantly at the forefront in imposing at least some substantial barriers to the government’s always-escalating abuse of its powers, and, unlike most advocacy groups in the U.S., it defends its values and imposes checks without the slightest regard for which party controls the government (recall the 2010 statement of its Executive Director, Anthony Romero, about President Obama’s civil liberties record). One can become a member of the ACLU or otherwise support its genuinely vital work here.

 

UPDATE: A very similar game is being played with regard to the U.S.’s use of drones generally. For years, Obama officials have refused even to acknowledge that there is such a thing as a CIA drone program even though everyone knows there is. But this week, the President was asked during an Internet forum about his drone attacks and he made very specific claims about it in order to glorify and justify it. Nonetheless, as this Washington Post article notes, the administration still refuses to answer any questions about the drone program — or even acknowledge its existence — based on the claim that its very existence (which the President just discussed in public) is classified.

Illustrating the absurdity of the administration’s exploitation of secrecy powers, White House spokesman Jay Carney was asked yesterday whether President Obama broke the law by disclosing information about the classified drone program, and this is what Carney said:

White House spokesman Jay Carney rebuffed questions Tuesday about whether President Obama had violated intelligence restrictions on the secret U.S. drone program in Pakistan when he openly discussed the subject the day before. . . .  Asked if the president had made a mistake, Carney said he was “not going to discuss . . . supposedly covert programs.”

He suggested that nothing Obama had said could be a security violation: “He’s the commander in chief of the armed forces of the United States. He’s the president of the United States.”

In other words, if the President discloses classified information, then it’s inherently legal, even if he does not declassify the information (a slight variation on President Nixon’s infamous if-the-President-does-it-then-it’s-legal decree). But this is exactly the opposite of what President Obama said when he publicly decreed Bradley Manning guilty: “If I was to release stuff, information that I’m not authorized to release, I’m breaking the law.” Clearly, that’s exactly what President Obama did when he discussed drones this week — and what he did before that by boasting of the classified Awlaki killing on The Tonight Show – but that’s the point: secrecy powers (like the law generally) is merely a weapon to protect and advance the interests of government officials. That’s why President Obama feels free to make whatever claims he wants about these programs to justify himself, but then turn around and tell courts that he cannot even acknowledge if they exist: that way, courts cannot examine their legality, and the public cannot learn anything about the programs that would enable them to verify the President’s assertions about them.

Glenn Greenwald (email: GGreenwald@salon.com) is a former Constitutional and civil rights litigator and is the author of two New York Times Bestselling books on the Bush administration’s executive power and foreign policy abuses. His just-released book, With Liberty and Justice for Some, is an indictment of America’s two-tiered system of justice, which vests political and financial elites with immunity even for egregious crimes while subjecting ordinary Americans to the world’s largest and most merciless penal state. Greenwald was named by The Atlantic as one of the 25 most influential political commentators in the nation. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, and is the winner of the 2010 Online Journalism Association Award for his investigative work on the arrest and oppressive detention of Bradley Manning.

The WikiLeaks Grand Jury and the still escalating War on Whistleblowing May 11, 2011

Posted by rogerhollander in Civil Liberties, Media.
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11, 2011 08:53 ET

By Glenn Greenwald
 
 
The contrast between these two headlines from this morning tells a significant story: From The Guardian (click image to enlarge):

 

From NPR:

 

___________

As Julian Assange wins the Sydney Peace Prize for “exceptional courage in pursuit of human rights,” NPR reports that “a federal grand jury in Virginia is scheduled to hear testimony on Wednesday from witnesses” in the criminal investigation of his whistle-blowing group, as “prosecutors are trying to build a case against [the] WikiLeaks founder [] whose website has embarrassed the U.S. government by disclosing sensitive diplomatic and military information.”  The NPR story — based in part on my reporting of a Grand Jury Subpoena served two weeks ago in Cambridge — explains what has long been clear: that “the WikiLeaks case is part of a much broader campaign by the Obama administration to crack down on leakers.”

