As featured on p. 218 of "Bloggers on the Bus," under the name "a MyDD blogger."
Tuesday, June 02, 2009
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.
Yes, it's only CNN.com, and the media would probably not dare have such an effective liberal spokesman on the broadcast airwaves. But David Waldman (nee Kagro X) really destroys his fellow combatants talking about torture here, and all of these "Democratic strategists" are welcome to pick up his point of view as a model:
These simply are facts. The United States tortured detainees to extract false confessions about an Iraq/Al Qaeda link. The Washington Post tries to obscure those facts by allowing anonymous intelligence officials, probably holdovers from the Bush Administration, offer their one-sided view of things without rebuttal, acknowledging that Abu Zubaydah and Khalid Sheikh Mohammed were questioned about Iraq's ties to Al Qaeda but claiming that waterboarding did not accompany that questioning. There's no way to disprove their statements but plenty of people who contradict them. And so instead of giving room for only anonymous sources repeating Bush-era spin, we need a full investigation of every facet of United States detention and torture policy from 2001 to the present to determine if we subjected prisoners to illegal tactics to make a case or justify a case for war. We're no longer talking about those idiotic ticking time bomb scenarios.
Jane Hamsher created a Facebook page for Kagro. You can join it. This entire Nancy Pelosi/CIA brouhaha is designed to intimidate Democrats into stopping any investigation into what the Cheney regime really did. Since Pelosi has gone on record supporting a Truth Commission, that threat ought not to work. But the media is certainly giving it the college try. We must have investigations and prosecutions where necessary, especially given the latest revelations connecting torture to Iraq and the lies that led to war.
I don't know why Nancy Pelosi wants to get involved in a fight with the CIA that is all now about her, questions about her credibility.
Here's the media drill. The CIA puts out a bogus list of assertions. Nancy Pelosi questions them, along with practically everyone else who was briefed. And the story becomes about Nancy Pelosi rather than the discredited assertions of the CIA. And of course all of this misdirects the key new information about torture, that the Vice President has been charged by top officials of desiring to torture detainees to extract false confessions about a link between Iraq and Al Qaeda and justify the invasion of Iraq.
Multiple news accounts this morning report that Pelosi’s credibility is in question after yesterday’s press conference, in which she accused the CIA of lying about what they told members of Congress about the agency’s use of torture. This theme was sounded by MSNBC, WaPo’s Dan Balz, the New York Times write-up, and many others.
That’s as it should be. But I challenge you to find a news account that stated with equal prominence that the CIA’s credibility is also in question.
Let’s briefly recap. Three senior Democrats — Pelosi, Bob Graham, and Jay Rockefeller — have all publicly claimed that the CIA didn’t brief them about the use of torture in the manner the agency has claimed. Meanwhile, the CIA itself has conceded that its own accounting may not be accurate.
Yet key facts that cast doubt on the CIA’s claims have been buried or completely omitted from multiple news reports. The Times’s first mention of Graham’s claims came today, five days after he first made them, and they were buried in the 22nd paragraph of the paper’s write-up. Neither The Time nor The Post have even mentioned Rockefeller’s claims once. The networks have refused across the board to mention the CIA’s own unwillingness to vouch for the accuracy of its information.
Even Leon Panetta's response to Pelosi today fails to stand behind their documents, hedging his bets by saying that "it is up to Congress to evaluate all the evidence and reach its own conclusions about what happened." And Pelosi, for her part, wants to evaluate all the evidence, another fact left out of the news reports.
Everybody's talking about Nancy Pelosi's press conference yesterday. I'm listening to Republicans on cable yapping about this contradiction or that contradiction. But what I've seen very little attention to is the fact that Pelosi had an answer that really answers all the questions, a plenary answer you might say: she supports a Truth Commission [...]
That says it all. She wants it all investigated. The whole point of this storm about Pelosi is that her critics want her to be embarrassed and stop supporting a Truth Commission or any sort of examination of what happened. But she's not. She still says there should be an investigation. Her critics still want the book closed. That says it all. She'll have to stand or fall with the results of an actual investigation. Her opponents on this are simply risible hypocrites.
