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Welcome to Boston, Mr. Rumsfeld. You Are Under Arrest. September 23, 2011

Posted by rogerhollander in Criminal Justice, Human Rights, Iraq and Afghanistan, Torture.
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http://www.opednews.com/articles/1/Welcome-to-Boston-Mr-Rum-by-Ralph-Lopez-110920-706.html

September 23, 2011

By Ralph Lopez

(about the author)
Former Secretary of Defense Donald Rumsfeld has been stripped of legal immunityfor acts of torture against US citizens authorized while he was in office.   The 7th Circuit made the ruling in the case of two American contractors who were tortured by the US military in Iraq after uncovering a smuggling ring within an Iraqi security company.  The company was under contract to the Department of Defense.   The company was assisting Iraqi insurgent groups in the “mass acquisition” of American weapons.  The ruling comes as Rumsfeld begins his book tour with a visit to Boston on Monday, September 26, and as new, uncensored photos of Abu Ghraib spark fresh outrage across Internet.  Awareness is growing that Bush-era crimes went far beyond mere waterboarding.

Torture Room, Abu Ghraib

Republican Senator Lindsey Graham told reporters in 2004of photos withheld by the Defense Department from Abu Ghraib, “The American public needs to understand, we’re talking about rape and murder here…We’re not just talking about giving people a humiliating experience. We’re talking about rape and murder and some very serious charges.”  And journalist Seymour Hersh says: “boys were sodomized with the cameras rolling. And the worst above all of that is the soundtrack of the boys shrieking that your government has.”

Rumsfeld resigned days before a criminal complaintwas filed in Germany in which the American general who commanded the military police battalion at Abu Ghraib had promised to testify.  General Janis Karpinski in an interview with Salon.comwas asked: “Do you feel like Rumsfeld is at the heart of all of this and should be held completely accountable for what happened [at Abu Ghraib]?”

Karpinski answered: “Yes, absolutely.”  In the criminal complaint filed in Germany against Rumsfeld, Karpinski submitted 17 pages of testimonyand offered to appear before the German prosecutor as a witness.  Congressman Kendrick Meek of Florida, who participated in the hearings on Abu Ghraib, said of Rumsfeld: “There was no way Rumsfeld didn’t know what was going on. He’s a guy who wants to know everything.”

And Major General Antonio Taguba, who led the official Army investigation into Abu Ghraib, said in his report:

“there is no longer any doubt as to whether the [Bush] administration has committed war crimes. The only question is whether those who ordered the use of torture will be held to account.”

Abu Ghraib Prisoner Smeared with Feces

In a puzzling and incriminating move, Camp Cropper base commander General John Gardner ordered Nathan Ertel released on May 17, 2006, while keeping Donald Vance in detention for another two months of torture.  By ordering the release of one man but not the other, Gardner revealed awareness of the situation but prolonged it at the same time.

It is unlikely that Gardner could act alone in a situation as sensitive as the illegal detention and torture of two Americans confirmed by the FBI to be working undercover in the national interest, to prevent American weapons and munitions from reaching the hands of insurgents, for the sole purpose of using them to kill American troops.  Vance and Ertel suggest he was acting on orders from the highest political level.

The forms of torture employed against the Americans included “techniques” which crop up frequently in descriptions of Iraqi and Afghan prisoner abuse at Bagram, Guantanamo, and Abu Ghraib.  They included “walling,” where the head is slammed repeatedly into a concrete wall, sleep deprivation to the point of psychosis by use of round-the-clock bright lights and harsh music at ear-splitting volume, in total isolation, for days, weeks or months at a time, and intolerable cold.

The 7th Circuit ruling is the latest in a growing number of legal actions involving hundreds of former prisoners and torture victims filed in courts around the world.  Criminal complaints have been filed against Rumsfeld and other Bush administration officials in Germany, France, and Spain.  Former President Bush recently curbed travel to Switzerlanddue to fear of arrest following criminal complaints lodged in Geneva.  “He’s avoiding the handcuffs,” Reed Brody, counsel for Human Rights Watch, told Reuters.  And this month Canadian citizens forced Bush to cancel an invitation-only appearance in Toronto.

And the Mayor of London threatened Bush with arrest for war crimes earlier this year should he ever set foot in his city, saying that were heto land in London to “flog his memoirs,” that “the real trouble — from the Bush point of view — is that he might never see Texas again.”

Former Secretary of State Colin Powell’s Chief-of-Staff Col. Lawrence Wilkerson surmised on MSNBCearlier this year that soon, Saudi Arabia and Israel will be “the only two countries Cheney, Rumsfeld and the rest will travel too.”

Abu Ghraib: Dog Bites

What would seem to make Rumsfeld’s situation more precarious is the number of credible former officials and military officers who seem to be eager to testify against him, such as Col. Wilkerson and General Janis Karpinsky.

In a signed declaration in support of torture plaintiffs in a civil suit naming Rumsfeld in the US District Court for the District of Columbia, Col. Wilkerson, one of Rumsfeld’s most vociferous critics,  stated:“I am willing to testify in person regarding the  content of this declaration, should that be necessary.”  That declaration, among other things, affirmed that a documentary on the chilling murder of a 22-year-old Afghan farmer and taxi driver in Afghanistan was “accurate.”  Wilkerson said earlier this yearthat in that case, and in the case of another murder at Bagram at about the same time, “authorization for the abuse went to the very top of the United States government.”

Dilawar

The young farmer’s name was Dilawar.  The New York Times reported on May 20, 2005:

“Four days before [his death,] on the eve of the Muslim holiday of Id al-Fitr, Mr. Dilawar set out from his tiny village of Yakubi in a prized new possession, a used Toyota sedan that his family bought for him a few weeks earlier to drive as a taxi.
On the day that he disappeared, Mr. Dilawar’s mother had asked him to gather his three sisters from their nearby villages and bring them home for the holiday. However, he needed gas money and decided instead to drive to the provincial capital, Khost, about 45 minutes away, to look for fares.”

Dilawar’s misfortune was to drive past the gate of an American base which had been hit by a rocket attack that morning.  Dilawar and his fares were arrested at a checkpoint by a warlord, who was later suspected of mounting the rocket attack himself, and then turning over randam captures like Dilawar in order to win trust.

The UK Guardian reports:

“Guards at Bagram routinely kneed prisoners in their thighs — a blow called a “peroneal strike”…Whenever a guard did this to Dilawar, he would cry out, “Allah! Allah!” Some guards apparently found this amusing, and would strike him repeatedly to show off the behavior to buddies.
One military policeman told investigators, “Everybody heard him cry out and thought it was funny. … It went on over a 24-hour period, and I would think that it was over 100 strikes.””

The New York Times reported that on the last day of his life, four days after he was arrested:

“Mr. Dilawar asked for a drink of water, and one of the two interrogators, Specialist Joshua R. Claus, 21, picked up a large plastic bottle. But first he punched a hole in the bottom, the interpreter said, so as the prisoner fumbled weakly with the cap, the water poured out over his orange prison scrubs. The soldier then grabbed the bottle back and began squirting the water forcefully into Mr. Dilawar’s face.
“Come on, drink!” the interpreter said Specialist Claus had shouted, as the prisoner gagged on the spray. “Drink!”

At the interrogators’ behest, a guard tried to force the young man to his knees. But his legs, which had been pummeled by guards for several days, could no longer bend. An interrogator told Mr. Dilawar that he could see a doctor after they finished with him. When he was finally sent back to his cell, though, the guards were instructed only to chain the prisoner back to the ceiling.

“Leave him up,” one of the guards quoted Specialist Claus as saying.”

The next time the prison medic saw Dilawar a few hours later, he was dead, his head lolled to one side and his body beginning to stiffen.  A coroner would testify that his legs “had basically been pulpified.”The Army coroner, Maj. Elizabeth Rouse, said: “I’ve seen similar injuries in an individual run over by a bus.” She testified that had he lived, Dilawar’s legs would have had to be amputated.

Despite the military’s false statement that Dilawar’s death was the result of “natural causes,” Maj. Rouse marked the death certificate as a “homicide” and arranged for the certificate to be delivered to the family.  The military was forced to retract the statement when a reporter for the New York Times, Carlotta Gall, tracked down Dilawar’s family in Afghanistan and was given a folded piece of paper by Dilawar’s brother.  It was the death certificate, which he couldn’t read, because it was in English.

The practice of forcing prisoners to stand for long periods of time, links Dilawar’s treatment to a memo which bears Rumsfeld’s own handwriting on that particular subject.  Obtained through a Freedom of Information Act Request, the memo may show how fairly benign-sounding authorizations for clear circumventions of the Geneva Conventions may have translated into gruesome practice on the battlefield.