Specifically, NPR accurately reports, the effort to turn Assange and WikiLeaks into criminals for doing nothing more than what newspapers, Bob Woodward, and administration officials frequently do — disclose government secrets to the public without authorization — is merely one prong in the Obama administration’s unprecedented war against whistleblowing:

A Worrisome Development

National security experts say they can’t remember a time when the Justice Department has pursued so many criminal cases based on leaks of government secrets.

Steve Aftergood of the Federation of American Scientists has been following five separate prosecutions, part of what he calls a tremendous surge by the Obama administration.

For people who are concerned about freedom of the press, access to national security information, it’s a worrisome development,” says Aftergood, who writes for the blog Secrecy News [ed: and is a vocal WikiLeaks critic]. 

Aftergood says some of the most important disclosures of the past decade, including abuses by the U.S. military at the Abu Ghraib prison in Iraq, came out because people concerned about overreach blew the whistle on the government.

 “Leaks serve a very valuable function as a kind of safety valve,” he adds. “They help us to get out the information that otherwise would be stuck.”

 The Obama Justice Department doesn’t agree.

 

The vast majority of publicly disclosed high-level government corruption and lawbreaking over the last decade has come from unauthorized leaks, with the majority of it over the last year from WikiLeaks. Thus, it’s hardly surprising that high-level government officials — even those who ran on a platform of protecting and venerating whistle-blowing — want to destroy it through a mix of persecution and intimidation.  To its credit, the DOJ recently announced that it would not prosecute Thomas Tamm, the mid-level DOJ officials who informed the New York Times about the Bush warrantless eavesdropping program.  But that has been a rare exception, as the DOJ is actively prosecuting an array of whistleblowers who exposed similar levels of corruption and wrongdoing — in blatant violation of Obama’s decree to “Look Forward, not Backward” when it comes to protecting powerful Bush-era political officials who committed serious crimes.  Indeed, the prosecution of WikiLeaks — which, unlike government employees, has no duty to safeguard government secrets — would be the greatest blow to press freedoms and whistleblowing in the last several decades at least.

Assange was awarded this peace prize yesterday because — unlike other Peace Prize recipients — his work has been relentlessly devoted to impeding wars (not escalating them) by exposing the truth about the destruction and suffering they spawn. Beyond that, even the most vehement WikiLeaks critics, such as NYT Executive Editor Bill Keller, admit that the disclosures from WikiLeaks (and allegedly Bradley Manning) played at least some role in sparking the democratic rebellions in the Middle East, as those documents highlighted in new detail the breadth of the corruption of many of those despots:

And that does not count the impact of these revelations on the people most touched by them. WikiLeaks cables in which American diplomats recount the extravagant corruption of Tunisia’s rulers helped fuel a popular uprising that has overthrown the government.

 

And yet, many of the very same people who cheer for those democratic uprisings continue simultaneously to cheer for the administration that (a) steadfastly supported those dictators (and in some cases still supports them in exchange for doing America’s bidding) while (b) persecuting with Grand Jury investigations, imprisonment, and crushing solitary confinement those who seem to have helped spawn those rebellions.  That the U.S. Government is obsessed with crushing one of the few remaining avenues for learning what it does (whistleblowing) — and forever imprisoning those who have brought more transparency to its wrongdoing and deceit than all media outlets combined (WikiLeaks, Assange and, if the accusations are true, Manning) — underscores just how central a role secrecy plays in maximizing government power and the ability of officials to abuse it.  This secrecy regime is the heart and soul of the National Security State.