And who are her opponents? The media swarm, which is chasing the soccer ball of the latest conflict rather than exercising any judgment about the relative merits of all the claims or the additional circumstances.
Nancy Pelosi came out and said it today. It was a bit much when these right wingers kept lauding torture as this awsom program keeping Americans safe, and at the same time pointing the finger and yelling "Nancy knew!" as if there was something wrong with it. Ultimately, it doesn't matter even a little bit who knew what and when. The action is illegal and ought to be prosecuted. But today Pelosi confirmed that the CIA and the Bush Administration lied repeatedly to Congress.
PELOSI: The CIA briefed me only once on enhanced interrogation techniques in September 2002, in my capacity as ranking member of the intelligence committee. I was informed then that the Department of Justice opinions had concluded that the use of Enhanced Interrogation Techniques were legal. The only mention of waterboarding at that briefing was that it was not being employed. [...]
We also now know that techniques including waterboarding had already been employed and that those briefing me had given me inaccurate and incomplete information. At the same time the Bush administration…was misleading the American people about the threat of weapons of mass destruction in Iraq [...]
PELOSI: So on the subject of what’s happening in Iraq, when it’s talking about the techniques used by the intelligence community on those they’re interrogating, at every step of the way, the administration was misleading the Congress. And that is the issue. And that is why we need a truth commission to look into the issue.
REPORTER: So Madame Speaker, just to be clear, you’re accusing the CIA of lying to you in September of 2002?
PELOSI: Yes. Misleading the Congress of the United States.
It goes without saying that, at the time of this briefing, the CIA was ALREADY waterboarding prisoners.
And we know they've been lying about the rest of it. Bob Graham, then the chair of the Senate Intelligence Committee, received no information about waterboarding, and in fact received less info than the House Intelligence Committee leaders, probably because ranking member Richard Shelby was leaking like a sieve at that time. Jay Rockefeller, later the ranking member on Senate Intel, stated outright that the CIA document listing briefings and attendees is wrong, that he didn't attend a briefing which the document has him attending. We know that Rockefeller is probably telling the truth since the CIA won't vouch for anything in the document.
As I've said, the CIA's job description requires their agents to lie. Why anyone would trust anything put out by them is beyond me. The CIA basically is blame-shifting here and Nancy Pelosi threw it right back in their face today.
This is precisely why those of us seeking accountability and justice have called for a full investigation so we can learn from what happened as well as ensure it never happens again by actually prosecuting those responsible. Anything less practically ensures we have this conversation again and again down the road.
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?
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.
The CIA is decommissioning the secret overseas prisons where top al Qaida suspects were subjected to interrogation methods, including simulated drowning, that Attorney General Eric Holder, allied governments, the Red Cross and numerous other experts consider torture, the agency said Thursday.
In an e-mail to the agency's work force outlining current interrogation and detention policies, CIA Director Leon Panetta also announced that agreements with the private security firms guarding the so-called black sites will be "promptly terminated," and contractors no longer will be used to conduct interrogations.
Panetta, however, said that CIA officers who were involved in interrogations using "enhanced" methods authorized by the Justice Department during the Bush administration "should not be investigated, let alone punished."
I actually thought these sites were already shuttered. And I don't want private mercenaries involved in the interrogations process, so all to the good. But we have a cancer in this country caused by failing to face up to our actions. I don't think the low-level interrogators who carried out the policies are necessarily responsible - but they can certainly tell us who gave the order, and who was next on the rung in the chain of command. That's how you build a case and seek the truth. Blanket amnesty at any level impedes the eventual reckoning, and it's wrong.
And one of the Gitmo lawyers says Obama's people are stonewalling him, too. Man, they really want to make sure nobody goes down for this? What a corrupt bargain. And it's only fitting that the highest of High Broderists doesn't see a problem at all:
“I understand the reluctance to open a wide-ranging probe of past practices. It seems to me we are better off focusing on cleaning up the policies and practices for the future than trying to settle scores for past actions.”