The memo, which addresses keeping prisoners “standing” for up to four hours, is annotated with a note initialed by Rumsfeld reading: “”I stand for 8–10 hours a day. Why is standing limited to 4 hours?”  Not mentioned in writing anywhere is anything about accomplishing this by chaining prisoners to the ceiling.  There is evidence that, unable to support his weight on tiptoe for the days on end he was chained to the ceiling, Dilawars arms dislocated, and they flapped around uselessly when he was taken down for interrogation.  The National Catholic Reporter writes “They flapped like a bird’s broken wings”

Contradicting, on the record, a February 2003 statement by Rumsfeld’s top commander in Afghanistan at the time, General Daniel McNeill, that “we are not chaining people to the ceilings,” is Spc. Willie Brand, the only soldier disciplined in the death of Dilawar, with a reduction in rank.  Told of McNeill’s statement, Brand told Scott Pelley on 60 Minutes: “Well, he’s lying.”  Brand said of his punishment: “I didn’t understand how they could do this after they had trained you to do this stuff and they turn around and say you’ve been bad”

Exhibit: Dilawar Death Certificate marked “homicide”

Exhibit: Rumsfeld Memo: “I stand 8-10 hours a day.  Why only 4 hours?”

Dilawar’s daughter and her grandfather

Binyam, Genital-Slicing

Binyam Mohamed was seized by the Pakistani Forces in April 2002 and turned over to the Americans for a $5,000 bounty.  He was held for more than five years without charge or trial in Bagram Air Force Base, Guantánamo Bay, and third country “black” sites.

“They cut off my clothes with some kind of doctor’s scalpel. I was naked. I tried to put on a brave face. But maybe I was going to be raped. Maybe they’d electrocute me. Maybe castrate me…
One of them took my penis in his hand and began to make cuts. He did it once, and they stood still for maybe a minute, watching my reaction. I was in agony. They must have done this 20 to 30 times, in maybe two hours. There was blood all over. “I told you I was going to teach you who’s the man,” [one] eventually said.

They cut all over my private parts. One of them said it would be better just to cut it off, as I would only breed terrorists. I asked for a doctor.”

I was in Morocco for 18 months. Once they began this, they would do it to me about once a month. One time I asked a guard: “What’s the point of this? I’ve got nothing I can say to them. I’ve told them everything I possibly could.”

“As far as I know, it’s just to degrade you. So when you leave here, you’ll have these scars and you’ll never forget. So you’ll always fear doing anything but what the US wants.”

Later, when a US airplane picked me up the following January, a female MP took pictures. She was one of the few Americans who ever showed me any sympathy. When she saw the injuries I had she gasped. They treated me and took more photos when I was in Kabul. Someone told me this was “to show Washington it’s healing”.

The obvious question for any prosecutor in Binyam’s case is: Who does “Washington” refer to?  Rumsfeld?  Cheney?  Is it not in the national interest to uncover these most depraved of sadists at the highest level?  US Judge Gladys Kessler, in her findings on Binyam made in relation to a Guantanamo prisoner’s petition, found Binyam exceedingly credible.  She wrote:

“His genitals were mutilated. He was deprived of sleep and food. He was summarily transported from one foreign prison to another. Captors held him in stress positions for days at a time. He was forced to listen to piercingly loud music and the screams of other prisoners while locked in a pitch-black cell. All the while, he was forced to inculpate himself and others in plots to imperil Americans. The government does not dispute this evidence.”

Obama: Torturers’ Last Defense

The prospect of Rumsfeld in a courtroom cannot possibly be relished by the Obama administration, which has now cast itself as the last and staunchest defender of the embattled former officials, including John Yoo, Alberto Gonzalez, Judge Jay Bybee, Dick Cheney, George W. Bush, and others.  The administration employed an unprecedented twisting of arms in order to keep evidence in a lawsuit which Binyam had filedin the UK suppressed, threatening an end of cooperation between the British MI5 and the CIA.  This even though the British judges whose hand was forced puzzled that the evidence “contained “no disclosure of sensitive intelligence matters.”  The judges suggested another reason for the secrecy requested by the Obama administration, that it might be “politically embarrassing.”

The Obama Justice Department’s active involvement in seeking the dismissal of the cases is by choice, as the statutory obligation of the US Attorney General to defend cases against public officials ends the day they leave office.  Indeed, the real significance of recent court decisions, the one by the 7th Circuit and yet another against Rumsfeld in a DC federal court, may be the clarification the common misconception that high officials are forever immune for crimes committed while in office, in the name of the state.  The misconception persists despite just a moment of thought telling one that if this were true, Hermann Goering, Augusto Pinochet, and Charles Taylor would never have been arrested, for they were all in office at the time they ordered atrocities, and they all invoked national security.

Andy Worthington writes that:

“As it happens, one of the confessions that was tortured out of Binyam is so ludicrous that it was soon dropped…The US authorities insisted that Padilla and Binyam had dinner with various high-up members of al-Qaeda the night before Padilla was to fly off to America. According to their theory the dinner party had to have been on the evening of 3 April in Karachi … Binyam was  meant to have dined with Khalid Sheikh Mohammed, Abu Zubaydah, Sheikh al-Libi, Ramzi bin al-Shibh and Jose Padilla.” What made the scenario “absurd,” as [Binyam’s lawyer] pointed out, was that “two of the conspirators were already in U.S. custody at the time — Abu Zubaydah was seized six days before, on 28 March 2002, and al-Libi had been held since November 2001.””

The charges against Binyam were dropped, after the prosecutor, Lieutenant Colonel Darrel Vandeveld, resigned. He told the BBC later that he had concerns at the repeated suppression of evidence that could prove prisoners’ innocence.

The litany of tortures alleged against Rumsfeld in the military prisons he ran could go on for some time.  The new photographic images from Abu Ghraib make it hard to conceive of how the methods of torture and dehumanization could have possibly served a national purpose.

The approved use of attack dogs, sexual humiliation, forced masturbation, and treatments which plumb the depths of human depravity are either documented in Rumsfeld’s own memos, or credibly reported on.

The UK Guardian writes:

The techniques devised in the system, called R2I – resistance to interrogation – match the crude exploitation and abuse of prisoners at the Abu Ghraib jail in Baghdad.

One former British special forces officer who returned last week from Iraq, said: “It was clear from discussions with US private contractors in Iraq that the prison guards were using R2I techniques, but they didn’t know what they were doing.””

Torture Now Aimed at Americans, Programs Designed to Obtain False Confessions, Not Intelligence

The worst of the worst is that Rumsfeld’s logic strikes directly at the foundations of our democracy and the legitimacy of the War on Terror.  The torture methods studied and adopted by the Bush administration were not new, but adopted from the Survival, Evasion, Resistance, and Escape program (SERE) which is taught to elite military units.  The program was developed during the Cold War, in response to North Korean, Chinese, and Soviet Bloc torture methods.  But the aim of those methods was never to obtain intelligence, but to elicit false confessions.  The Bush administration asked the military to “reverse engineer” the methods, i.e. figure out how to break down resistance to false confessions.

In the 2008 Senate Armed Services Committee reportwhich indicted high-level Bush administration officials, including Rumsfeld, as bearing major responsibility for the torture at Abu Gharib, Guantanamo, and Bagram, the Committee said:

“SERE instructors explained “Biderman’s Principles” — which were based on coercive methods used by the Chinese Communist dictatorship to elicit false confessions from U.S. POWs during the Korean War — and left with GTMO personnel a chart of those coercive techniques.”

The Biderman Principles were based on the work of Air Force Psychiatrist Albert Biderman, who wrote the landmark “Communist Attempts to Elecit False Confessions from Air Force Prisoners of War,” on which SERE resistance was based.  Biderman wrote:

“The experiences of American Air Force prisoners of war in Korea who were pressured for false confessions, enabled us to compile an outline of methods of eliciting compliance, not much different, it turned out, from those reported by persons held by Communists of other nations.  I have prepared a chart showing a condensed version of this outline.”

The chart is a how-to for communist torturers interested only in false confessions for propaganda purposes, not intelligence.  It was the manual for, in Biderman’s words, “brainwashing.”  In the reference for Principle Number 7, “Degradation,” the chart explains:

“Makes Costs of Resistance Appear More Damaging to Self-Esteem than Capitulation; Reduces Prisoner to “Animal Level…Personal Hygiene Prevented; Filthy, Infested Surroundings; Demeaning Punishments; Insults and Taunts; Denial of Privacy”

Appallingly, this could explain that even photos such as those of feces-smeared prisoners at Abu Ghraib might not, as we would hope, be only the individual work of particularly demented guards, but part of systematic degradation authorized at the highest levels.

Exhibit: Abu Ghraib, Female POW

This could go far toward explaining why the Bush administration seemed so tone-deaf to intelligence professionals, including legendary CIA Director William Colby, who essentially told them they were doing it all wrong.  A startling level of consensus existed within the intelligence community that the way to produce good intelligence was to gain the trust of prisoners and to prove everything they had been told by their recruiters, about the cruelty and degeneracy of America, to be wrong.

But why would the administration care about what worked to produce intelligence, if the goal was never intelligence in the first place?  What the Ponzi scheme of either innocent men or low-level operatives incriminating each other  DID accomplish, was produce a framework of rapid successes and trophies in the new War on Terror.