But to really see the true purposes served by secrecy, just consider this truly amazing ACLU report from yesterday.  In 2009, the ACLU filed a FOIA request seeking information about how the Government has interpreted and applied the FISA Amendments Act of 2008 — the bipartisan legislation which vested lawbreaking telecoms with retroactive immunity and drastically expanded the Government’s domestic eavesdropping powers (in order to legalize the crux of the once-controversial Bush NSA program).  Unsurprisingly, the Most Transparent Administration Ever refused to provide anything other than the most heavily redacted documents in response to that FOIA request, though it was enough, explained the ACLU, to “confirm that the government had interpreted the statute as broadly as we had feared and even that the government had repeatedly violated the few limitations that the statute actually imposed.”

But since then, the ACLU has been aggressively pursuing more documents, including attempting to find out which specific private industry telecoms are cooperating in these eavesdropping programs.   Two weeks ago, the DOJ provided its explanations as to why it refuses to produce that information.  Among those documents was what the ACLU calls ” this unexpectedly honest explanation from the FBI” about the real reason it insists on concealing this information.  Just behold the noble purposes fulfilled by the secrecy regime (click on image to enlarge):

 

As the ACLU succinctly put it:

There you have it. The government doesn’t want you to know whether your internet or phone company is cooperating with its dragnet surveillance program because you might get upset and file lawsuits asserting your constitutional rights. Would it be such a bad thing if a court were to consider the constitutionality of the most sweeping surveillance program ever enacted by Congress?

 

This is the real purpose of the Government’s devotion to the secrecy regime:  it prevents any meaningful accountability on the part of those in power.  Preventing the public from knowing what they’re doing (and what their “private partners” are doing) ensures no backlash ensues and there is no accountability possible.  That, manifestly, is the Obama administration’s overarching goal in adopting the Bush/Cheney version of the “state secrets” privilege and thus shielding even presidential crimes from judicial review: by keeping everyone, including courts, in the dark about what they do, they shield themselves (the public/private consortium that runs the National Security and Surveillance States) from the rule of law.  And by keeping the public in the dark about what they do, they maintain exclusive control over information and thus shield and enable their own propaganda.

Whistleblowers in general — and WikiLeaks and Assange in particular — are one of the very, very few genuine threats to that scheme.  And that — and that alone — is why they are being targeted with such fervor and force.  And it’s why those who believe in greater transparency and in subverting that secrecy regime should do everything possible to defend whistleblowers from this assault.

* * * * *

Philosophy Professor Jonathan Lear has a very interesting article in The New Republic on what motivated P.J. Crowley to speak out against Bradley Manning’s detention conditions and the important public values fulfilled by that type of (exceedingly rare) candor from public officials.

And for those in Boston: on May 26, I’ll be speaking to the annual meeting of the ACLU in Massachusetts.  Ticket information is here.  In advance of that event, I was interviewed by them on multiple civil liberties issues; those short video segments can be viewed here.

Is the White House Pressuring DOJ to Delay Torture Report Until Health Care Bill Passes? January 27, 2010

Posted by rogerhollander in Criminal Justice, Torture.
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Tuesday 26 January 2010

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

photo
(Image: Jared Rodriguez / t r u t h o u t; Adapted: U.S. Military – 1, 2)

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.

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

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

Saturday 14 November 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

by Glenn Greenwald

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

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

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

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

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

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

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

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

© 2009 Salon.com

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

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

Posted by rogerhollander in Criminal Justice, Torture.
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Jason Leopold

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Copyright © 2008 The Public Record. All rights reserved.

Obama’s Latest Effort to Conceal Evidence of Bush Era Crimes May 14, 2009

Posted by rogerhollander in Barack Obama, Criminal Justice, Torture.
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by Glenn Greenwald

It’s difficult to react much to Obama’s complete reversal today of his own prior decision to release photographs depicting extreme detainee abuse by the United States.  He’s left no doubt that this is what he does:  ever since he was inaugurated, Obama has taken one extreme step after the next to keep concealed both the details and the evidence of Bush’s crimes, including rendition, torture and warrantless eavesdropping.  The ACLU’s Amrit Singh — who litigated the thus-far-successful FOIA lawsuit to compel disclosure of these photographs — is exactly right:

The reversal is another indication of a continuance of the Bush administration policies under the Obama administration.  President Obama’s promise of accountability is meaningless, this is inconsistent with his promise of transparency, it violates the government’s commitment to the court. People need to examine these abusive photographs, but also the government officials need to be held accountable.

