The Darkest Of The Dark Sides

Visit msnbc.com for Breaking News, World News, and News about the Economy

Keith Olbermann talks with Jane Mayer in this clip about the release of the CIA IG report and the preliminary investigation into some of the worst practices of the torture regime. She talks about how the IG report reads like "a crime scene," foregrounding the idea that the architects of the policy at CIA were warned in this 2004 report and repeatedly thereafter that their agency would be in deep legal trouble for continuing these actions, and yet they kept justifying them and/or actually engaging in them for years afterward. Nobody took the warnings seriously, knowing both the makeup of the Justice Department and the Presidency at that time, and perhaps banking on how Washington would view these efforts, as part of the past and best kept their, given the Establishment culpability for torture.

Here's just a few of the facts of what CIA interrogators did in our name, just the ones that come from this IG report, as masterfully summarized by Glenn Greenwald:

• Threats of execution, using semi-automatic handguns and power drills
• Threats to kill detainee and his children
• Threats to rape detainee's wife and children in front of him
• Restricting the detainee's carotid artery
• Hitting detainee with the butt end of a rifle
• Blowing smoke in detainee's face for five minutes
• Multiple instances of waterboarding detainees, of the type we prosecuted Japanese war criminals for using:
• Hanging detainee by their arms until interrogators thought their shoulders might be dislocated
• stepping on detainee's ankle shackles to cause severe bruising and pain
• choking detainee until they pass out
• dousing detainee with water on cold concrete floors in cold temperatures to induce hypothermia
• killing detainees through torture techniques, whether accidental or not
• putting detainee in a diaper for days at a time to live in their own filth

On that last point, Digby notes that this could have been used in tandem with another technique we know about, the use of forced enemas, a particularly degrading technique, part and parcel of the humiliations heaped on prisoners that were psycho-sexual in nature. A lot of these stem from misreadings of books like Raphael Patai's "The Arab Mind," which presumed a host of dubious generalizations about Muslims and their predispositions, all of it willingly lapped up by neoconservatives willing to believe that their opponents were somehow subhuman. As if anyone would react favorably to being made to live in their own shit. These stereotypical projections that manifested themselves in essentially an allowance for torturing brown-skinned people have dangerous and deadly repercussions.

But whatever Patai's intentions, the kind of thinking he engaged in does have real-world consequences, ones that reverberate far beyond the walls of Abu Ghraib. In their recent book "Occidentalism" (Penguin), Ian Buruma and Avishai Margalit argue that a reciprocal negative stereotype of the West has arisen in the Arab world, one that holds that the West is licentious, amoral, overly sexualized, aggressive, and engaged in a crusade against Islam. Buruma and Margalit trace this stereotype back to thinkers of the Western counter-Enlightenment, but events like the abuse at Abu Ghraib, in which soldiers reportedly not only raped prisoners but forced them to eat pork and drink alcohol, suggest that an Occidentalist worldview has sources much closer at hand, in the actual experience of domination.

In the wake of the Iraq war, mutually reinforcing Occidentalist and Orientalist stereotypes have contributed immeasurably to the fear and apprehension that divides Islam and the West. It should be observed that the human rights violations that took place in Abu Ghraib would have been no less horrific had they taken place in Madison, Wis. But the explosiveness of the situation makes them far more dangerous as we enter an era where each side defines the other only by its worst excesses. Rather than plumbing some mythical "Arab mind," we should affirm the shared humanity that transcends our differences and binds us all together.

Because of the reliance on stereotypes, the lack of factual information and the pressure from the top to come up with any information in the early post-9/11 period, this all led to "unauthorized, improvised, inhumane and undocumented" being used repeatedly and in violation of multiple federal laws and international conventions. None of them made Americans safer, in fact many of them probably made the country less safe, and all of them were decidedly illegal, debasing and severely damaging to our moral capability. We have made a mockery of the presumption that in America, the law is king. Now a generation of torture-loving conservatives believe that the ends justify any means, up to and including murder.

They don't. And as soon as you begin to have an argument over torture's effectiveness, the argument is immediately lost. But it's worth noting that Dick Cheney, the Great Dissembler, claimed for months that documents would show the how torture worked in saving lives, and yet, while those documents were released along with the IG report, as Mayer says none of the information contained in them prove Cheney's hypothesis.

OLBERMANN: What about Mr. Cheney's assessment that there would be documents that prove that torture worked where traditional and legal interrogation did not or would not. Is there anything in those documents that were released today that supports that contention?

MAYER: Well, the documents that I've seen, and maybe I'm missing something, but so far, I am amazed at how little support there is for the things that Vice President Cheney has been saying. There is nothing but a mass of claims that they got information from this individual and that individual, many from KSM, who apparently has been the greatest fount of information for them, but there's absolutely nothing saying that they had to beat them to get this information. In fact, as anybody knows who knows anything about Khalid Sheikh Mohammed, he was dying to tell the world, when he was interviewed by Al Jazeera before he was in US custody, about everything he knew and everything he did. He was proud of his role as the mastermind of 9/11. He loves to talk about it. So there's no evidence that I see in this that these things were necessary. I spoke to someone at the CIA who was an advisor to them who conceded to me that "We could have gotten the same information from tea and crumpets."

OLBERMANN: Or buying a copy of the Al Jazeera interview.

The Cheney documents were deliberately created at the time to rebut both this CIA Inspector General report recommending prosecutions, and the heat put on by Congress about allegations of torture. They were actually conceived to deceive people into believing that torture works, an irrelevant point at best. And yet these same memos do not support Cheney's claims. They say that certain individuals gave up information, but only after questioned through traditional means, which was happening contemporaneously to the torture. It is impossible to say definitively, therefore, which information came as a result of what techniques.

And yet, not only has traditional media largely ignored the fact that the documents do not support Cheney's claims (which were given tons of media attention previously), but an extremely carefully worded statement by Cheney, stating that "The documents released Monday clearly demonstrate that the individuals subjected to Enhanced Interrogation Techniques provided the bulk of intelligence we gained about al Qaeda" - which says nothing of WHAT techniques caused this intelligence to be gleaned - has been taken completely at face value by reporters, in particular CNN, which ran Cheney's comments as facts:

Cheney says documents show interrogations prevented attacks

Former Vice President Dick Cheney says documents released Monday support his view that harsh interrogation techniques used on terrorism suspects prevented attacks and yielded crucial information about al Qaeda.

A simple read of the documents shows this to be completely untrue. Jane Mayer, as expert a journalist on this subject as anyone, calls them unsupportable. But too many reporters just write down these things and run with them, the facts be damned. It's part of a disturbing pattern, as Digby says:

If you have followed the torture revelations over the years, you can't help but be just a tad disillusioned by the fact that the mainstream media acts over and over again as if they were born yesterday and each time these stories are validated it's as if it's the first time they've heard it.

We already know they tortured. We know that DOJ bureaucrats illegally approved the torture on Dick Cheney's request and we know that a bunch of unprofessional, untrained interrogators complied and then went beyond even what was approved. We know that innocent people were tortured and we know that prisoners were killed. We've known all this for a long time. The question is not what happened, it's whether anyone will be held accountable for it.

On that point, here's Jane Mayer talking about the Durham investigation, actually hopeful about what it may find:

MAYER: Well, my guess is that if they actually open some kind of serious investigation, and Durham is said to be a very serious prosecutor, that even if they start at the very bottom, it's going to keep leading up and up through the chain of command. Because, if nothing else, if they actually bring charges against anybody at the CIA who was at the bottom of the food chain, the first thing that person's going to do is say "I was authorized, let me tell you what my orders were." So they've begun a process that could lead to the top.

OLBERMANN: Well, if it works along the Archibald Cox lines, as I analogized last week, where they've supposedly circumscribed it, but people want to get out from the scapegoat for the whole operation, then I think your assessment is correct.

We know that none of the torture here happened by happenstance, but through a directed policy emanating from the top. Instead of prosecuting "bad apples" who were young MPs on the night shift in Baghdad, we're talking about mid-level career CIA. They aren't dupes, and they know how to shift the attention up the chain of command. I don't think these interrogators will live with being the scapegoats. It may take some time, but we really could see some legitimate accountability here. And I hope so - because otherwise this will remain a black mark that can never wash out.