And now, American contractors Vance and Ertel show, unless there are prosecutions, the law has effectively changed and they can do it to Americans. Jane Mayer in the New Yorker describes a new regime for prisoners which has become coldly methodical, quoting a report issued by the Parliamentary Assembly of the Council of Europe, titled “Secret Detentions and Illegal Transfers of Detainees.”  In the report on the CIA paramilitary Special Activities Division detainees were “taken to their cells by strong people who wore black outfits, masks that covered their whole faces, and dark visors over their eyes.”

Mayer writes that a former member of a C.I.A. transport team has described the “takeout” of prisoners as:

“a carefully choreographed twenty-minute routine, during which a suspect was hog-tied, stripped naked, photographed, hooded, sedated with anal suppositories, placed in diapers, and transported by plane to a secret location.”

A person involved in the Council of Europe inquiry, referring to cavity searches and the frequent use of suppositories, likened the treatment to “sodomy.” He said, “It was used to absolutely strip the detainee of any dignity. It breaks down someone’s sense of impenetrability.”

Of course we have seen these images before, in the trial balloon treatment of Jose Padilla, the first American citizen arrested and declared “enemy combatant” in the first undeclared war without end.  The designation placed Padilla outside of his Bill of Rights as an American citizen even though he was arrested on American soil.  Padilla was kept in isolation and tortured for nearly 4 years before being released to a civilian trial, at which point according to his lawyer he was useless in his own defense, and exhibited fear and mistrust of everyone, complete docility, and a range of nervous facial tics.

Jose Padilla in Military Custody

Rumsfeld’s avuncular “golly-gee, gee-whiz”  performances in public are legendary.  Randall M. Schmidt, the Air Force Lieutenant General appointed by the Army to investigate abuses at Guantanamo, and who recommended holding Rumsfeld protege and close associate General Geoffrey Miller “accountable” as the commander of Guantanamo, watched Rumsfeld’s performance before a House Committee with some interest. “He was going, “My God! Did I authorize putting a bra and underwear on this guy’s head and telling him all his buddies knew he was a homosexual?’ ”

But General Taguba said of Rumsfeld: “Rummy did what we called “case law’ policy — verbal and not in writing. What he’s really saying is that if this decision comes back to haunt me I’ll deny it.”

Taguba went on: “Rumsfeld is very perceptive and has a mind like a steel trap. There’s no way he’s suffering from C.R.S.–Can’t Remember sh*t.”

Miller was the general deployed by Rumsfeld to “Gitmo-ize” Abu Ghraib in 2003 after Rumsfeld had determined they were being too “soft” on prisoners.  He said famously in one memo “you have to treat them like dogs.”  General Karpinski questioned the fall of Charles Graner and Lyndie England as the main focus of low-level “bad apple” abuse in the Abu Ghraib investigations.  “Did Lyndie England deploy with a dog leash?” she asks.

Exhibit: Dog deployed at Abu Ghraib, mentally-ill prisoner

Abu Ghraib prisoner in “restraint” chair, screaming “Allah!!”

Rumsfeld’s worry now is the doctrine of Universal Jurisdiction, as well as ordinary common law.  The veil of immunity stripped in civil cases would seem to free the hand of any prosecutor who determines there is sufficient evidence that a crime has been committed based on available evidence.  A grand jury’s bar for opening a prosecution is minimal.  It has been said “a grand jury would indict a ham sandwich.”  Rumsfeld, and the evidence against him, would certainly seem to pass this test.

The name Dilawar translates to English roughly as “Braveheart.”  Let us pray he had one to endure the manner of his death.  But the more spiritual may believe that somehow it had a purpose, to shock the world and begin the toppling of unimaginable evil among us.  Dilawar represented the poorest of the poor and most powerless, wanting only to pick up his three sisters, as his mother had told him to, for the holiday.  The question now is whether Americans will finally draw a line, as the case against Rumsfeld falls into place and becomes legally bulletproof.  Andy Worthington noted that the case for prosecutors became rock solid when Susan Crawford, senior Pentagon official overseeing the Military Commissions at Guantánamo — told Bob Woodward that the Bush administration had “met the legal definition of torture.”

As Rumsfeld continues his book tour and people like Dilawar are remembered, it is not beyond the pale that an ambitious prosecutor, whether local, state, or federal, might sense the advantage.  It is perhaps unlikely, but not inconceivable, that upon landing at Logan International Airport on Wed., Sept. 21st, or similarly anywhere he travels thereafter, Rumsfeld could be greeted with the words such as: “Welcome to Boston, Mr. Secretary.  You are under arrest.”

Take action — click here to contact your local newspaper or congress people:
Prosecute Rumsfeld NOW for torture!

Click here to see the most recent messages sent to congressional reps and local newspapers

Massachusetts District Attorneys Who Can Indict Rumsfeld, Please Email them this post and call them.SAMPLE INDICTMENT
LEGAL BACKGROUND

RELEVANT US CODE:

a. Conspiracy to torture in violation of the U.S. Code, in both Title 18, Section 2340

b. Conspiracy to commit war crimes including torture, cruel or inhuman treatment, murder, mutilation or maiming and intentionally causing serious bodily injury in violation of Title 18, Section 2441

Massachusetts Attorney General Martha Coakley:
email:  Email address removed

One Ashburton Place
Boston, MA 02108 -1518
Phone: (617) 727-2200 begin_of_the_skype_highlighting            (617) 727-2200     end_of_the_skype_highlighting

//

And Gov. Duval Patrick has an obligation to order the state police to do the same: CONTACT FORM

Local District Attorneys
Berkshire County: District Attorney David F. Capeless
Elected November 2006
OFFICE ADDRESS:     P.O. Box 973
888 Purchase Street
New Bedford, MA 02741
PHONE:     (508) 997-0711 begin_of_the_skype_highlighting            (508) 997-0711     end_of_the_skype_highlighting
FAX:     (508) 997-0396
INTERNET ADDRESS:     http://www.bristolda.com

Bristol County     District Attorney C. Samuel Sutter
Appointed March 2004
Elected November 2004
OFFICE ADDRESS:     7 North Street
P.O. Box 1969
Pittsfield, MA 01202-1969
PHONE:     (413) 443-5951 begin_of_the_skype_highlighting            (413) 443-5951     end_of_the_skype_highlighting
FAX:     (413) 499-6349
Internet Address:     http://www.mass.gov/…

Cape & Islands     District Attorney Michael O’Keefe
Elected November 2002
OFFICE ADDRESS:     P.O.Box 455
3231 Main Street
Barnstable, MA 02630
PHONE:     (508) 362-8113 begin_of_the_skype_highlighting            (508) 362-8113     end_of_the_skype_highlighting
FAX:     (508) 362-8221
INTERNET ADDRESS:     http://www.mass.gov/…

Essex County: District Attorney Jonathan W. Blodgett
Elected November 2002
OFFICE ADDRESS:     Ten Federal Street
Salem, MA 01970
PHONE:     (978) 745-6610 begin_of_the_skype_highlighting            (978) 745-6610     end_of_the_skype_highlighting
FAX:     (978) 741-4971
INTERNET ADDRESS:     http://www.mass.gov/…

Hampden     District Attorney Mark Mastroianni
Elected 2010
OFFICE ADDRESS:     Hall of Justice
50 State Street
Springfield, MA 01103
PHONE:     (413) 747-1000 begin_of_the_skype_highlighting            (413) 747-1000     end_of_the_skype_highlighting
FAX:     (413) 781-4745

Middlesex County: District Attorney Gerard T. Leone, Jr.
Elected November 2006
OFFICE ADDRESS:     15 Commonwealth Avenue
Woburn, MA 01801
PHONE:     (781) 897-8300 begin_of_the_skype_highlighting            (781) 897-8300     end_of_the_skype_highlighting
FAX:     ((781) 897-8301
INTERNET ADDRESS:     http://www.middlesexda.com

Norfolk     District Attorney Michael Morrissey
Elected 2010
OFFICE ADDRESS:     45 Shawmut Ave.
Canton, MA 02021
PHONE:     (781) 830-4800 begin_of_the_skype_highlighting            (781) 830-4800     end_of_the_skype_highlighting
FAX:     (781) 830-4801
INTERNET ADDRESS:     http://www.mass.gov/…

Northwestern     District Attorney David Sullivan
Elected 2010
HAMPSHIRE OFFICE ADDRESS:     One Gleason Plaza
Northampton, MA 01060
PHONE:     (413) 586-9225 begin_of_the_skype_highlighting            (413) 586-9225     end_of_the_skype_highlighting
FAX:     (413) 584-3635
FRANKLIN OFFICE ADDRESS:     13 Conway Street
Greenfield, MA 01301
PHONE:     (413) 774-3186 begin_of_the_skype_highlighting            (413) 774-3186     end_of_the_skype_highlighting
FAX:     (413) 773-3278
WEBSITE:
Northwestern     http://www.mass.gov/…

< a href=”http://media.fastclick.net/w/click.here?sid=48406&m=6&c=1&#8243; target=”_blank”><img src=”http://media.fastclick.net/w/get.media?sid=48406&m=6&tp=8&d=s&c=1&#8243; width=300 height=250 border=1></Plymouth     District Attorney Timothy J. Cruz
Appointed November 2001
Elected November 2002
OFFICE ADDRESS:     32 Belmont Street
Brockton, MA 02303
PHONE:     (508) 584-8120 begin_of_the_skype_highlighting            (508) 584-8120     end_of_the_skype_highlighting
FAX:     (508) 586-3578
INTERNET ADDRESS:     http://www.mass.gov/…