David Broder, famously, as Clinton’s administration wound down:
“He came in here and he trashed the place, and it’s not his place.”
Sargent, and his former colleagues at TPM, call Washington "wired for conservatism." I prefer to think of it as wired for self-protection. Getting a hummer was all Clinton's problem. But they led the cheers while their golden boy Mr. Bush was authorizing the torture of human beings. They don't want to see their friends hurt, but really they don't want to sully their beautiful minds.
After printing excerpts of the Red Cross torture report previously, Mark Danner has now published the entire report, every damning detail, along with a companion article about the contents therein. Scott Shane's article in the New York Times highlights the participation of medical personnel:
Medical personnel were deeply involved in the abusive interrogation of terrorist suspects held overseas by the Central Intelligence Agency, including torture, and their participation was a “gross breach of medical ethics,” a long-secret report by the International Committee of the Red Cross concluded.
Based on statements by 14 prisoners who belonged to Al Qaeda and were moved to Guantánamo Bay, Cuba, in late 2006, Red Cross investigators concluded that medical professionals working for the C.I.A. monitored prisoners undergoing waterboarding, apparently to make sure they did not drown. Medical workers were also present when guards confined prisoners in small boxes, shackled their arms to the ceiling, kept them in frigid cells and slammed them repeatedly into walls, the report said.
Facilitating such practices, which the Red Cross described as torture, was a violation of medical ethics even if the medical workers’ intentions had been to prevent death or permanent injury, the report said. But it found that the medical professionals’ role was primarily to support the interrogators, not to protect the prisoners, and that the professionals had “condoned and participated in ill treatment.”
At times, according to the detainees’ accounts, medical workers “gave instructions to interrogators to continue, to adjust or to stop particular methods.”
The description of medical workers studiously monitoring the pulse or oxygen level of a suspect being tortured, or measuring the swelling in another's leg as he is shackled to the ceiling and forced to stand, seems the very banality of evil.
In a separate report released yesterday, military officials were implicated in and aware of torture techniques at Guantanamo, contrary to their own Congressional testimony.
Today Seton Hall Law delivered a report establishing that military officials at the highest levels were aware of the abusive interrogation techniques employed at the detention camp at Guantánamo Bay (GTMO), and misled Congress during testimony. In addition, FBI personnel reported that the information obtained from inhumane interrogations was unreliable.
Professor Mark Denbeaux, Director of the Seton Hall Law Center for Policy and Research, commented on the findings: "Who knew about the torture at GTMO? Turns out they all did. It's not news that the interrogators were torturing and abusing detainees. We've got FBI reports attesting to this. But now we've discovered that the highest levels knew about the torture and abuse, and covered it up.
"Abu Ghraib was the flashpoint and provoked the FBI to formally hand its reports to the DOD, which in turn forced the DOD to respond with what became known as the Schmidt Report. Schmidt's investigation was essentially a whitewash, but, ironically, the abuse was so pervasive that his team turned up still more incidents. To conceal the problems documented by both the FBI and the military, the DOD published an incomplete, sanitized report, culminating in Schmidt testifying before Congress that there was no torture or abuse at GTMO [...]
FBI personnel stationed at GTMO submitted a series of unsolicited reports describing at least 118 improper interrogation techniques: physical harm to the genitals--to a degree punishable by life imprisonment as sexual assault under military law; forced viewings of homosexual pornography; denial of food and water; disorientation techniques such as sleep deprivation; and religious abuse such as forced "satanic baptisms."
The government censored parts of the records, but enough has been made public that it's clear that the witness, a fellow detainee, was being treated weekly for a serious psychological problem and was questioned about whether he had any suicidal thoughts. The witness provided information in the government's case for detaining Aymen Saeed Batarfi, a Yemeni doctor who the government announced last week it would no longer seek to detain.
In a little-noticed ruling last week, Judge Emmet Sullivan found that the witness's testimony in other cases could be challenged as unreliable.