Balloons All Over

The Washington Post picks up on Newsweek's story about Eric Holder's musing over appointing a special prosecutor and offers some caveats:

Any criminal inquiry could face challenges, including potent legal defenses by CIA employees who could argue that attorneys in the Bush Justice Department authorized a wide range of harsh conduct. But the sources said an inquiry would apply only to activities by interrogators, working in bad faith, that fell outside the "four corners" of the legal memos. Some incidents that might go beyond interrogation techniques that were permitted involve detainees in Iraq and Afghanistan, and are described in the secret 2004 CIA inspector general report, set for release Aug. 31.

Among the unauthorized techniques allegedly used, as described in the report and Red Cross accounts, were shackling, punching and beating of suspects, as well as the waterboarding of at least two detainees using more liquid and for longer periods than the Justice Department had approved. That conduct could violate ordinary criminal laws, as well as the U.N. Convention Against Torture, which the United States signed more than a decade ago [...]

Other challenges an inquiry into alleged torture might face could include the difficulty of gathering evidence of improper conduct in war zones and questions about the reliability of witnesses who may have been held by the U.S. government for years, legal analysts said yesterday. The actions of higher-level Bush policymakers are not under consideration for possible investigation.

I would prefer to see those who authorized and directed the torture investigated than the functionaries carrying it out, and using the Yoo/Bybee memos as settled law raises all sorts of truly despicable outcomes. It teaches future Presidents that, as long as operatives stay within the lines of whatever extreme actions sought by Administration bigwigs and dutifully scribbled by lawyers, they can get away with it, regardless of whether the legal guidelines were authored in bad faith and the underlying actions broke the law.

However, let me split with some saying that this mirrors the Abu Ghraib investigation, which led to the "few bad apples" getting prosecuted but nobody else. Because I'm not convinced that "rogue" CIA officers exist, and a legitimate investigation by a special prosecutor would find tacit if not explicit directions to those officers to use unauthorized techniques. We already know that Alberto Gonzales was dictating techniques to use even before the Office of Legal Counsel memos were drafted. You can circumscribe an investigation before handing it off to the special prosecutor all you want, but if that prosecutor is diligent and honest, he or she will follow the evidence. And I don't think the evidence will show anything resembling a rogue element in the CIA. Just as it didn't in the Abu Ghraib case, by the way, but of course that investigation was handled inside the same Administration that authorized the techniques. I think this is somewhat different.

That said, I do agree with Greenwald on this point:

All other things being equal, individual CIA agents who brutalized detainees, using unapproved methods, ought to be prosecuted. If nothing else, our treaty obligations compel that. Even for a country that has rejected the idea of accountability as resoundingly as we have, it seems inconceivable to decide to prosecute nobody in the face of scores of detainee deaths. How can we know that we tortured to death numerous detainees and do nothing? If you were Eric Holder, would you want that decision attached to your name by history?

But just as was true for the Abu Ghraib abuses, many of the worst instances of detainee abuse cannot be extricated from -- but rather are directly attributable to -- the torture policies authorized at the highest levels of the government. To target low-level interrogators while shielding high-level policy makers would further bolster America's two-tiered system of justice, in which ordinary Americans are subjected to merciless punishment while the most powerful elites are vested with virtual immunity from the consequences of their lawbreaking.

Importantly, no decision has actually been made on this yet, and other reports show that an investigation would not be so carefully circumscribed.

The exact parameters of a special prosecutor’s potential authority remain unclear, as does the name of who might be chosen. Reports suggesting illegal conduct during the Bush years have proliferated and now include well-substantiated allegations of warrantless surveillance, which the Holder Justice Department has struggled to uphold as lawful in the face of increasingly incredulous courts. On Friday, a joint report by the inspectors general of the Defense Department, Justice Department, CIA, National Security Agency and intelligence community revealed that the Bush-era warrantless-surveillance programs were vastly greater in scope than previously disclosed. Director Leon Panetta is reported to have disclosed to Congress that his predecessors had operated a highly secretive program which was not briefed to Congress, in apparent violation of the National Security Act of 1947. The New York Times has also just reported that Congress was not briefed because of orders issued directly by Vice President Dick Cheney. Each of these matters could provide the basis for a special criminal investigation.

For now, however, it appears that Holder’s current decision focuses only on the development of new interrogation techniques and their use at the direction of the Bush administration. Under these terms, the prosecutor would be tasked to look at the role played by Justice Department figures and other government lawyers at various stages of the process; but criminal investigations usually target specific crimes, not individuals, and this would be no exception. The regulations require a "specific factual statement” concerning the matter to be investigated, but drafting such a statement may be difficult. One major issue would be whether the ultimate policy-making echelons in the White House would be affected. One source told me that he would be surprised if Holder “set blinders” on the special prosecutor. Still, the scope of the investigation would clearly be limited to the authorization and use of Bush-era “enhanced interrogation techniques” such as waterboarding, longtime standing, stress positions, and prolonged sleep deprivation. Moreover, President Obama’s assurance to CIA officials who relied on the opinions of government lawyers in implementing these programs, an assurance that Holder himself repeated, would have to be worked in. That suggests that the focus would likely be on the lawyers and policymakers who authorized use of the new techniques.

If the Newsweek article is to be believed, Holder has wanted to kind of spark a grassroots movement to sound the call for investigations so loud that the political class fighting against his desire to appoint a prosecutor could not be ignored. I'm all for that, but Holder must know that he should not set parameters and allow the special proseuctor he appoints to follow the evidence.

Truth

What's notable about Ricardo Sanchez calling for a Truth Commission is that he could potentially be sanctioned by one. He was the top commander in Iraq during the time of Abu Ghraib. He wrote and signed a memo approving certain banned interrogation techniques. But he considers the future more important than his personal liabilities:

The General went on to say that, "during my time in Iraq there was not one instance of actionable intelligence that came out of these interrogation techniques."

I interviewed General Sanchez after the event and asked him to elaborate on why he felt the US needed such a commission. "For the American people to really know what happened, " he replied, "...this was an institutional failure, a personal failure on the part of many...."

"If we do not find out what happened," continued the General, "then we are doomed to repeat it."

We can do this with a piecemeal approach, where judges slowly force the truth into light and rumors fly and the worst assumptions about American conduct in the war on terror take root, or we can tell the truth and explain clearly what has been done in our name. I opt for the latter.

Rape At Abu Ghraib

We were told by the President that the photos he chose not to release were nothing particularly sensational and would do nothing to shed more light on the debate. British papers tend toward the lurid and dramatic, but they have an on-the-record source who is fairly unassailable.

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

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

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

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

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

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

The Pentagon denied these allegations, as did Press Secretary Robert Gibbs. They dismissed the Telegraph report and essentially called them untruthful. But of course, they're not attacking the source, and that is Major General Taguba, who knows more about the Abu Ghraib scandal than anybody.

“These pictures show torture, abuse, rape and every indecency.

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

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

Maj Gen Taguba’s internal inquiry into the abuse at Abu Ghraib, included sworn statements by 13 detainees, which, he said in the report, he found “credible based on the clarity of their statements and supporting evidence provided by other witnesses.”
Among the graphic statements, which were later released under US freedom of information laws, is that of Kasim Mehaddi Hilas in which he says: “I saw [name of a translator] ******* a kid, his age would be about 15 to 18 years. The kid was hurting very bad and they covered all the doors with sheets. Then when I heard screaming I climbed the door because on top it wasn’t covered and I saw [name] who was wearing the military uniform, putting his **** in the little kid’s ***…. and the female soldier was taking pictures.”

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

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

These aren't really even new allegations - Seymour Hersh made them several years ago, and has continued to make the charge. Not to mention that, aside from the decision to release the photos, there are legal issues at play here.

Gen. Taguba says he supports President Obama's decision to withold the photos, arguing that "The mere description of these pictures is horrendous enough, take my word for it." Fine—the debate over whether to release the photos is legitimate. I have a more immediate question. If the government is in possession of photographic evidence of an American soldier raping someone, has that soldier been prosecuted? The relevant section of the Uniform Code of Military Justice is here:

(a) Any person subject to this chapter who commits an act of sexual intercourse with a female not his wife, by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct.

It would take a pretty incompetent prosecution to fail to convict someone of a rape for which there is clear photographic evidence. But I can't find any public reference to such a court martial, let alone a conviction.

Maybe that would be "looking backward" and not forward.