Suffolk County:     District Attorney Daniel F. Conley
Appointed January 2002
Elected November 2002
OFFICE ADDRESS:     One Bulfinch Place
Boston, MA 02114
PHONE:     (617) 619-4000 begin_of_the_skype_highlighting            (617) 619-4000     end_of_the_skype_highlighting
FAX:     (617) 619-4009
INTERNET ADDRESS:     http://www.mass.gov/…

Worcester     District Attorney Joseph D. Early, Jr.
Elected November 2006
OFFICE ADDRESS:     Courthouse – Room 220
2 Main Street
Worcester, MA 01608
PHONE:     (508) 755-8601 begin_of_the_skype_highlighting            (508) 755-8601     end_of_the_skype_highlighting
FAX:     (508) 831-9899
INTERNET ADDRESS:     http://www.worcesterda.com

Jose Padilla and how American justice functions September 20, 2011

Posted by rogerhollander in Civil Liberties, Criminal Justice, Human Rights, War on Terror.
Tags: , , , , , , , , , , , , , , ,
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By Glenn Greenwald

(updated below – Update II)

The story of Jose Padilla, continuing through the events of yesterday, expresses so much of the true nature of the War on Terror and especially America’s justice system.  In 2002, the American citizen was arrested at Chicago’s O’Hare Airport, publicly labeled by John Ashcroft as The Dirty Bomber, and then imprisoned for the next three years on U.S. soil as an “enemy combatant” without charges of any kind, and denied all contact with the outside world, including even a lawyer.  During his lawless incarceration, he was kept not just in extreme solitary confinement but extreme sensory deprivation as well, and was abused and tortured to the point of severe and probably permanent mental incapacity (Bush lawyers told a court that they were unable to produce videos of Padilla’s interrogations because those videos were mysteriously and tragically “lost”).

Needless to say, none of the government officials responsible for this abuse of a U.S. citizen on American soil has been held accountable in any way.  That’s because President Obama decreed that Bush officials shall not be criminally investigated for War on Terror crimes, while his Justice Department vigorously defended John Yoo, Donald Rumsfeld and other responsible functionaries in civil suits brought by Padilla seeking damages for what was done to him.

As usual, the Obama DOJ cited national security imperatives and sweeping theories of presidential power to demand that Executive Branch officials be fully shielded from judicial scrutiny (i.e., shielded from the rule of law) for their illegal acts (the Obama DOJ: “Here, where Padilla’s damage claims directly relate, inter alia, to the President’s war powers, including whether and when a person captured in this country during an armed conflict can be held in military detention under the laws of war, it would be particularly inappropriate for this Court to unnecessarily reach the merits of the constitutional claims” (emphasis added)).  With one rare exception, federal courts, as usual, meekly complied.  Thus, a full-scale shield of immunity has been constructed around the high-level government officials who put Padilla in a hermetically sealed cage with no charges and then abused and tortured him for years.

The treatment Padilla has received in the justice system is, needless to say, the polar opposite of that enjoyed by these political elites.  Literally days before it was required to justify to the U.S. Supreme Court how it could imprison an American citizen for years without charges or access to a lawyer, the Bush administration suddenly indicted Padilla — on charges unrelated to, and far less serious than, the accusation that he was A Dirty Bomber — and then successfully convinced the Supreme Court to refuse to decide the legality of Padilla’s imprisonment on the grounds of “mootness” (he’s no longer being held without charges so there’s nothing to decide).

At Padilla’s trial, the judge excluded all evidence of the abuse to which he was subjected and even admitted statements he made while in custody before he was Mirandized.  Unsurprisingly, Padilla was convicted on charges of “supporting Islamic terrorism overseas” — but not any actual Terrorist plots (“The government’s chief evidence was an application form that government prosecutors said Mr. Padilla, 36, filled out to attend an Al Qaeda training camp in Afghanistan in 2000″) — and then sentenced to 17 years in prison, all above and beyond the five years he was imprisoned with no due process.

Not content with what was done to Padilla, the Bush DOJ — and then the Obama DOJ — contested the sentence on appeal, insisting that it was too lenient; Padilla also appealed, arguing that the trial court made numerous errors in excluding his evidence while allowing the Government’s.  Yesterday, a federal appeals panel of the 11th Circuit issued a ruling, by a 2-1 vote, rejecting each and every one of Padilla’s arguments.  It then took the very unusual step of  vacating the 17-year-sentence imposed by the trial court as too lenient and, in effect, ordered the trial judge to impose a substantially harsher prison term:

Padilla’s sentence is substantively unreasonable because it does not adequately reflect his criminal history, does not adequately account for his risk of recidivism, was based partly on an impermissible comparison to sentences imposed in other terrorism cases, and was based in part on inappropriate factors . . . .

 

As the dissenting judge explained, this decision is extraordinary because trial judges — not judges sitting afterward on appeal — are the ones who hear all the evidence and thus have very wide discretion to determine the appropriate sentence.  But more so, in this case, a sentence less than the full maximum was warranted because “the trial judge correctly concluded that a sentence reduction is available to offenders who have been subjected to extraordinarily harsh conditions of pre-trial confinement.”  About that point, the dissenting judge documented:

Padilla presented substantial, detailed, and compelling evidence about the inhumane, cruel, and physically, emotionally, and mentally painful conditions in which he had already been detained for a period of almost four years. For example, he presented evidence at sentencing of being kept in extreme isolation at he military brig in South Carolina where he was subjected to cruel interrogations, prolonged physical and mental pain, extreme environmental stresses, noise and temperature variations, and deprivation of sensory stimuli and sleep.

In sentencing Padilla, the trial judge accepted the facts of his confinement that had been presented both during the trial and at sentencing, which also included evidence about the impact on one’s mental health of prolonged isolation and solitary confinement, all of which were properly taken into account in deciding how much more confinement should be imposed. None of these factual findings, nor the trial judge’s consideration of them in fashioning Padilla’s sentence, are challenged on appeal by the government or the majority.

 

Thus: American officials who are responsible for this “inhumane” and “cruel” abuse of detainees act with full impunity, as usual.  Those who are its victims are not merely denied all redress (though they are), and do not merely have the courthouse doors slammed in their faces in the name of secrecy, national security and presidential power (though they do), but they are also mercilessly punished to the fullest extent possible.

It should be said that part of what happened here is just the typical politicization of the judiciary, as the two-judge majority was comprised of a hard-core right-wing Reagan/Bush 41 appointee from Alabama (Joel Dubina), while the other was one of Bush 43’s most controversial appointees, the former Alabama Attorney General who was filibustered by the Democrats and allowed onto the bench only by virtue of the “Gang of 14” compromise (William Pryor).  Meanwhile, the dissenting judge was born in Mexico to Syrian parents and, after moving to Miami at the age of 6, became the first female judge (as well as the first Hispanic and Arab American judge) on the Florida Supreme Court (rising to Chief Justice), and was a Clinton appointee to the federal appeals court (Rosemary Barkett); Barkett, incidentally, dissented from an 11th Circuit ruling denying a habeas petition to Troy Davis, the African-American death row inmate scheduled to be executed by the State of Georgia this week despite mountains of evidence showing his innocence.  So this episode highlights one of the few genuine differences that remain between the two parties that can truly impact people’s lives: their judicial appointments.

But the overriding theme is what we have seen time and again, that which — as it turns out — is the subject of my book to be released next month: America is plagued by a two-tiered justice system in which political and financial elites enjoy virtually absolute immunity for even the most egregious of crimes, while ordinary Americans (and especially fully stigmatized ones like Padilla) are subject with few defenses to the world’s largest and one of its most merciless systems of punishment.  Thus do Jose Padilla’s lawless jailers and torturers walk free and prosper, while no punishment is sufficiently harsh for him.

* * * * *
Almost immediately after I published this, it was announced that Troy Davis’ last chance for clemency has been denied, virtually assuring that a likely innocent man will be killed by the State of Georgia tomorrow.  Obviously, everything I just wrote applies in abundance to that event.

 

UPDATE:  As usual, America’s propaganda-spreading, government-serving establishment media spouts blatant falsehoods to justify all this; from ABC News:

 

From CNN:

 

 

Padilla was never even charged with, let alone convicted of, having anything to do with a “dirty bomb.”  “Dirty Bomber” was the villain nickname given to him by Bush officials and mindlessy repeated by its media to justify the treatment to which he was subjected.  The U.S. Government gave up long ago using this accusation to demonize him (NYT on his conviction: “The dirty bomb accusations were not mentioned during Mr. Padilla’s three-month trial here“), but their lying “watchdog media” servants continue unabated.  Who would possibly object to a longer prison term for A Dirty Bomber who tried to detonate radioactive weapons in American cities?  The fact that not even the Government charged with him that is no deterrent to its media continuing to claim he did.