During a hearing last week, Sullivan castigated the government for not turning over the medical records and ordered department lawyers to explain why he shouldn't cite them for contempt of court.
"To hide relevant and exculpatory evidence from counsel and from the court under any circumstances, particularly here where there is no other means to discover this information and where the stakes are so very high . . . is fundamentally unjust, outrageous and will not be tolerated," Sullivan said, according to a transcript of the hearing.
This sickness, with the kangaroo courts and the cover-ups and the implication of more and more officials, will remain as a black cloud over the head of this government if it's not dealt with properly. It is not enough to "look forward." We tortured multiple prisoners with multiple banned techniques, all in the name of "fighting the war on terror," in actuality making us less safe after their eventual disclosure and providing no intelligence value. As Danner notes, this has been going on for years, and in the absence of a ruling - and punishment - for those who ordered this, we will continue to have corrosive and distorting fights over the efficacy of this violation of American and international law.
It is because of the claim that torture protected the US that the many Americans who still nod their heads when they hear Dick Cheney's claims about the necessity for "tough, mean, dirty, nasty" tactics in the war on terror respond to its revelation not by instantly condemning it but instead by asking further questions. For example: Was it necessary? And: Did it work? To these questions the last president and vice-president, who "kept the country safe" for "seven-plus years," respond "yes," and "yes." And though as time passes the numbers of those insisting on asking those questions, and willing to accept those answers, no doubt falls, it remains significant, and would likely grow substantially after another successful attack.
This political fact partly explains why, when it comes to torture, we seem to be a society trapped in a familiar and never-ending drama. For though some of the details provided—and officially confirmed for the first time—in the ICRC report are new, and though the first-person accounts make chilling reading and have undoubted dramatic power, one can't help observing that the broader discussion of torture is by now in its essential outlines nearly five years old, and has become, in its predictably reenacted outrage and defiant denials from various parties, something like a shadow play.
I agree with President Obama that torture hasn't made us safer, but the continued failure to deal with what the Bush Administration has done CONTINUES to cripple our political influence around the world and our moral capability to lead. John Conyers released a report to little fanfare last week called "Reining in the Imperial Presidency" detailing all the lawlessness enacted, the politicization of justice, the assertion of extreme executive power, the assaults on individual liberty, the retribution against critics, the passing of secret law, all of it. And the committee offers 50 recommendations for how to reverse this challenge to Constitutional government. Right at the top are these two:
Congress should establish a Blue Ribbon Commission or similar panel to investigate the broad range of policies of the Bush Administration that were undertaken under claims of unreviewable war powers, including detention, enhanced interrogation, ghosting and black sites, extraordinary rendition, and warrantless domestic surveillance.
The Attorney General should appoint a Special Counsel, or expand the scope of the present investigation into CIA tape destruction, to determine whether there were criminal violations committed pursuant to Bush Administration policies that were undertaken under unreviewable war powers, including enhanced interrogation, extraordinary rendition, and warrantless domestic surveillance.
It's not just about ending these practices. By refusing to investigate them, and even actively invoking claims like the "state secrets privilege" to shield any possibility of a reckoning, the Administration implicates itself. Because they must use the same extreme claims of executive power, in some cases more so, to facilitate the cover-up. As Danner says:
There is a sense in which our society is finally posing that "what should we do" question. That it is doing so only now, after the fact, is a tragedy for the country—and becomes even more damaging as the debate is carried on largely by means of politically driven assertions and leaks. For even as the practice of torture by Americans has withered and died, its potency as a political issue has grown. The issue could not be more important, for it cuts to the basic question of who we are as Americans, and whether our laws and ideals truly guide us in our actions or serve, instead, as a kind of national decoration to be discarded in times of danger. The only way to confront the political power of the issue, and prevent the reappearance of the practice itself, is to take a hard look at the true "empirical evidence of the last five years, hard years," and speak out, clearly and credibly, about what that story really tells.
In failing to wrestle with this, or letting Spain do it for us, we lose ourselves.