This is outrageous and the Administration risks a major credibility gap when they continue to stand mute instead of addressing it. They lose authority at home and around the world by the day.

"Most Transparent Administration In History"

Sorry, I was out for a bit.

There was an expectation of this today, and now the Obama Administration made it official - they're going back to court to block the release of thousands of photographs from Afghanistan and Iraq of detainee abuse sought by the ACLU.

President Obama said on Wednesday that he is seeking to block the release of photographs that depict American military personnel abusing captives in Iraq and Afghanistan, worrying that the images could “further inflame anti-American opinion.”

As he left the White House to fly to Arizona for an evening commencement address, Mr. Obama briefly explained his abrupt reversal on releasing the photographs. He said the pictures, which he has reviewed, “are not particularly sensational, but the conduct did not conform with the Army manual.”

He did not take questions from reporters, but said disclosing the photos would have “a chilling effect” on future attempts to investigate detainee abuse.

The president’s decision marks a sharp reversal from a decision made last month by the Pentagon, which agreed in a case with the American Civil Liberties Union to release photographs showing incidents at Abu Ghraib and a half-dozen other prisons. At the time, the president signed off on the decision, saying he agreed with releasing the photos.

Robert Gibbs, the White House press secretary, said that the president met last week “with his legal team and told them that he did not feel comfortable with the release of the D.O.D. photos because he believes their release would endanger our troops.”

This may be the most Bushian thing Obama has done, not necessarily because of the action, but because of the rationale. First off, the idea that the release of the photos would endanger the troops looks over the fact that the troops are in danger RIGHT NOW because of their placement in harm's way in two unnecessary and failed wars. We've heard all this happy talk about the war in Iraq, yet one set of photos would spark a revolution? I think it betrays a naivete about what the Iraqis already know about detainee abuse. After all, they have, um, access to those who were abused, namely their relatives.

Second, Obama said that the release would have a "chilling effect" on other attempts to investigate abuse. How? If anyone stopped taking photos because of their release, that would have already happened after the release of the pictures in Abu Ghraib. Look, the Defense Department wants everything they do to remain secret. But this is a democracy, and I dare say that the American taxpayer has paid for those photos. We deserve an accounting. And if Obama thinks that denying the EVENTUAL release (he'll lose this in court) will somehow mute the calls for an independent investigation over torture, clearly the opposite will happen.

I hope the stars are out of everyone's eyes with respect to Obama now. And this reversal is sadly not isolated, particularly on national security and civil liberties issues. They want to revive the discredited military commissions process, and sidestep a criminal justice system that has worked for 225 years in favor of what amounts to a kangaroo court. They threatened Britain to keep quiet over evidence showing the torture of Binyam Mohamed, or else they would cut off cooperation with the British government on terror operations and intelligence. They have continued the practice of declaring the state secrets privilege to shut down judicial review of past actions of the executive branch. On these issues, Obama has offered no change whatsoever, but an allegiance to very right-wing ideas about security and privacy and civil liberties. It's shameful.

This Week In Torture

The fight for justice and accountability for those who tortured in our name refuses to fade. Last week three progressive House members introduced a bill calling for a special committee to investigate torture, wiretapping, and other practices of the Bush regime. One of the sponsors, Robert Wexler, talks about it here:

This committee would have the authority to ask the hard questions – to look close – and deliver the truth about the proper role of our government that protects both our civil liberties and the safety of our citizens. We must do both.

The committee will investigate many of the outrageous policies of the Bush Administration to unearth and expose what happened during the past eight years. Witnesses will be subpoenaed and testify under oath. Based on what we learn, the committee will craft legislative recommendations that will be utilized as the Patriot Act and other critical national security legislation are renewed in the coming months and years.

We can't look forward without fully understanding what occurred. We must take a hard look at what went wrong in the last 8 years. We must continue to peel back the veil of secrecy that the previous Administration used as cover to undermine our system of checks and balances, and establish a clear line between what is necessary for our security and what is unlawful government intrusion and a violation of our civil liberties.

This legislation need only pass the House and therefore we have a terrific chance to enact it.

That's at least a start. And the Senate Judiciary Committee will seek testimony from Ali Soufan and Phillip Zelikow next week. Soufan was the FBI interrogator who got information from Abu Zubaydah through legal means, and Zelikow was the State Department official who wrote an alternative memo, sought by Democrats in the House, that dissented from the Bush regime line about the legality of torture (which Bush officials promptly tried to destroy).

These inside efforts are buttressed by outside efforts at accountability, like the Courage Campaign's action item asking their supporters to call Democratic House Judiciary Committee members from California (all 6 of them) and let them know of the state party's resolution to investigate Jay Bybee. The potential removal of Bybee from the federal bench is just an entryway into a larger accountability for the torture regime. A released FBI memo shows that George Bush himself signed off on interrogation tactics that could plausibly be construed as torture, so obviously this should go all the way up the ladder.

Senior FBI agents stationed in Iraq in 2004 claimed in an e-mail that President George W. Bush signed an executive order approving the use of military dogs, sleep deprivation and other harsh tactics to intimidate Iraqi detainees.

The FBI e-mail -- dated May 22, 2004 -- followed disclosures about abuse of Iraqi detainees at Abu Ghraib prison and sought guidance on whether FBI agents in Iraq were obligated to report the U.S. military’s harsh interrogation of inmates when that treatment violated FBI standards but fit within the guidelines of a presidential executive order.

According to the e-mail, Bush’s executive order authorized interrogators to use military dogs, "stress positions," sleep "management," loud music and "sensory deprivation through the use of hoods, etc." to extract information from detainees in Iraq, which was considered a violation of the Geneva Conventions. Bush has never before been directly linked to authorizing specific interrogation techniques at Guantanamo or Abu Ghraib. Bush has admitted, however, that he personally signed off on the waterboarding of three "high-value" prisoners.

With even staunch conservatives like Ken Adelman backing away from the knee-jerk apologist defense of torture, and with enough experts in the field willing to discuss both the unreliability of evidence gained through torture and the general immorality of the practice, as long as Congress is pushed to action, it will be hard to stop the train once it heads down the tracks.

Phillip Gourevitch, who as a chronicler of the Rwandan genocide knows quite a bit about accountability for war crimes, explains why we could maybe take a different view, away from prosecution and toward a Truth Commission. I don't know that I totally agree, but it's worth noting.

America is now embroiled in a debate about how, or whether, to hold the true masterminds—the former President, the former Vice-President, the former Defense Secretary, and their top lawyers—to account for their criminal policies. Here, we are on uncharted ground. As a rule, the war-crimes prosecutions of the past century were conducted by a group of states, acting collectively, against the (usually defeated) leaders of another state. When states hold their own leaders to account, it tends to happen not after an election but after a revolution, when the very premise of the ancien régime is treated as criminal. Furthermore, prosecution and punishment are not necessarily the best means to eradicate the rot from a political system, because in adjudicating systemic crimes political compromise is inevitable. It is practically impossible, and politically intolerable, to contemplate holding to account every corrupted officer in the chains of command that ran between the White House and the guardhouse at Abu Ghraib or at Bagram Airbase. A full and public reckoning of the historical record might be less cathartic but would ultimately be more valuable than a few sensational trials.

In any event, President Obama, who has taken a courageous lead in bringing the issue of torture to light, and in insisting on recriminalizing it, appears to have no interest in taking any of the policymakers to court—though he has not precluded doing so. Still, to date the only Americans who have been prosecuted and sentenced to imprisonment for the criminal policies that emanated from the highest levels are ten low-ranking servicemen and women—those who took and appeared in the Abu Ghraib photographs, and embarrassed the nation by showing us what we were doing there. Charles Graner is the only one remaining in prison, serving ten years. His superior officers enjoy their freedom, and C.I.A. interrogators, who spent years committing far worse acts against prisoners than Graner did even in the darkest days at Abu Ghraib, have been assured immunity.

But, if full justice remains impossible, surely some injustices can be corrected. Whenever crimes of state are adjudicated—at Nuremberg or The Hague, Phnom Penh or Kigali—the principle of command responsibility, whereby the leaders who give the orders are held to a higher standard of accountability than the foot soldiers who follow, pertains. There can be no restoration of the national honor if we continue to scapegoat those who took the fall for an Administration—and for us all.