 

UPDATE II:  Padilla was consigned to the SuperMax prison in Florence, Colorado to serve his 17-year sentence.  The New York Bar Association last week issued a comprehensive study of America’s SuperMax system and concluded:

 

But 17 years in a torture system like that — on top of the 5 years of abuse he endured — is insufficient: “too lenient.”

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Defending John Yoo

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

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

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

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

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

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

Suicides

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

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

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

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

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

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

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

CIA Renditions and State Secrets

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Torture Photos

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

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

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

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

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

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

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

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

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

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

Obama and Congress

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

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

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

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

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

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

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

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

Upcoming Hearings on Torture?

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

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

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

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

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

Additional Revelations

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

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

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

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

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

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

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

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

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

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

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

Nuremberg Revisited: Obama Administration Files To Dismiss Case Against John YooPublished December 11, 2009

Posted by rogerhollander in Criminal Justice, Human Rights, Torture.
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(Roger’s Note: a couple of points to mention: that the Bush Administration torture policy and the Obama Administration complicity do not begin to match the scope of the Nazi holocaust does not make them any less guilty of serious crimes against human nature.  And of course, it was not Nazi German justice that brought war criminals to account at Nuremberg but rather that of the victorious Allies.  For the government of the very same nation that committed war crimes to bring its own officials to justice for such crimes would set a new precedent.  In the world of realpolitik we don’t really expect that to happen.  Why then, do we press for justice?  I leave it to the reader to answer that important question for her or himself.)

1, December 9, 2009

http://jonathanturley.org/2009/12/09/obama-administration-files-to-dismiss-case-against-john-yoo/

John Yoo is being defended in court this month by the Administration. Not the Bush Administration. The Obama Administration. As with the lawsuits over electronic surveillance and torture, the Obama administration wants the lawsuit against Yoo dismissed and is defending the right of Justice Department officials to help establish a torture program — an established war crime. I will be discussing the issue on this segment of MSNBC Countdown.

The Obama Administration has filed a brief that brushes over the war crimes aspects of Yoo’s work at the Justice Department. Instead, it insists that attorneys must be free to give advice — even if it is to establish a torture program.

In its filing before the Ninth Circuit Court of Appeals, the Justice Department insists that there is “the risk of deterring full and frank advice regarding the military’s detention and treatment of those determined to be enemies during an armed conflict.” Instead it argues that the Justice Department has other means to punish lawyers like the Office of Professional Responsibility. Of course, the Bush Administration effectively blocked such investigations and Yoo is no longer with the Justice Department. The OPR has been dismissed as ineffectual, including in an ABA Journal, as the Justice Department’s “roach motel”—“the cases go in, but nothing ever comes out.”

The Justice Department first defended Yoo as counsel and then paid for private counsel to represent him (here). His public-funded private counsel is Miguel Estrada, who was forced to withdraw his nomination by George Bush for the Court of Appeals after strong opposition from the Democrats.

Yoo is being sued by Jose Padilla, who was effectively blocked in contesting his abusive confinement and mistreatment as part of this criminal case and in a habeas action. The Bush Administration brought new charges to moot a case before the Supreme Court could rule. The Court previously sent his case back on a technicality.

It is important to note that the Administration did not have to file this brief since it had withdrawn as counsel and paid for Yoo’s private counsel. It has decided that it wants to establish the law claimed by the Bush Administration protecting Justice officials who support alleged war crimes. They are effectively doubling down by withdrawing as counsel and then reappearing as a non-party amicus.

The Obama Administration has gutted the hard-fought victories in Nuremberg where lawyers and judges were often guilty of war crimes in their legal advice and opinions. The third of the twelve trials for war crimes involved 16 German jurists and lawyers. Nine had been officials of the Reich Ministry of Justice, the others were prosecutors and judges of the Special Courts and People’s Courts of Nazi Germany. It would have been a larger group but two lawyers committed suicide before trial: Adolf Georg Thierack, former minister of justice, and Carl Westphal, a ministerial counsellor.

They included Herbert Klemm, who was sentenced to life imprisonment and served as minister of justice, director of the Ministry’s Legal Education and Training Division, and deputy director of the National Socialist Lawyer’s League.

Oswald Rothaug received life imprisonment for his role as a prosecutor and later a judge.

Wilhelm von Ammon received ten years for his work as a justice official in occupied areas.

Guenther Joel received ten years for being an adviser (like Yoo) to the Ministry of Justice and later a judge.

Curt Rothenberger was also a legal adviser and was given seven years for his writings at the Ministry of Justice and as the deputy president of the Academy of German Law

Wolfgang Mettgenberg received ten years as representative of the Criminal Legislation Administration Division of the Ministry of Justice,

Ernst Lautz (10 years) had been chief public prosecutor of the People’s Court.

Franz Schlegelberger, a former Ministry of Justice official, was convicted and sentenced to life for conspiracy and other war crimes. The court found:

‘…that Schlegelberger supported the pretension of Hitler in his assumption of power to deal with life and death in disregard of even the pretense of judicial process. By his exhortations and directives, Schlegelberger contributed to the destruction of judicial independence. It was his signature on the decree of 7 February 1942 which imposed upon the Ministry of Justice and the courts the burden of the prosecution, trial, and disposal of the victims of Hitler’s Night and Fog. For this he must be charged with primary responsibility.

‘He was guilty of instituting and supporting procedures for the wholesale persecution of Jews and Poles. Concerning Jews, his ideas were less brutal than those of his associates, but they can scarcely be called humane. When the “final solution of the Jewish question” was under discussion, the question arose as to the disposition of half-Jews. The deportation of full Jews to the East was then in full swing throughout Germany. Schlegelberger was unwilling to extend the system to half-Jews.’

It was the “ideas” that these lawyers advanced that made the war crimes possible. Other officials were tried but acquitted. All of these officials used arguments similar to those in the Obama Administration’s brief of why lawyers are not responsible for war crimes that they defend and justify. Bush selected people like Yoo to justify the war crime of torture. If they had written against it, the Administration might have abandoned the effort. The CIA director and others were already concerned about the prospect of prosecution. The Obama Administration’s brief revisits Nuremberg and sweeps away such quaint notions. Indeed, the brief for Yoo could have been used directly to support legal advisers Wolfgang Mettgenberg, Guenther Joel, and Wilhelm von Ammon.

If successful in this case, the Obama Administration will succeed in returning the world to the rules leading to the war crimes at Nuremberg. Quite a legacy for the world’s newest Nobel Peace Prize winner.

Defenders of the Administration insist that the brief does not expressly gut Nuremberg or reference war crimes. Of course, that is the point. The brief does not make any exception for liability for legal advice when it is part of a torture program or war crime. When combined with the Administration’s refusal to appoint a special prosecutor for the torture program (and the President’s promise that no CIA employees would be prosecuted), the brief closes the circle: there will be no criminal or civil liability for the war crimes committed by the Bush Administration.

The only reference to substantive criminal prosecution is in the following abstract statement:

That is not to say that the actions of a Department of Justice attorney providing advice should go unchecked. Department of Justice attorneys, if they abuse their authority, are subject to possible state and federal bar sanctions, see 28 U.S.C. § 530B, investigation by both the Office of Professional Responsibility and the Office of the Inspector General, as well as criminal investigation and prosecution, where appropriate. If Congress believes that additional avenues of recourse are necessary in cases where Department of Justice attorneys provide legal advice regarding matters relating to war powers and national security, it could enact appropriate legislation. Given the sensitivities of such claims, and the risk of deterring full and frank advice regarding matters of national security, however, this is a clear case where “special factors” strongly counsel against the recognition of a Bivens action.

“[W]here appropriate” are the key words. The Administration has already blocked criminal prosecution for torture. More importantly, this case is about Yoo’s involvement in creating that program. However, even in assisting in the establishment of a torture program, the Administration insists that there can not be civil liability (let alone criminal liability). If the Administration wanted to maintain the rule created at Nuremberg, it would have stated clearly that no privilege or law protects a lawyer who is assisting in the establishment of a war crime or torture program. Of course, the Administration has already said the opposite. Obama and Holder have stated that “just following orders” is a complete defense for CIA employees (here).

The effort to ignore the clear position of this Administration shows the dangers of a cult of personality. Just as conservatives ignored Bush’s violation of core conservative values on the budget and big government, some liberals are ignoring Obama’s violation of core liberal values on civil liberties and privacy.

For the DOJ brief, click here.

White House Wants Torture Suit against Yoo Dismissed December 8, 2009

Posted by rogerhollander in Barack Obama, Criminal Justice, Torture.
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(Roger’s Note: Obama’s protection of Bush’s torture team rivals his aggressions in Iraq — yes, still a BIG US presence there — Afghanistan and Pakistan as the biggest of the Big Lies with respect to his promise to CHANGE Bush administration policy.  There is absolutely no doubt that the torture policy of the Bush Administration constituted a gross violation of International Law, the Geneva Conventions and the Nuremberg principles.  Bush and Cheney and Yoo and Bybee and Bradbury et. al. are nothing less than war criminals.  The Obama DOJ strategy in this case makes Obama and Holder nothing less than accomplices to war crimes.  I know this sounds extreme, but to me the logic is airtight.)
Published on Tuesday, December 8, 2009 by The San Francisco Chronicleby Bob Egelko

SAN FRANCISCO – The Obama administration has asked an appeals court to dismiss a lawsuit accusing former Bush administration attorney John Yoo of authorizing the torture of a terrorism suspect, saying federal law does not allow damage claims against lawyers who advise the president on national security issues.