Andrew Sullivan, one of Obama’s earliest and most enthusiastic supporters, wrote of today’s photograph-concealment decision and yesterday’s story of Obama’s pressuring Britain to conceal evidence of Binyam Mohamed’s torture:

Slowly but surely, Obama is owning the cover-up of his predecessors’ war crimes. But covering up war crimes, refusing to prosecute them, promoting those associated with them, and suppressing evidence of them are themselves violations of Geneva and the UN Convention. So Cheney begins to successfully coopt his successor. . .

From extending and deepening the war in Afghanistan, to suppressing evidence of rampant and widespread abuse and torture of prisoners under Bush, to thuggishly threatening the British with intelligence cut-off if they reveal the brutal torture inflicted on Binyam Mohamed, Obama now has new cheer-leaders: Bill Kristol, Michael Goldfarb and Max Boot. . . .

Those of us who held out hope that the Obama administration would not be actively covering up the brutal torture of a Gitmo prisoner who was subject to abuse in several countries must now concede the obvious. They’re covering it up – in such a crude and obvious fashion that it is actually a crime in Britain.

John Aravosis said Obama’s logic was “a bit Bushian.”  Steve Hynd observes that “Obama Trades Our Principles For Cheneyism.”  TPM decalres:  “Obama falls back on Bushisms.”  Dan Froomkin writes:  “Obama Joins the Cover-Up.”  I’ll just note a few points for now about Obama’s efforts to keep these photographs concealed:

(1) Think about what Obama’s rationale would justify.  Obama’s claim — that release of the photographs “would be to further inflame anti-American opinion and to put our troops in greater danger” — means we should conceal or even outright lie about all the bad things we do that might reflect poorly on us.  For instance, if an Obama bombing raid slaughters civilians in Afghanistan (as has happened several times already), then, by this reasoning, we ought to lie about what happened and conceal the evidence depicting what was done — as the Bush administration did — because release of such evidence would “would be to further inflame anti-American opinion and to put our troops in greater danger.”  Indeed, evidence of our killing civilians in Afghanistan inflames anti-American sentiment far more than these photographs would.  Isn’t it better to hide the evidence showing the bad things we do?

Apparently, the proper reaction to heinous acts by our political leaders is not to hold them accountable but, instead, to hide evidence of what they did.  That’s the warped mentality Obama is endorsing today, and has been endorsing since January 20.

(2) How can anyone who supports what Obama is doing here complain about the CIA’s destruction of their torture videos?  The torture videos, like the torture photos, would, if released, generate anti-American sentiment and make us look bad.  By Obama’s reasoning, didn’t the CIA do exactly the right thing by destroying them?

(3) This is just another manifestation of the generalized Beltway religion that we should suppress and ignore the heinous acts our government committed and to which we acquiesced, because if we just agree to forget about all of it, then we can blissfully pretend that it never happened and avoid doing anything about it.

(4) Obama’s claim that he has to hide this evidence to protect our soldiers is the sort of crass, self-serving exploitation of “The Troops” which was the rancid hallmark of Bush/Cheney rhetoric.  Everyone knows what the real effect of these photographs would be:  they would highlight just how brutal and criminal was our treatment of detainees in our custody, and further underscore how amoral and lawless are Obama’s calls that we Look To the Future, Not the Past.  Manifestly, that is why they’re being suppressed.