The Washington Post covered those Abu Ghraib guards this week as well, noting the absurdity of Charles Graner and his buddies on the night shift, while legally culpable, being the only people held to account for this systematic Administration policy of torture.

Whether you agree with Gourevitch that a public airing of the full architecture of torture is more desirable, or whether you agree with me that accountability necessitates prosecution or else the precedent of no accountability will be set in stone, we can all agree that doing nothing, while still trying to use our moral authority to castigate others who employ torture, makes a mockery of the rule of law. The "torture videos" from a sheikh in the United Arab Emirates are somehow hurting the country's relationship with the United States, as if we have no short-term or long-term memory whatsoever:

The U.S. is a very tolerant nation, but the one thing we simply cannot abide is when a government fails adequately to investigate allegations of torture on the part of key officials and fails to hold them accountable. That's where we draw the line.

The UAE royal family claimed that they had investigated and resolved the matter and made sure that it would not happen again -- but when it comes to torture, we have made clear that such a "look-forward-not-backwards/reflection-not-retribution" mentality is morally outrageous and unacceptable -- from the UAE [...]

What kind of primitive, brutal country knows for years that its own powerful government officials participated in torture and then fails even to investigate what happened, let alone impose meaningful accountability on the torturers? The international community simply cannot tolerate acquiescence to that sort of evil.

Will anyone recognize this unbelievable juxtaposition, and give this country the cleansing they need through real justice?

This Time I Do Believe The 11-Dimensional Chess

On the heels of the OLC memos, the SASC report, and the Sentate Intelligence Committee timeline, add yet another disclosure from Washington, this one more visceral than a legal opinion, to increase the pressure to act.

The Obama administration agreed late Thursday to release dozens of photographs depicting alleged abuses at U.S. prisons in Iraq and Afghanistan during the Bush White House.

The decision will make public for the first time photos obtained in military investigations at facilities other than the Abu Ghraib prison in Iraq. Forty-four photos that the American Civil Liberties Union was seeking in a court case, plus a "substantial number" of other images, will be released by May 28.

The photos, examined by Air Force and Army criminal investigators, are apparently not as shocking as those taken at Abu Ghraib, which became a symbol of U.S. mistakes in Iraq. But Defense Department officials nevertheless are concerned that the release could incite another backlash in the Middle East.

Some of the photos show U.S. service members intimidating or threatening detainees by pointing weapons at them, according to officials who have seen them. Military officers have been court-martialed for threatening detainees at gunpoint.

"This will constitute visual proof that, unlike the Bush administration's claim, the abuse was not confined to Abu Ghraib and was not aberrational," said Amrit Singh, a lawyer for the ACLU, which reached the agreement as part of a long-running legal battle for documents related to anti-terrorism policies under President George W. Bush.

If Abu Ghraib merely existed in documents, the impact would have been far less. Pictures, videos, just any images bring these abstract debates home in a more immediate way. And there will be even more disclosures to come from this ACLU lawsuit.

Other disclosures to be considered in the weeks ahead include transcripts of detainee interrogations, a CIA inspector general's report that has largely been kept secret, and background materials in a Justice Department investigation into prisoner abuse.

In each instance, Obama and his administration are being forced to decide whether to release the material entirely, disclose it with redactions, or follow the lead of the Bush administration and fight in court to keep it classified.

The OPR investigation, which is fully completed, will really put pressure on the DoJ lawyers who provided the legal justifications for torture.

Given all this, I just don't buy the official narrative about the White House blocking investigations and stalling accountability. Sure, they may be halting a rush to investigations for now, but they're methodically laying out a fact pattern, both by themselves and with the support of the Congress, that will make investigations impossible to ignore. I have no doubt that the President worries about his forward-looking agenda. But he made the tough decision to release the memos that kicked off this frenzy, and he's committing to releasing more. There's a difference between not wanting a commission and not wanting to be responsible for one. Of course, the best way to ensure that would be through a special prosecutor. After all, we now have senior Bush Administration officials definitively signing off on torture. A trickle of releases makes no sense without follow-up, investigation and some accountability. And surely Obama knows this.

No wonder Liz Cheney's so nervous.

The SASC Report - "Designed To Elicit False Confessions"

The very long Senate Armed Services Committee report on torture and interrogation tactics used by the military has been released in unredacted form, on the heels of the OLC torture memos. Because the report gives a broader history of the Bush torture regime, it is unquestionably more damning, with more details and a more coherent timeline. For instance, we learn that the Bush Administration made a "wish list" for torture, before the first detainees even came into custody. Unlike the familiar narrative that torture techniques were only employed after the subjects refused to give up information, this was their M.O. from the beginning.

A report by the Senate Armed Services Committee released Tuesday night says that some harsh interrogation techniques used at Abu Ghraib prison weren’t approved by officials in the George W. Bush administration until after they were already being put into use.

“Intelligence and military officials under the Bush administration began preparing to conduct harsh interrogations long before they were granted legal approval to use such methods — and weeks before the CIA captured its first high-ranking terrorism suspect, Senate investigators have concluded,” the Washington Post reported Wednesday.

The paper adds, “Sen. Carl M. Levin (D-Mich.), chairman of the committee, said the new findings show a direct link between the early policy decisions and the highly publicized abuses of detainees at prisons such as Abu Ghraib in Iraq.”

“Senior officials sought out information on, were aware of training in, and authorized the use of abusive interrogation techniques,” Levin said. “Those senior officials bear significant responsibility for creating the legal and operational framework for the abuses.”

We knew that President Bush's order in February 2002, months before the Bybee torture memo, that Common Article 3 of the Geneva Conventions did not apply to Al Qaeda or Taliban subjects kicked off the finding of legal rationales for torture. But the Administration actually started the process in December 2001, when the General Counsel of the Department of Defense, William Haynes, solicited information on detainee "exploitation" from the agency that oversees SERE (Survival, Evasion, Rescue, Escape) training. And we know now, although I think we already knew this, that the SERE techniques were based on Chinese communist techniques, used against Americans to ELICIT FALSE CONFESSIONS.

Leading us to this:

The Bush administration applied relentless pressure on interrogators to use harsh methods on detainees in part to find evidence of cooperation between al Qaida and the late Iraqi dictator Saddam Hussein's regime, according to a former senior U.S. intelligence official and a former Army psychiatrist.

Such information would've provided a foundation for one of former President George W. Bush's main arguments for invading Iraq in 2003. In fact, no evidence has ever been found of operational ties between Osama bin Laden's terrorist network and Saddam's regime [...]

A former senior U.S. intelligence official familiar with the interrogation issue said that Cheney and former Defense Secretary Donald H. Rumsfeld demanded that the interrogators find evidence of al Qaida-Iraq collaboration.

"There were two reasons why these interrogations were so persistent, and why extreme methods were used," the former senior intelligence official said on condition of anonymity because of the issue's sensitivity.

"The main one is that everyone was worried about some kind of follow-up attack (after 9/11). But for most of 2002 and into 2003, Cheney and Rumsfeld, especially, were also demanding proof of the links between al Qaida and Iraq that (former Iraqi exile leader Ahmed) Chalabi and others had told them were there."

Yes, it was all connected. They approved the torture to gather the false intelligence to push forward their agenda in Iraq. And it was done at a shadowy level, without disclosure to most top officials that these techniques were banned by the United States and prosecuted when used by foreign countries for decades. And nobody involved bothered to consult the past, either. Or at least, they didn't want to know. Ignorance was bliss.

And once and for all, we know that tactics used by the military at Gitmo were rapidly outsourced to Abu Ghraib. The work of Charles Graner and Lynndie England and the gang was not the work of "a few bad apples." It was policy, as was obvious at the time.

Nobody should buy the argument that, because Americans at SERE school don't have lasting physical or psychological damage from these techniques, they don't constitute torture. It should be obvious that going to school and being held captive with no end in sight are two different things, and the two experiences have different effects on the mental state.

Emptywheel notes that DoJ's guidelines on waterboarding differed from the CIA's, but the CIA followed the more expansive DoJ guidelines.

And if you believe that there were no objections, consider that all the briefings for Congress were classified (are they supposed to reveal classified information?), and then this:

At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn’t entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that: The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department’s archives.