[John Yoo is accused of authorizing the torture of a terror suspect. (AP)]
John Yoo is accused of authorizing the torture of a terror suspect. (AP)

Such lawsuits ask courts to second-guess presidential decisions and pose “the risk of deterring full and frank advice regarding the military’s detention and treatment of those determined to be enemies during an armed conflict,” Justice Department lawyers said Thursday in arguments to the Ninth U.S. Circuit Court of Appeals in San Francisco.Other sanctions are available for government lawyers who commit misconduct, the department said. It noted that its Office of Professional Responsibility has been investigating Yoo’s advice to former President George W. Bush since 2004 and has the power to recommend professional discipline or even criminal prosecution.

The office has not made its conclusions public. However, The Chronicle and other media reported in May that the office will recommend that Yoo be referred to the bar association for possible discipline, but that he not be prosecuted.

Yoo, a UC Berkeley law professor, worked for the Justice Department from 2001 to 2003. He was the author of a 2002 memo that said rough treatment of captives amounts to torture only if it causes the same level of pain as “organ failure, impairment of bodily function or even death.” The memo also said the president may have the power to authorize torture of enemy combatants.

In the current lawsuit, Jose Padilla, now serving a 17-year sentence for conspiring to aid Islamic extremist groups, accuses Yoo of devising legal theories that justified what he claims was his illegal detention and abusive interrogation.

The Justice Department represented Yoo until June, when a federal judge in San Francisco ruled that the suit could proceed. The department then bowed out, citing unspecified conflicts, and was replaced by a government-paid private lawyer.

Yoo’s new attorney, Miguel Estrada, argued for dismissal in a filing last month, saying the case interfered with presidential war-making authority and threatened to “open the floodgates to politically motivated lawsuits” against government officials. The Justice Department’s filing Thursday endorsed the request for dismissal but offered narrower arguments, noting its continuing investigation of Yoo.

Padilla, a U.S. citizen, was arrested in Chicago in 2002 and accused of plotting with al Qaeda to detonate a radioactive “dirty bomb.” He was held for three years and eight months in a Navy brig, where, according to his suit, he was subjected to sleep deprivation, sensory deprivation and stress positions, kept for lengthy periods in darkness and blinding light, and threatened with death to himself and his family.

He was then removed from the brig, charged with and convicted of taking part in an unrelated conspiracy to provide money and supplies to extremist groups.

Padilla’s suit says Yoo approved his detention in the brig and provided the legal cover for his allegedly abusive treatment. U.S. District Judge Jeffrey White refused to dismiss the case in June.

The Justice Department’s filing Thursday said Padilla is asking the courts to determine the legality of Yoo’s advice, Bush’s decision to detain Padilla, the conditions of his confinement and the methods of his interrogation – all “matters of war and national security” that are beyond judicial authority.

© 2009 The San Francisco Chronicle

Judge: Ex-Bush Lawyer Can be Sued Over Torture June 13, 2009

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abu ghraib matthew langley
 
Published on Saturday, June 13, 2009 by The San Francisco Chronicle

by Bob Egelko

A prisoner who says he was tortured while being held for nearly four years as a suspected terrorist can sue former Bush administration lawyer John Yoo for coming up with the legal theories that justified his alleged treatment, a federal judge in San Francisco ruled Friday.

U.S. District Judge Jeffrey White’s decision marks the first time a government lawyer has been held potentially responsible for the abuse of detainees.

“Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct,” White said in refusing to dismiss Jose Padilla’s lawsuit against Yoo.

If Padilla, now serving a 17-year prison sentence on terrorism charges, can prove his allegations, he can show that Yoo “set in motion a series of events that resulted in the deprivation of Padilla’s constitutional rights,” White said.

White, an appointee of former President George W. Bush, noted that Padilla’s lawsuit accuses Yoo of helping to design administration policy on detention and torture, and then crafting legal opinions to justify it – stepping outside the usual role of a lawyer.

Yoo, a UC Berkeley law professor, was an attorney in the Justice Department’s Office of Legal Counsel from 2001 to 2003 and wrote a series of memos on interrogation, detention and presidential powers.

The best-known memo, written to then-White House Counsel Alberto Gonzales in 2002, said rough treatment of captives amounted to torture only if it caused the same level of pain as “organ failure, impairment of bodily function or even death.” The memo also said the president may have the constitutional power to authorize torture of enemy combatants.

‘Any means necessary’

A 2001 Yoo memo, made public by the Obama administration, said U.S. military forces could use “any means necessary” to seize and hold terror suspects in the United States.

Yoo could not be reached at his Berkeley office Friday. A spokesman for the Justice Department, which is representing him and has argued for dismissal of the suit, was unavailable for comment.

Padilla’s lawyers issued a statement saying they are “pleased that our client will get his day in court and the right to challenge the unconstitutional conduct to which he was subjected.”

Unique ruling

John Eastman, law school dean at Chapman University in Orange County, where Yoo taught for the past year, said the ruling is unique – the first to hold any administration official potentially liable for alleged mistreatment of terrorist suspects.

Eastman predicted that the Justice Department will file an immediate appeal, going to the Supreme Court if necessary. Padilla, a U.S. citizen, was arrested in Chicago in 2002 and accused by the Bush administration of plotting with al Qaeda to detonate a radioactive “dirty bomb.”

Declared an enemy combatant, Padilla was held in a Navy brig for three years and eight months and was denied all contact with the outside world for the first half of that period, his suit said. He was then taken out of the brig and charged with taking part in an unrelated conspiracy to provide money and supplies to Islamic extremist groups. He was convicted and has appealed.

His suit against Yoo covers his time in the brig. He says he was detained illegally, held for lengthy periods in darkness and blinding light, subjected to temperature extremes and sleep deprivation, confined in painful stress positions, and threatened with death to himself, harm to his family and transfer to a nation where he would be tortured.

Claims of mistreatment

The suit said Yoo – who has acknowledged being a member of an administration planning group known as the “war council” – personally reviewed and approved Padilla’s detention in the brig and provided the legal cover for his treatment.

At a hearing in March, Justice Department lawyer Mary Mason told White that courts had no power to scrutinize high-level government decision-making, especially in wartime.

But White said Friday that Padilla had a right to sue “the alleged architect of the government policy” on enemy combatants. He said an examination of Yoo’s publicly disclosed writings would not damage national security, and an inquiry into “allegations of unconstitutional treatment of an American citizen on American soil” would not affect foreign relations.

© 2009 The San Francisco Chronicle

Torture Smoking Gun? May 14, 2009

Posted by rogerhollander in Criminal Justice, Torture, Uncategorized.
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by Scott Horton

Sen. Sheldon Whitehouse (D-RI) opened a hearing on the Bush administration’s torture policy quoting Tallyrand: “The greatest danger in times of crisis comes from the zeal of those who are inexperienced.” Whitehouse promised to separate the “truth” from its “bodyguard of lies.” In doing so, the former federal prosecutor brought the shadowy world of intelligence into Room 226 of the Dirksen Senate Office Building. Former star FBI interrogator Ali Soufan, widely described as the bureau’s best and most effective interrogator working in the Arabic language, testified off-camera and behind a wooden partition. Concerned for his and his family’s security, he made the unusual demand a part of his agreement to appear and testify.

The effort to destroy the Zelikow memo is not just evidence of standard record-keeping practice; it may well spring from recognition that the memo might be used as evidence that the Bush administration was engaged in criminality.

The hearing produced two significant developments as well as a great deal of political rhetoric. Soufan’s testimony focused on the interrogation of Abu Zubaydah. Throughout the history of the torture debate, the Bush administration has cited this as a triumph of its techniques. Sen. Whitehouse read Bush’s September 6, 2006, White House statement making one of these claims. Soufan, who was personally present through the process, called the Bush claims a “half-truth,” accurate as to the circumstances of Abu Zubaydah’s capture and detention, but not as to the claimed successes using highly coercive techniques. One of the Justice Department’s torture memos (from May 2005) contained a similar claim that actionable intelligence was obtained “once enhanced techniques were employed.” Soufan termed this a lie. He also noted that successful interrogations of Khalid Sheikh Mohammed and Jose Padilla, which gained useful intelligence, occurred before the introduction of the Bush program and therefore couldn’t be claimed as success stories for it. In his remarks, Soufan sharply repudiated the harsh techniques he observed. “These techniques… are ineffective, slow, and unreliable and, as a result, harmful to our efforts to defeat al Qaeda,” he said. He also downplayed claims that there was a dispute between the FBI and CIA about the use of the Bush techniques. CIA interrogators agreed with his assessment, he noted.