(5) For all of you defend-Obama-at-all-cost cheerleaders who are about to descend into my comment section and other online venues to explain how Obama did the right thing because of National Security, I have this question:  if you actually want to argue that concealing these photographs is the right thing to do, then you must have been criticizing Obama when, two weeks ago, he announced that he would release them.  Otherwise, it’s pretty clear that you don’t have any actual beliefs other than:  “I support what Obama does because it’s Obama who does it.”   So for those arguing today that concealing these photographs is the right thing to do:  were you criticizing Obama two weeks ago for announcing he would release these photographs?

Also, the OLC torture memos released several weeks ago surely increased anti-American sentiment.  Indeed, those on the Right who objected to the release of those memos cited exactly that argument.  How can anyone cheer on Obama’s decision today to conceal these photographs while also cheering on his decision to release the OLC memos?  Those who have any intellectual coherence would have to oppose both or support both.   Those two decisions only have one fact in common: Obama made them.  Thus, the only way to cheer on both decisions is to be guided by the modified Nixonian mantra: what Obama does is right because Obama does it.

Also, during the Bush years, were you — along with Bill Kristol and National Review — attacking the ACLU and Congressional Democrats for demanding that the Bush administration stop concealing evidence of its torture, on the ground that disclosure of such evidence would harm America’s national security?  Were you defending Bush then for doing what Obama is doing now?

(6) If these photographs don’t shed any new light on what our Government did — if all they do is replicate what we already know from the Abu Ghraib photographs — then how can it possibly be the case that they will do any damage?  To argue that they will harm how we are perceived is, necessarily, to acknowledge that they reveal new information that is not already widely known.

(7) We are supposed to have what is called Open Government in the United States.  The actions of our government — and the evidence documenting it — is presumptively available to the public.  Only an authoritarian would argue that evidence of government actions should be kept secret in the absence of a compelling reason to release it.  

The presumption is the opposite:  documents in the government’s possession relating to what it does is presumptively public in the absence of compelling reasons to keep it concealed.  That the documents reflect poorly on the government is not such a reason to keep them concealed.  If it were, then it would always be preferable to have political leaders cover-up their crimes on the ground that disclosing them would reflect poorly on the U.S. and spur anti-American sentiment.  Open government is necessary precisely because only transparency deters political leaders from doing heinous acts in the first place.

 

UPDATE:  Here (.pdf) is the letter the DOJ sent to the court this afternoon, advising the judge that they changed their minds “at the highest levels of Government” and would not, as previously promised, release the photographs, but instead would attempt to appeal the Second Circuit’s decision compelling their release to the Roberts Supreme Court.

 

UPDATE II:  In comments, Paul Daniel Ash addresses the Obama supporters who are defending Obama’s decision to keep these photographs concealed on the ground that “no good would come” from disclosure:

I’m pretty jaded, but even I’m outraged and saddened by the number of voices being raised in this comment thread supporting the decision to conceal these photos.

“No good will come?” Would we even have had an Abu Ghraib scandal without the pictures of bloody prisoners and men cowering in front of dogs? “No good?” Is there or is there not an active debate in this country about whether or not torture is acceptable? “No good?” Did a United States Senator not say just today, in the Judiciary Subcommittee on Administrative Oversight and the Courts, that torture techniques have been used for the past five centuries because “apparently they work?” 

“No good will come?”

Indeed, it’s pretty hard to believe that the people who are arguing that “no good will come” from release of these photos either (a) lived through the impact of the Abu Ghraib photos and/or (b) are living through the “torture debate” we are now having. 

Photographs convey the reality of things in a way that mere words cannot.  They prevent people who want to deny what was done the ability to do so.  They force citizens to face what their country did and what they are now justifying and advocating.  They impede the ability of political leaders to use euphemisms to obscure the truth.  They show in graphic detail what the effects are of sanctioning torture policies.  They prove that this was about more than “dunking three terrorists into water.”  They highlight the fact that no decent person believes that this should all just be forgotten and its victims told that they have no right to have accountability.  That’s precisely why the photographs are being suppressed:  because of how much good they would do.

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