The conservative response to all this inevitably devolves into they're not like you and me, those Arabs. I'd prefer to see them try that excuse in court. (They'll also probably whip out Dennis Blair's statement that the interrogation tactics yielded high-value information, as if the ends justify the means, and as if we should take Blair's claims at face value against mounds of evidence that the information was essentially useless). And this report implicates practically everyone at the highest levels, particularly Bush, Rumsfeld and Cheney.

John Conyers wants hearings. I think it will be virtually impossible to stop this from becoming a full-blown investigation. The reckoning is coming.

...in re: The Blair memo - the National Intelligence Director's conclusion was that torture does more harm than good, which I suspect you won't hear much when conservatives talk about it.

Dispatches On The War On Torture

Some hits and misses from the courts yesterday. First, Maher Arar, who was stopped at JFK Airprort, rendered to Syria and tortured, had his case dismissed yesterday on the grounds that he technically never set foot on US soil and thus his claims cannot be heard in federal court.

That's a little unbelievable.

On a somewhat brighter side, a court took a look at the evidence in a habeas suit for a prisoner at Guantanamo, and found it so wanting that he quoted Lewis Carroll:

With some derision for the Bush administration’s arguments, a three-judge panel said the government contended that its accusations against the detainee should be accepted as true because they had been repeated in at least three secret documents.

The court compared that to the absurd declaration of a character in the Lewis Carroll poem “The Hunting of the Snark”: “I have said it thrice: What I tell you three times is true.”

“This comes perilously close to suggesting that whatever the government says must be treated as true,” said the panel of the Court of Appeals for the District of Columbia Circuit.

Well, yes, that's worked for them so far, so why wouldn't they continue. We're going to see this over and over in these habeas suits. The government doesn't have the goods to charge these people, and if they did, they would have done so by now.

Sensing this problem, yesterday the government charged a prisoner at Gitmo with the USS Cole bombing, almost completely out of the blue. And this was a prisoner who was subject to waterboarding.

Pentagon officials announced eight charges against Abd al Rahim al-Nashiri, a Saudi citizen of Yemeni descent. He has been in U.S. custody since late 2002, and is one of three detainees the government has acknowledged subjecting to an interrogation technique that simulates drowning.

Nashiri's "waterboarding" at the hands of CIA interrogators -- a technique that human rights groups around the world have condemned as torture -- figures to be a central element of his case. Defense attorneys immediately vowed to challenge any evidence obtained by coercion and criticized the Pentagon for moving forward with the military trial despite officials' awareness of how Nashiri was treated [...]

Nashiri contended at a military hearing last year that he confessed to masterminding the Cole attack only because he had been tortured, according to a transcript of that hearing.

As Marcy Wheeler notes, this should be an interesting trial because Nashiri is the only one of the three waterboarded prisoners who will challenge his captors in court.

And other former prisoners are challenging their captors in court - only this time, it's their corporate contractors.

Four Iraqi men say they are suing US military contractors for torturing them while they were detained at the Abu Ghraib prison near Baghdad.

The men, who were all released without charge, have brought separate lawsuits in four US courts.

One of the men said he was beaten, threatened with dogs and given electric shocks during four years at the prison.

I wonder if this will be thrown out too, because they never "set foot" on US soil.

Big Picture On Torture

There's quite a remarkable hearing going on today in a House subcommittee. David Addington and John Yoo are voluntarily testifying about the torture practices of the Bush Administration. Thanks to time zones, I didn't get to tune in until the end of the first round of questioning, but I'm getting the feel of it from reports by Spencer Ackerman and at the liveblog on Daily Kos.

It seems like both of them are being evasive but for completely different reasons. Addington ought to be held in contempt of Congress for just plain contemptuousness. As Scott Horton noted on Pacifica's coverage, he clearly believes himself to be smarter than all the Representatives in the room, and he has no problem bullying them around the way he reportedly bullies everyone in the executive branch. He also doesn't mind lying about his role in designing torture tactics after a personal trip to Guantanamo. He essentially said, according to Horton, that the world is very dangerous and the threat is not yet over, implying that Congress had better back down with all the questioning and recognize that absolutely anything can be done in the name of protecting the country. Here's an example:

Addington, naturally, is being legalistic and careful. Can president violate statutes during wartime? "As a general proposition, no, ... but facts matter for a lawyer." Which facts would justify the president violating such a statute? Addington says he won't answer. He's combative, and good. Could self-defense be such a case? "I haven't expressed an opinion... I haven't researched the statute." Says on FISA, "there is a serious constitutional question that Congress might... try to block the president's power."

The President's power, that is, to allow prisoners to be sodomized with a broomstick. The President's power to murder prisoners in US custody. The President's power to hide prisoners from the Red Cross in violation of international law. The President's power, and the power of those around them, to commit war crimes. For your protection. In your name.

"After years of disclosures by government investigations, media accounts and reports from human rights organizations, there is no longer any doubt as to whether the current administration has committed war crimes," Taguba wrote. "The only question that remains to be answered is whether those who ordered the use of torture will be held to account."

Now Yoo, on the other hand, seems afraid for his life and livelihood. He is trying not to answer any question too fully, is stretching out every answer to run out the clock on the questioners, is debating the meaning of words like "implemented," and is consulting with two lawyers on practically every question. He's trying to explain away the Convention Against Torture and generally throw up enough mud to resist any real answer. He's constantly citing Justice Department guidelines that restrict his testimony, too. Over and over he makes the claim that he was simply a lawyer providing legal advice. Of course, at the Nuremberg trials the precedent was set that lawyers whose advice was used to commit war crimes are culpable in those activities. If the policy is to go to the very limit, and the lawyer sets the limit, then he is creating the policy. Yoo can't wiggle off the hook... at least in an international court of law. The Military Commissions Act of 2006 gave some debatable measure of immunity to most of this crowd for their crimes.

The subcommittee is being very thorough and not taking a lot of bullshit. As the facts about physical and psychological abuse slowly come to light, not only at Abu Ghraib but across all US detention sites, and as we learn more about those who directed the policies that led to this torture, abuse and murder, the policymakers have become more unbridled in investigating these crimes. The grilling of William Haynes - almost made a federal judge for life - at the Senate Armed Services Committee last week showed an unusually strident Carl Levin and his compatriots angered by Haynes' activities. After the Supreme Court asserted in Boumediene that prisoners captured at Guantanamo have the ability to challenge their crimes, we've seen the DC appeals court overrule the Administration on their designation of "enemy combatants," where other prisoners have begun to use their habeas rights to challenge their detentions. The Bush-Cheney policies on interrogation and torture have been discredited by the law and by Congress, and the notion of a "few bad apples" has been totally rejected. As Jerrold Nadler said today:

"It does not go too far to say the reputation of our nation as the leading exponent of human rights and human dignity have been besmirched by this administration [...] I know I speak for many of colleagues when I say that the more we find out about what was done and how it was justified, the more appalled we have become."

None of this, of course, matters to Addington and Yoo, who instead value their radical agenda of executive power and aren't too concerned about the courts and the Congress' opinion. In fact, they're already winning this battle where it counts.

A new poll of citizens’ attitudes about torture in 19 nations finds Americans among the most accepting of the practice. Although a slight majority say torture should be universally prohibited, 44 percent think torture of terrorist suspects should be allowed, and more than one in 10 think torture should generally be allowed.

The findings of the WorldPublicOpinion.org poll put the United States alongside countries like Russia, Egypt and the Ukraine and lagging far behind allies like Great Britain, Spain and France in how its citizens view torture.

The poll found 53 percent of Americans believed all torture should be prohibited; the average in all 19 countries polled was 57 percent.

The Jack Bauer-ization of the torture question, the mainstreaming of cruel and unusual punishment, the ability for the right to demagogue this issue for six years, means that so much of this bipartisan condemnation is coming a little too late. It's nice to hear, but Addington's bullying view has ruled the day for so long that I don't know if we can even get back to a sense of normalcy.

WASHINGTON — A bipartisan group of 200 former government officials, retired generals and religious leaders plans to issue a statement on Wednesday calling for a presidential order to outlaw some interrogation and detention practices used by the Bush administration over the last six years.

The executive order they seek would commit the government to using only interrogation methods that the United States would find acceptable if used by another country against American soldiers or civilians.

It would also outlaw secret detentions, used since 2001 by the Central Intelligence Agency, and prohibit the transfer of prisoners to countries that use torture or cruel treatment. The C.I.A. has allowed terrorism suspects to be taken to such countries.