Philip Zelikow, a lawyer and history professor who had served as a counselor to Condoleezza Rice at the State Department, testified that the Justice Department had thwarted legislation sponsored by Sen. John McCain (R-AZ) that prohibited cruel, inhuman, and degrading techniques on detainees. He noted that McCain and other sponsors understood the legislation as a prohibition on waterboarding and other harsh techniques, but through legal sleight of hand, Steven Bradbury, then head of the Justice Department’s Office of Legal Counsel, had nevertheless found that the legislation was ineffective to make the expected changes. Zelikow recorded his opposition to this view in his own memo, which he disseminated widely within the Bush administration. It was made clear to him that his memo was not appreciated, and, moreover, an effort was made to collect and destroy copies of the memo. One copy has now been identified in the records of the State Department, he noted. Its declassification and release are anticipated shortly.

The story surrounding the efforts to corral and destroy the Zelikow memo is more than a curious vignette. Lawyers studying the issue of criminal liability of the memo writers are focused on evidence of mens rea-a state of mind that reflects recognition of criminal wrongdoing. The effort to destroy the memo is not just evidence of standard record-keeping practice; it may well spring from recognition that the memo might be used as evidence that the Bush administration was engaged in criminality.

Republicans called two legal experts to offer opinions but no fact witnesses. This raised the question of whether they have a CIA interrogator who is ready or willing to make a case to support Cheney’s claims about the efficacy of torture.

In opening remarks, Sen. Russ Feingold (D-WI) leveled a direct attack on former Vice President Dick Cheney, saying he was “misleading the American people” with claims that Bush-era techniques had been effective. “Nothing I have seen-including the two documents to which former Vice President Cheney has repeatedly referred-indicates that the torture techniques… were necessary,” Feingold said. Sen. Lindsey Graham (R-SC) entered the debate insisting the hearing was “not really fair to” the Bush administration. “I don’t know whether this is actually pursuing the nobility of the law or a political stunt,” he said. Graham offered a grilling of the former lead FBI interrogator, insisting that his view was “not the whole picture.” However, Graham stumbled during the hearing, citing a debunked and now-retracted statement by former CIA agent John Kiriakou about the interrogation of Abu Zubaydah and was corrected by the witness for his mistake.

Graham was the only Republican to attend the hearing as a questioner, and the Republican side offered no fact witnesses of their own. Soufan’s and Zelikow’s presentations weren’t refuted or weakened. For now the Republican pushback on the torture issue consists of attacks on the credibility of House Speaker Nancy Pelosi-what she knew and when she was told about the Bush administration techniques. Yet that issue has not caught fire and remains distant from the heart of the controversy. The Senate hearing set the stage for the release of the Justice Department’s ethics report conducted while Bush was still in office. Zelikow called for a special investigation during his testimony and disclosed that evening on MSNBC’s Rachel Maddow Show that the special prosecutor appointed under Bush to probe the destruction of CIA videotapes of torture, John Durham, has expanded to cover the CIA’s failure to provide information to the 9/11 Commission about torture. Sen. Whitehouse has declared that he would chair new hearings featuring the Bush administration lawyers after the release of the Justice Department ethics report. Then the focus will fall on the possible impeachment of former OLC chief Jay Bybee, now a federal appeals judge, and bar discipline of other lawyers. The issue continues to build regardless of what the Obama White House wishes.

Scott Horton, a senior fellow at The Nation Institute, lectures at Columbia Law School. 

Torture: An Author and a Resister May 1, 2009

Posted by rogerhollander in Criminal Justice, Torture.
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funeral-alyssa-petersonThe funeral for Army Spc. Alyssa Peterson, Glagstaff, Arizona. (Photo: Jill Torrance / Getty Images)

Ann Wright

www.truthout.org, May 1, 2009

As a Bush administration political appointee Assistant Attorney General in the Office of Legal Counsel of the Department of Justice, Jay Bybee, a Mormon, wrote one of four torture memos released last month. Bybee’s August 1, 2002, 20-page memorandum laid out in excruciating detail the interrogation techniques he was authorizing the Central Intelligence Agency (CIA) to use on al-Qaeda operative Abu Zubaydah.

    Bybee authorized ten “enhanced interrogation techniques” to encourage Abu Zubaydah to disclose “crucial information regarding terrorist networks in the United States or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against US interests overseas.” The torture techniques authorized were (1) attention grasp, (2) walling, (3) facial hold, (4) facial slap, (5) cramped confinement, (6) wall standing, (7) stress position, (8) sleep deprivation, (9) insects placed in a confinement box and (10) waterboarding.

    The current Attorney General of the United States Eric Holder has stated that waterboarding is torture, while the previous Attorney General Judge Mukasey refused to comment on whether waterboarding is torture.

    From recently released CIA documents, we know the CIA waterboarded Abu Zubaydah 83 times and Khalid Sheikh Mohammed 183 times.

    But, we know that from March through June, 2002, according to FBI interrogator Ali Soufan in an op-ed to The New York Times on April 23, 2009, FBI interrogators had already gotten “actionable intelligence” from Zubaydah using traditional, nontorturing interrogation techniques, including that Khalid Sheikh Mohammed was the mastermind of 9/11 and that Jose Padilla was planning to be a “dirty bomber.”

    Ninety of the 92 interrogation videotapes the CIA admits it destroyed were interrogations of Abu Zubaydah. Zubaydah’s British attorney Brent Mickum, in the most detailed account the public has had of Zubaydah’s life, states that after all the waterboarding and other torture methods used, the CIA finally recognized Zubaydah was not the senior al-Qaeda leader they had portrayed him to be. According to Mickum, the military commissions at Guantanamo are now “airbrushing” his name from the charge sheets of other Guantanamo prisoners. Mickum reveals Zubaydah was severely wounded in Afghanistan in 1992 while fighting communist insurgents after the withdrawal of Soviet forces. He has two pieces of shrapnel in his head, which have affected his memory to the extent that “he cannot remember his mother’s name or face.” Mickum states that Zubaydah was shot and severely wounded when he was picked up in Pakistan. His life was saved by a John Hopkins surgeon flown to the region. After being saved from death, he was almost tortured to death by CIA operatives. Mickum says that Zubaydah is a stateless Palestinian with no country to argue on his behalf and a United States government now embarrassed at being caught in its own illegal conduct.

    We know that combinations of the other nine techniques authorized by Jay Bybee can be classified as torture, as the Convening Authority of the Military Commissions at Guantanamo Susan Crawford declared when she dismissed the charges against Guantanamo prisoner Mohammed al-Qahtani, in January, 2009, in the last days of the Bush administration.

    Crawford said that for 160 days al-Qahtani’s only contact was with the interrogators and that 48 of 54 consecutive days he was subjected to 18- to 20-hour interrogations. He was strip searched and had to stand naked in front of a female agent. Al-Qahtani was forced to wear a woman’s bra and had a thong placed on his head during the course of his interrogation and was told that his mother and sister were whores. With a leash tied to his chains, he was led around the room “and forced to perform a series of dog tricks.” He was threatened with a military working dog named Zeus. The interrogations were so severe that twice al-Qahtani had to be hospitalized at Guantanamo with bradycardia, a condition in which the heart rate falls below 60 beats a minute and which, in extreme cases, can lead to heart failure and death. At one point, al-Qahtani’s heart rate dropped to 35 beats per minute, the interrogation records showed.

    The torture techniques Jay Bybee authorized in 2002 migrated to Iraq in 2003. Maj. Gen. Geoffrey Miller traveled to Iraq from Guantanamo to demonstrate to soldiers in Iraq the techniques the military and CIA were using in Guantanamo.

    In September 2003, another Mormon, a woman soldier, US Army Spc. Alyssa Peterson, said she refused to use the interrogation techniques that Bybee had authorized on Iraqi prisoners. An Arabic linguist with the US Army’s 101st Airborne Division at Tal Afar base, Iraq, 27-year-old Peterson, refused to take part in interrogations in the “cage” where Iraqis were stripped naked in front of female soldiers, mocked and their manhood degraded and burned with cigarettes, among other things. Three days later, on September 15, 2003, Peterson was found dead of a gunshot wound at Tal Afar base. The Army has classified her death as suicide.

    Jay Bybee, in thanks for his being the loyal soldier to the Bush administration’s policies of torture, was nominated and confirmed by the US Senate as a judge on the Ninth Circuit Court of Appeals, where he sits to this day in his lifetime appointment. Jay Bybee, an author of torture, reportedly has a placard in his home for his children that reads, “We don’t hurt each other.”

    Alyssa Peterson, for saying no to torture, is dead, perhaps by her own hand.

    To help Army Spc. Alyssa Peterson rest in peace, I say we should demand accountability from our officials and IMPEACH the torture judge, Jay Bybee.

»

Ann Wright is a 29-year US Army Reserves veteran who retired as a colonel. She was a US diplomat, who served in Nicaragua, Grenada, Somali, Uzbekistan, Kyrgyzstan, Sierra Leone, Micronesia, Mongolia and Afghanistan, where she helped reopen the US Embassy in December 2001. She has traveled to Gaza twice in the past three months and will make her third trip in May 2009. She is the co-author of “Dissent: Voices of Conscience.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

AMY GOODMAN: And why was SERE big at Fairchild?