Among the signers is George P. Shultz, secretary of state under President Ronald Reagan. “It’s a good time to step back, take a deep breath and set a standard,” Mr. Shultz said in an interview.

That would have been a good time in October 2001, before war fever made everybody in Washington a little crazy, and the White House was allowed to take the policies they always wanted to implement off the shelf, using the SERE program designed for our soldiers to resist enemy torture and reverse-engineering it to torture others. We knew in 2001 that torture was ineffective, counter-productive, prone to generating bad intelligence, and would create more terrorists than it would stop terrorist attacks. It's not some grand display of honor to speak out about it now. It's actually more like cowardice.

I appreciate the work of this subcommittee, and after this embarrassment of a President's term ends I would hope that there is a grand inquest into these high crimes. But don't bet on it. And the court of public opinion, the space has already been given to the fearmongers and jingoists to connect torture with saving American lives. The truth, of course, is the opposite.

CA-46: Rohrabacher With Another Case Of Foot-In-Mouth Disease

Dana Rohrabacher's been saying stuff like this for years, only now he has an opponent who's going to call him on it.

Today, the House Subcommittee on International Organizations, Human Rights, and Oversight held a hearing on detainee treatment at Guantanamo Bay, focusing on a recent FBI inspector general (IG) report documenting abusive practices at the facility. The report describes, among other things, a “war crimes file” created by FBI agents concerned about the interrogation tactics they witnessed at Guantanamo.

Rep. Dana Rohrabacher (R-CA), however, sees nothing wrong with the accounts of abuse. While questioning IG Glenn Fine today, Rohrabacher insisted the report documented nothing more than “fraternity boy pranks and hazing pranks,” and hardly constituted torture:

ROHRABACHER: They seem like more like pranks, hazing pranks from some fraternity than some well-thought-out policy of how do you torture someone and get information from them. […]

I will have to tell you, when most people hear the word “torture,” which has been bandied around here, I don’t believe that they think of it as holding a growling dog near somebody but not the growling dog — you know, it’s one thing to have the growling dog eating someone’s leg or arm versus — which is absolute torture. It’s another thing to have a growling dog around, or putting panties on someone’s head, or discussing — telling him he had repressed homosexual tendencies in his presence. I mean, I’m sorry, these are acts of humiliation.

He apparently used the phrase "panties on someone's head" 13 times in 8 minutes.

I could go on and on about how interrogation practices at Abu Ghraib and Guantanamo violate Common Article 3 of the Geneva Conventions, which ban "outrages upon personal dignity," or the UN Convention Against Torture, or sundry torture statutes in this country, and how (as DoJ Inspector Glenn Fine said today) such tactics are not only criminal but incredibly ineffective in gathering intelligence, and how as the world's most powerful nation we have an obligation to uphold the highest standards of human rights lest the world sink to our level, but fortunately, I don't have to say all that this year, because Democratic nominee Debbie Cook is on the case. Here's the statement her campaign emailed me:

"At a time when we need a serious discussion and thorough review of the allegations of torture coming out of Guantanamo Bay, Congressman Rohrabacher has used his position of trust to make jokes and liken the interrogations to nothing more than a frat party.

We need a representative in Congress who will approach the serious issues facing our country with decorum and common sense, instead of cracking jokes. Torture is not to be taken lightly especially when the prestige and moral authority of the United States government is at stake.

The voters of the 46th district deserve a Member of Congress who works hard, has a good grasp of the issues before them and who is taken seriously by their colleagues. That's how you get things done in Congress."

Rohrabacher is an embarrassment, and Debbie Cook is going to give the people of the 46th District a real alternative this year.

"A War Of Sexual Humiliation"

Let me add to the chorus of those expressing their total revulsion in the President's admission that he approved high-level meetings inside the White House to direct what kinds of torture could be used on specific detainees, to the extent of acting out interrogation scenes right there in the room. I've been also spending a lot of my weekend time online reading over my posts from back when the Abu Ghraib scandal broke and we first learned of the beginnings of how torture was employed in our names. I had just started blogging about 10 days before the pictures came out in Sy Hersh's New Yorker article and on CBS. Here was my initial reaction.

I'm really just saddened today. Saddened and sickened by the latest reports that have come from Iraq, tales of torture and humiliation of prisoners at Abu Ghraib (which should now be called My Lai 2.0), of forcing naked Iraqis into simulated sexual positions, of attaching electrical wires to others.

Somehow, we live in a country where we still believe we can take the moral high ground, despite all evidence to the contrary. The official Army reaction was that "this is a small minority of the military, and it's not the Army." In fact, it seems that mercenaries have been running the prison, which is enough of an outrage, that the military is not even in direct control of prisoners of war (This is the true inevitable consequence of outsourcing, as a nation not of workers but of administrators we eventually descend into chaos as we lose all sense of what anyone is doing in our name). This is fucked up on so many levels the eyes are bugging out of my head.

(The wires weren't attached to any electrical source, we later learned. It was a confusing time.)

I figured that as the months went by this would surely consume the Presidential election debate and doom the chances for the Grand Inquisitor-in-chief. And there were certainly enough revelations out there for that to happen. We learned about forced sodomy, dozens of murders, the fact that these policies were widespread and not limited to a few bad apples, the release of many relevant memos which showed that this was authorized at the highest levels. The information was there to make this the issue that would crumble the Bush Administration, if not at the ballot box then by criminal investigation.

But it didn't work out that way. Torture became the new third rail of American politics, barely mentioned above a whisper in 2004 and really not a factor on the campaign trail this year, unless you're talking about the Jack Bauer clones on the right musing about how much torture detainees deserve. Instead of becoming the foundational principle that America has broken, instead of recoiling from torture we accepted it, mainstreamed it, ritualized it, portrayed it in our horror movies and made jokes about it. We certainly never used it as a symbol of an Administration committed to breaking all the moral precepts upon which the country was founded. It gets a polite one-line "No more torture" in Democratic stump speeches, and everyone cheers, and moves on.

We should not move on, ever, until we force ourselves to look at the stain which will never come out. And pursuant to that, I want to tell you about a screening I had the pleasure of seeing a couple days ago for Errol Morris' latest documentary "Standard Operating Procedure."

Morris is probably my favorite filmmaker, and he takes a small-bore approach at determining just what happened at Abu Ghraib and just what is depicted in those now-infamous photos. He uses primarily the source material of the photos themselves, and interviews with most of the military police who took them and participated in them, including Lynndie England, Sabrina Harman, Megan Ambuhl and Javal Davis. It's a complex and difficult film, in one respect because it's hard to presume that these narrators are totally reliable. They've rarely been given such a platform to describe their conduct and set it in perspective, and the fact that ringleaders Ivan "Chip" Frederick and Charles Graner did not appear in the film (Both were in jail at the time of filming and the military prevented any interviews) gives the remaining participants a lot of leeway to blame them for the practices and techniques. There's a lot of "Graner told me to get in the picture so I did" in the film, along with repeated efforts to cast themselves as innocents caught up in a situation beyond their control. England even blames it on being "in love" with Graner; Ambuhl eventually married Graner, even after he fathered a child with England.

But one of the things Morris is a master at is challenging long-held perceptions and forcing you to look at subjects in a different way. It is true that we never have seen and never will see the worst of Abu Ghraib; that happened in the interrogation rooms. We are glimpsing the "softening up" military police was ordered to perform on detainees, and quite a bit of it fell along legal guidelines that military investigators termed "standard operating procedure," incuding some of the more humiliating scenes of stress positions, forced nakedness, even the shot of the hooded man standing on the box with the wires around his fingers. What's shocking is what was authorized as legal. And even what we have to witness is only a fraction of these procedures; in a memorable scene, an MP recounts the day that the head of the prison Col. Pappas, in the immediate aftermath of the revelations in the press, ordered an amnesty for any and all destruction of documents, photos, or any material related to detainee abuse. We are shocked at the destruction of two or three CIA tapes when practically everything at Abu Ghraib was shredded.

A notable scene in the film explores the picture of Sabrina Harman smiling in front of a dead Iraqi detainee packed in ice. The Iraqi died during a brutal interrogation session; the official line at the time was that he had a heart attack. He was locked in a room overnight while top prison personnel tried to figure out the next step. Harman gained access to the holding cell, and first took a posed picture, but then took a series of photographs of the body which revealed beyond a shadow of a doubt that this man was beaten to death and did not succumb to heart failure. Afterwards, personnel took this ghost detainee who was unknown to the Red Cross, stuck an IV in his arm, strapped him to a gurney, and wheeled him out of the cell block, never to be seen again. Harman actually documented the beginnings of a cover-up for murder. In another context she could have received a Pulitzer Prize. Instead she got a year in jail.

(Incidentally, there is a companion book to the film, also called Standard Operating Procedure, co-written by Morris and Phillip Gourevitch, and a substantial article excerpted from the book appeared a few weeks back in the New Yorker. Harman actually went into the Army to gather enough money to go to school. She wanted to be a cop, and specifically a forensic photographer.)

The film is full of these touches, these upset expectations, these deliberations into who these people were and why they did what they did. Morris throughout tries to return some context, to fill out the edges of the frames of these photos, to explain the conditions and the circumstances, and really show that in many respects, a lot of these abuses took place BECAUSE the cameras were present, because there was an artificiality that entered because the participants knew they were being documented. For example, the famous photo of Charles Graner with his arm cocked ready to punch a detainee was a posed photo, according to the MPs.

Afterwards there was a discussion with the filmmaker Errol Morris, and it was fascinating. His belief is that these "few bad apples" were imprisoned for the very act of photography, for leaving a trail for others to find about these abuses (which in the view of Sabrina Harman was her point, she wanted to take the pictures "to show people what was going on here, because otherwise nobody would believe it). Morris said that the question of whether or not the scenes depicted rose to the level of torture is misplaced and spirals into irrelevant questions of precise definitions. Ultimately there is a question of "the principle of fair play and common American decency... you don't punish the little guys and let the big guys get away scot-free." Even without the admission of guilt from the President being known to Morris, he was well aware of his culpability. After all, the Yoo memo justifying the already-enacted sins of the Bush Administration come down to assertions that a President can do whatever he pleases in a time of war. "Well, if he can do whatever he wants, then doesn't that make him responsible? And if so, why hasn't he been impeached?" By the Administration's own logic, there can be only one man to blame, and the fact that he hasn't reflects a basic cowardice and a failure of will.

Morris believes that the scandal at Abu Ghraib helped Bush get elected in 2004, because it gave us someone to blame. We looked at the scenes of abuse and immediately accused those inside the frame of responsibility, instead of those outside the frame demanding that these acts be undertaken. "The Iraq war," said Morris, "was essentially a war of sexual humiliation." We invaded to show Iraq and the world how tough we are. That we could dominate the rest of the world. That we could impose our will and muffle the sounds of dissent. Abu Ghraib was merely a complement to a war of humiliation. And that comes from the top down.

There's a significant moment in the film, a re-enactment of a spot of blood from the dead prisoner dropping on one of the MPs who was holding him up and unaware of the circumstances. He says "I didn't have anything to do with this guy dying," and yet Morris shows the drop of blood over and over, staining the military uniform. In essence we all have that spot of blood on us. We are all responsible. The spot is deep and full and will be very hard to get out. Our will in getting to the truth about torture, in forcing the nation to recognize that spot of blood, to internalize it, to hold to account those who have stained us, will be the defining factor in whether we can ever be washed clean.

Detainee 063

The aftermath of the declassification of John Yoo's memo essentially validating torture came with a footnote:

For at least 16 months after the Sept. 11 terror attacks in 2001, the Bush administration believed that the Constitution's protection against unreasonable searches and seizures on U.S. soil didn't apply to its efforts to protect against terrorism.

That view was expressed in a Justice Department legal memo dated Oct. 23, 2001. The administration on Wednesday stressed that it now disavows that view.

The October 2001 memo was written at the request of the White House by John Yoo, then the deputy assistant attorney general, and addressed to Alberto Gonzales, the White House counsel at the time. The administration had asked the department for an opinion on the legality of potential responses to terrorist activity.

The 37-page memo has not been released. Its existence was disclosed Tuesday in a footnote of a separate secret memo, dated March 14, 2003, released by the Pentagon in response to a Freedom of Information Act lawsuit by the American Civil Liberties Union.

Whoops!

As if the original memo wasn't bad enough, we now see that this theory of unlimited executive power permeated the thinking on practically every issue. What's interesting is the timing. The memo was written in October 2001. We know that the Administration asked the phone companies before 9-11 to gain access to their communications networks. This seems to me to be an after-the-fact justification, as the torture memo probably was as well. The need for these memos was to indemnify illegal conduct. And it came from the top down.

Some legal experts and advocates said Wednesday that the document, written the month that the United States invaded Iraq, adds to evidence that the abuse of prisoners in military custody may have involved signals from higher officials and not just irresponsible actions by low-level personnel [...]

Scott L. Silliman, head of the Center on Law, Ethics and National Security at Duke University and a former Air Force lawyer, said he did not believe that the 2003 memorandum directly caused mistreatment. But Mr. Silliman added, “The memo helped to build a culture that, in the absence of leadership from the highest ranks of the Pentagon, allowed the abuses at Abu Ghraib and elsewhere.”

Because opinions issued by the Office of Legal Counsel are “binding on the Defense Department,” Mr. Silliman said, Mr. Yoo’s opinion effectively sidelined military lawyers who strongly opposed harsh interrogation methods.

Indeed. So much for "bad apples". Yoo is trying to wiggle out of his own culpability for abuses like Abu Ghraib, but it's clear that he was part of the executive machine that sought harsher and more violent interrogation methods, ostensibly to gather information but essentially to show their enemies that they mean business. In an incredible story in Vanity Fair, Philippe Sands recounts the days of 2002, when the Administration was pushing for techniques that amounted to torture. It all started with one interrogation of one detainee in Guantanamo Bay.

On a table before us were three documents. The first was a November 2002 “action memo” written by William J. (Jim) Haynes II, the general counsel of the U.S. Department of Defense, to his boss, Donald Rumsfeld; the document is sometimes referred to as the Haynes Memo. Haynes recommended that Rumsfeld give “blanket approval” to 15 out of 18 proposed techniques of aggressive interrogation. Rumsfeld duly did so, on December 2, 2002, signing his name firmly next to the word “Approved.” Under his signature he also scrawled a few words that refer to the length of time a detainee can be forced to stand during interrogation: “I stand for 8–10 hours a day. Why is standing limited to 4 hours?”

The second document on the table listed the 18 proposed techniques of interrogation, all of which went against long-standing U.S. military practice as presented in the Army Field Manual. The 15 approved techniques included certain forms of physical contact and also techniques intended to humiliate and to impose sensory deprivation. They permitted the use of stress positions, isolation, hooding, 20-hour interrogations, and nudity. Haynes and Rumsfeld explicitly did not rule out the future use of three other techniques, one of which was waterboarding, the application of a wet towel and water to induce the perception of drowning.

The third document was an internal log that detailed the interrogation at Guantánamo of a man identified only as Detainee 063, whom we now know to be Mohammed al-Qahtani, allegedly a member of the 9/11 conspiracy and the so-called 20th hijacker. According to this log, the interrogation commenced on November 23, 2002, and continued until well into January. The techniques described by the log as having been used in the interrogation of Detainee 063 include all 15 approved by Rumsfeld [...]

We talked about the methods of interrogation. “In terms of their effects,” she said, “I suspect that the individual techniques are less important than the fact that they were used over an extended period of time, and that several appear to be used together: in other words, the cumulative effect.” Detainee 063 was subjected to systematic sleep deprivation. He was shackled and cuffed; at times, head restraints were used. He was compelled to listen to threats to his family. The interrogation leveraged his sensitivities as a Muslim: he was shown pictures of scantily clad models, was touched by a female interrogator, was made to stand naked, and was forcibly shaved. He was denied the right to pray. A psychiatrist who witnessed the interrogation of Detainee 063 reported the use of dogs, intended to intimidate “by getting the dogs close to him and then having the dogs bark or act aggressively on command.” The temperature was changed, and 063 was subjected to extreme cold. Intravenous tubes were forced into his body, to provide nourishment when he would not eat or drink.