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

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

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

[break]

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

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

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

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

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

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

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

AMY GOODMAN: I mean Mitchell.

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

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

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

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

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

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

AMY GOODMAN: Karen Dorn Steele?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Do the Secret Bush Memos Amount to Treason? Top Constitutional Scholar Says Yes March 26, 2009

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Legal expert Michael Ratner calls the legal arguments made in the infamous Yoo memos, “Fuhrer’s law.”

By Naomi Wolf, AlterNet. Posted March 25, 2009.

In early March, more shocking details emerged about George W. Bush legal counsel John Yoo’s memos outlining the destruction of the republic.

The memos lay the legal groundwork for the president to send the military to wage war against U.S. citizens; take them from their homes to Navy brigs without trial and keep them forever; close down the First Amendment; and invade whatever country he chooses without regard to any treaty or objection by Congress.

It was as if Milton’s Satan had a law degree and was establishing within the borders of the United States the architecture of hell.

I thought this was — and is — certainly one of the biggest stories of our lifetime, making the petty burglary of Watergate — which scandalized the nation — seem like playground antics. It is newsworthy too with the groundswell of support for prosecutions of Bush/Cheney crimes and recent actions such as Canadian attorneys mobilizing to arrest Bush if he visits their country.

The memos are a confession. The memos could not be clearer: This was the legal groundwork of an attempted coup. I expected massive front page headlines from the revelation that these memos exited. Almost nothing. I was shocked.

As a non-lawyer, was I completely off base in my reading of what this meant, I wondered? Was I hallucinating?

Astonished, I sought a reality check — and a formal legal read — from one of the nation’s top constitutional scholars (and most steadfast patriots), Michael Ratner of the Center for Constitutional Rights, which has been at the forefront of defending the detainees and our own liberties.

Here is our conversation:

Naomi Wolf: Michael, can you explain to a layperson what the Yoo memos actually mean?’

Michael Ratner: What they mean is that your book looks moderate in respect to those issues now. This — what is in the memos — is law by fiat.

I call it “Fuhrer’s law.” What those memos lay out means the end of the system of checks and balances in this country. It means the end of the system in which the courts, legislature and executive each had a function and they could check each other.

What the memos set out is a system in which the president’s word is law, and Yoo is very clear about that: the president’s word is not only law according to these memos, but no law or constitutional right or treaty can restrict the president’s authority.

What Yoo says is that the president’s authority as commander in chief in the so-called war on terror is not bound by any law passed by Congress, any treaty, or the protections of free speech, due process and the right to be free from unreasonable searches and seizures. The First, Fourth and Fifth amendments — gone.

What this actually means is that the president can order the military to operate in the U.S. and to operate without constitutional restrictions. They — the military —  can pick you or me up in the U.S. for any reason and without any legal process. They would not have any restrictions on entering your house to search it, or to seize you. They can put you into a brig without any due process or going to court. (That’s the Fourth and Fifth amendments.)

The military can disregard the Posse Comitatus law, which restricts the military from acting as police in the the United States. And the president can, in the name of wartime restrictions, limit free speech. There it is in black and white: we are looking at one-person rule without any checks and balances — a lawless state. Law by fiat.

Who has suspended the law this way in the past? It is like a Caesar’s law in Rome; a Mussolini’s law in Italy; a Fuhrer’s law in Germany; a Stalin’s law in the Soviet Union. It is right down the line. It is enforcing the will of the dictator through the military.

NW: The mainstream media have virtually ignored these revelations, though it seems to me this is the biggest news since Pearl Harbor.

MR: I think that’s right. We had a glimmering of the blueprint for some of this — when they picked up Jose Padilla, the military went to a prison and snatched an American citizen as if they had a perfect right to do so.

Now we can see that these memos laid the legal groundwork for such actions. We knew the military could do this to an individual. We did not know the plan was to eliminate First Amendment constitutional rights for the entire population.

NW: If Bush only wanted these powers in order to prosecute a war on terror, why does he need to suspend the First Amendment? Isn’t that the smoking gun of a larger intention toward the general population?

MR: Part of this plan was actually implemented: for instance, they tried to keep people like Padilla from getting to a magistrate. They engaged in the wiretapping, because according to these memos there was no Fourth Amendment.

They had to be planning some kind of a takeover of the United States to be saying they could simply abolish the First Amendment if the president believed it was necessary in the name of national security. It lays the groundwork for what could have been a massive military takeover of the United States.

Here they crept right up and actually implemented part of the plan, with Padilla, with the warrantless wiretapping. Yet they are saying in the White House and in Congress that it is looking backward to investigate the authors of these memos and those who instructed Yoo and others to write them.

But investigation and prosecutions are really looking forward — to say we need the deterrence of prosecution so this does not happen again.

NW: What about the deployment of three brigades in the U.S.? How should we read that?’

MR: With terrorism as less of a concern to many, but now with the economy in tatters there is a lot more militant activism in U.S. — the New School and NYU student takeovers, protests around the country and strikes are just the beginning. I think governments are now concerned over people’s activism, and people’s anger at their economic situation. I don’t think those brigades can be detached from the idea that there might well be a huge amount of direct-action protest in the U.S.

There could have also been a closer election that could have been stolen easily and then a huge protest. Those troops would have been used to enforce the will of the cabal stealing the election.

NW: As a layperson, I don’t fully understand what powers the memos actually manifest. Are they theoretical or not just theoretical? What power did the memos actually give Bush?

MR: They were probably, in fact almost for sure, written in cahoots with the administration — [Karl] Rove, [Dick] Cheney — to give them legal backing for what they planned or wanted to carry out.

What I assume happened here is people like Cheney or his aides go to the Office of Legal Counsel and say, “We are going to need legal backing, to give a face of legality to what we are doing and what we are planning.” When the president then signs a piece of paper that says, “OK, military, go get Jose Padilla,” these memos give that order a veneer of legality.

If you are familiar with the history of dictators, coups and fascism (as I know you are), they (the planners) prefer a veneer of legality. Hitler killed 6 million Jews with a veneer of legality — getting his dictatorial powers through the Reichstag and the courts.

These memos gave the Bush administration’s [lawless] practices the veneer of legality.

NW: So are you saying that these memos actually created a police state that we did not know about?

MR: If you look at police state as various strands of lawlessness, we knew about some of this lawlessness even before this latest set of memos.

But the memos revealed how massive the takeover of our democracy was to be — that this wasn’t just going to be a few individuals here or there who suffered the arrows of a police state.

These memos lay the groundwork for a massive military takeover of the United States in cahoots with the president. And if that’s not a coup d’etat then, nothing is.

NW: Can I ask something? I keep thinking about the notion of treason. In America now, people tend to read the definition of treason in the Constitution as if they are thinking of a Tokyo Rose or an American citizen acting as an agent for an enemy state — very much a World War II experience of the traitor to one’s country.

But I’ve been reading a lot of 16th and 17th century history, and it seems to me that the founders were thinking more along the lines of English treason of that era — small groups of Englishmen, usually nobility, who formed cabals and conspired with one another to buy or recruit militias to overthrow the crown or Parliament.

The notion that a group might conspire in secret to overthrow the government is not a wild, marginal concept, it is a substantial part of European, and especially British, Renaissance and Reformation-era history and would have been very much alive in the minds of the Enlightenment-era founders. (I just visited the Tower of London where this was so frequent a charge against groups of English subjects that there is a designated Traitor’s Gate.)

So clearly you don’t have to act on behalf of another state to commit treason. The Constitution defines it as levying war against the United States or giving aid and comfort to its enemies. It says nothing about the enemy having to be another state.

When the Constitution was drafted, the phrase “United States” barely referred to a singular country; it referred to a new federation of many united states. They imagined militias rising up against various states; it was not necessarily nation against nation.

Surely, when we have evidence Bush prepared the way to allow the military to imprison or shoot civilians in the various states and created law to put his own troops over the authority of the governors and the national guard of the various states, and when the military were sent to terrorize protesters in St. Paul, [Minn.], Bush was levying war in this sense against the united states?

Hasn’t Bush actually levied war against Minnesota? And if our leaders and military are sworn to protect and defend the Constitution, and there is clear evidence now that Bush and his cabal intended to do away with it, are they not our enemies and giving aid and comfort to our enemies? Again, “enemy” does not seem to me to be defined in the Constitution as another sovereign state.

MR: You are right. Treason need not involve another state. Aaron Burr was tried for treason. I do think that a plan to control the military, use it in the United States contrary to law and the Constitution and employ it to levy a war or takeover that eliminates the democratic institutions of the country constitutes treason, even if done under the president of the United States.

The authority given by these memos that could be used to raid every congressional office, raid and search every home, detain tens of thousands, would certainly fit a definition of treason.

This would be the president making war against the institutions of the United States.

Naomi Wolf is the author of Give Me Liberty (Simon and Schuster, 2008), the sequel to the New York Times best-seller The End of America: A Letter of Warning to a Young Patriot (Chelsea Green, 2007).