We went through the marked-up document slowly, pausing at each blue mark. Detainee 063’s reactions were recorded with regularity. I’ll string some of them together to convey the impression:

Detainee began to cry. Visibly shaken. Very emotional. Detainee cried. Disturbed. Detainee began to cry. Detainee bit the IV tube completely in two. Started moaning. Uncomfortable. Moaning. Began crying hard spontaneously. Crying and praying. Very agitated. Yelled. Agitated and violent. Detainee spat. Detainee proclaimed his innocence. Whining. Dizzy. Forgetting things. Angry. Upset. Yelled for Allah.

The blue highlights went on and on.

Urinated on himself. Began to cry. Asked God for forgiveness. Cried. Cried. Became violent. Began to cry. Broke down and cried. Began to pray and openly cried. Cried out to Allah several times. Trembled uncontrollably.

And people wonder why 81% of the country thinks we're on the wrong track. Yes, there's the economic ruin, but more than that there's a malaise, a cancer, and it's borne from the sin of torture, one of the original sins coming out of this Administration, bullshit about inherent executive power and "new kinds of enemies" and wartime interpretations of commander-in-chief authority. It's truly the banality of evil - lawyers pushing papers around, writing memos sanctioning madness. The men and women who facilitated this monstrosity need accountability for these crimes and how much they've harmed this country. I've been out there in favor of a Truth and Reconciliation Commission for a while, whether it's government-led or simply citizen-led. There must be a reckoning.

UPDATE: Scott Horton at Harper's has more, particularly about how this memo was used to sidestep Pentagon concerns and do an end run around the military's lawyers. This last bit is powerful:

On the other hand, I was amazed speaking with colleagues today who expressed their “torture exhaustion.” “But we already knew all this,” one said to me. “But how can you know about it, know that the nightmare still hasn’t stopped, and not be infuriated?” I answered. “Have you abandoned all sense of ownership, or at least of participation, in the American idea?”

In the end, this whole affair is about political hack lawyers behaving badly and doing so with impunity: the arrival of a culture of alcoholic frat boys chortling as they turn coathangers into branding irons, come now to middle age. When the scandal erupted, Rumsfeld and his crew turned to a standard “soldiers are cannon fodder” response–let’s scapegoat some grunts, and then it’ll all die out, they reasoned. And some two dozen low-level soldiers were court-martialed. Serious officers, and more to the point, the political hacks who crafted the torture system and hammered it through faced no accountability in any form. They depart with a big party and go off to take in six-figure salaries as oil company executives, it seems. The heroic figures in uniform who stood against the criminality are intimidated, hounded, denied promotions, forced out of the service. It’s all like some dark parallel universe–not the America I thought I grew up in.

Silence will buy us a continuation of this corruption of our nation. But isn’t it worth raising your voice and articulating your anger to get our country back? It should start with insisting that Congress use the tools it has–oversight and the budget–to force changes. Say “no” to torture; it’s an easy first step on the road back to decency.

Why Are We Paying War Criminal John Yoo's Salary?

At my home site I took a look today at John Yoo's recently declassified memo, which is more responsible for torture and detainee abuse at Guantanamo, Abu Ghraib and throughout American prison sites abroad than practically any other document.

If you're interested in weeping, you can read the 81-page memo yourself.

Part 1

Part 2

Yoo simply made up a new set of executive powers that trumped the Geneva Conventions, domestic statutes against torture, and virtually the whole system of the law itself.

If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions.

Kind of a "self-defense before the fact" belief, completely contrary to how the American legal system works [...] The closed loop here is self-perpetuating. The DoJ writes a memo saying that the President has virtually unlimited power in wartime. The CIA and the Pentagon then takes the memo and uses it as proof of legality for their crimes. So we have an executive branch validating the rest of the executive branch, essentially a one-branch government that writes, executes and adjudicates the law.

There is no question that John Yoo is a war criminal; he provided the legal theories that the executive branch follows to this day, even though the Defense Department vacated this particular memo in 2003.

Elsewhere in the piece I noted that Berkeley must be exceedingly proud. Yoo is a tenured law professor who has been teaching at the University of California since leaving the Justice Department. The UC, as we know, is a public university system paid for with 3.2% of the general fund budget. Full professors there can earn up to $164,700 a year annually.

That comes out of my hide. Your hide. John Yoo is making his living based on public payments through taxes and other receipts. And he is an unquestioned war criminal.

I believe in academic freedom and understand the slippery slope of removing a faculty member with tenure because of their political views. In a best-case scenario The Hague would be making the decision of when John Yoo leaves his cushy law professor job by dragging him off in leg irons. But failing that, there has to be at least some standard of competence and dignity among a public university. The shoddy logic and faulty reasoning in this declassified memo should be a firing offense alone; and the implications of that memo should be more than enough to cement that. Not only is John Yoo teaching your kids about the Constitution and the law, we're all paying him to do it. And so at the very least the UC Regents need to hear from everyone in California, expressing their disappointment that they are harboring a war criminal at their flagship school, and determining what they will seek to do about that.

A World That Has Gone Mad

This year's Best Documentary Oscar went to Alex Gibney's Taxi To The Dark Side, an exploration of the inhumane and criminal practices by the US government in interrogating suspects in the war on terror, particularly a taxi driver named Dilawar, murdered at Bagram Air Force Base under suspicious circumstances. I will submit that next year's Best Documentary Oscar will go to Standard Operating Procedure, Errol Morris' look back at the horror of Abu Ghraib. Political art of this stripe is usually ahead of the curve, and clearly people want to know more about how the rule of law has been undermined in the age of Bush. People are looking to peel back the layers.

This, he argues, is the paradox at the heart of the Abu Ghraib scandal. Yes, they are an exposé - without them, we wouldn't know about the horrors of the prison. After all, the US authorities went to considerable lengths to cover up what was happening. But the photographs are also about concealment. "I am now really interested in how the photographs encouraged us not to investigate Abu Ghraib," says Morris. "They create a barrier you don't want to walk beyond."

Morris, speaking in a Berlin hotel, is used to asking questions, not answering them, but he is gracious and humorous. He was told many times during the making of SOP that he was "much too late", and that Abu Ghraib was no longer a news story. He disagrees, and takes issue with the idea that the disgraced guards - the so-called "bad apples" he interviews in the documentary - should show more obvious evidence of remorse. His own attitude toward Lynndie England and others is far from hostile, and his film at times comes across as strangely sympathetic. "I have a lot of trouble interviewing people I don't like," he says. "Maybe I have to like them [the guards] - but I do like them. I am certainly engaged by them. I am not interviewing them because I want to pass judgment. There are all these odd ideas that you do an interview to get someone to confess or apologise. It is almost a Christian idea of the interview. Because I don't do that, I think I make people angry [...]

If you ask me, are these pictures of torture, I would say yes. Yet, they are defined by the US military as 'standard operating procedure'. You're talking about a world that has gone mad."

And this mad world continues to unfold. Last week we learned that the CIA used the British island of Diego Garcia as a refueling stop for transporting terror suspects gained through the practice of extraordinary rendition, without the knowledge of the British government. And we learned about the process of military commissions at Guantanamo Bay, which are at the very least rigged.

Colonel (Morris) Davis's criticism of the commissions has been escalating since he resigned in October, telling the Washington Post that he had been pressured by politically appointed senior Defense officials to pursue cases deemed "sexy" and of "high interest" (such as the 9/11 cases now being pursued) in the run-up to the 2008 elections. Davis, once a staunch defender of the commissions process, elaborated on his reasons in a December 10, 2007, Los Angeles Times op-ed. "I concluded that full, fair and open trials were not possible under the current system," he wrote. "I felt that the system had become deeply politicized and that I could no longer do my job effectively." [...]

When asked if he thought the men at Guantánamo could receive a fair trial, Davis provided the following account of an August 2005 meeting he had with Pentagon general counsel William Haynes--the man who now oversees the tribunal process for the Defense Department.

"[Haynes] said these trials will be the Nuremberg of our time," recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

"I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis continued. "At which point, [Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions.'"

For the record, this odious character William Haynes resigned today.

A couple documentaries are not going to restore the soul of the country and reverse these damaging policies. The Office of Professional Responsibility investigation into the practice of waterboarding and the role of the Justice Department in authorizing the technique is a better start. But it's almost overwhelming. A lot of people are musing that what's driving the high turnout in the Democratic primaries is talk of hope or change or belief. What's driving the turnout is anger. Unadulterated anger with what the President and the Republican Party has done with this country. And that anger is like a scab that we have to keep picking at. We must know what's been done in our name.