Yesterday the Senate Judiciary Committee held a hearing on Patrick Leahy's call for a truth commission to investigate the crimes of the Bush Administration. Obviously the events of the past couple days, with the release of OLC memos that really transformed the concept of democracy in the Bush era, is revitalizing this debate.
Justice Department officials said they might soon release additional opinions on those subjects. But the disclosure of the nine formerly secret documents fueled calls by lawmakers for an independent commission to investigate and make public what the Bush administration did in the global campaign against terrorism.
The chairman of the House Judiciary Committee, Representative John Conyers Jr., Democrat of Michigan, said the revelations, together with the release of new information about the Central Intelligence Agency’s destruction of 92 interrogation videotapes, had underscored the need for a commission that would have the power to subpoena documents and testimony.
The OLC memos are still extraordinary, so horrifying in the picture they paint of executive power that the head of the OLC, Steven Bradbury, felt the need to disavow them near the end of the Bush regime. It's likely that he did so to take the heat off of himself.
The increased calls for a greater public accounting come as the Justice Department’s internal ethics office is preparing to release a report that is expected to criticize sharply members of the Bush legal team who wrote memorandums purporting to provide legal justification for the use of harsh interrogation methods on detainees despite anti-torture laws and treaties, according to department and Congressional officials.
The Office of Professional Responsibility at the Justice Department is examining whether certain political appointees in the department knowingly signed off on an unreasonable interpretation of the law to provide legal cover for a program sought by Bush White House officials.
The report is expected to focus on three former officials of the Office of Legal Counsel: Mr. Yoo, a Berkeley law professor, now on leave at Chapman University, who was the principal author of opinions on national security matters from 2001 to 2003; Jay S. Bybee, who oversaw the counsel’s office during that period and is now a federal appeals court judge; and Steven G. Bradbury, who oversaw the counsel’s office in Mr. Bush’s second term.
Mr. Bradbury wrote two of the opinions released on Monday. Written last October and this January, they broadly repudiated the aggressive theory of virtually unlimited commander-in-chief power at the heart of Mr. Yoo’s memorandums.
But there ought to be no get-out-of-jail-free card for the actions taken as the result of these memos. Glenn Greenwald looks at one of the documents.
The essence of this document was to declare that George Bush had the authority (a) to deploy the U.S. military inside the U.S., (b) directed at foreign nationals and U.S. citizens alike; (c) unconstrained by any Constitutional limits, including those of the First, Fourth and Fifth Amendments. It was nothing less than an explicit decree that, when it comes to Presidential power, the Bill of Rights was suspended, even on U.S. soil and as applied to U.S. citizens. And it wasn't only a decree that existed in theory; this secret proclamation that the Fourth Amendment was inapplicable to what the document calls "domestic military operations" was, among other things, the basis on which Bush ordered the NSA, an arm of the U.S. military, to turn inwards and begin spying -- in secret and with no oversight -- on the electronic communications (telephone calls and emails) of U.S. citizens on U.S. soil.
As Harper's Scott Horton says, "We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship."
John Yoo’s Constitution is unlike any other I have ever seen. It seems to consist of one clause: appointing the President as commander-in-chief. The rest of the Constitution was apparently printed in disappearing ink.
Yoo, who is hiding out in Orange County at Chapman University, admitted in an interview to the OC Register only that his memos "lacked a certain polish," in a profile more concerned with how he's enjoying the beaches and Vietnamese food of Southern California rather than the "hippies, protesters and left-wing activists" of Berkeley. Somehow, he's still teaching law. Jay Bybee, the other major player in the composition of these memos, is a 9th Circuit Appeals Judge in San Francisco. Bruce Ackerman recommends impeachment. More on the memos from Jack Balkin and Anonymous Liberal.
Despite the calls of apologists to the contrary, we have to have a reckoning on this. The previous President, aided by his allies, asserted broad executive powers far outside Constitutional strictures, and the results were illegal wiretapping, torture, extraordinary rendition, indefinite detention, and a series of other crimes against the state and violations practically every amendment in the Bill of Rights as well as international law. There is a school of thought that immunity is needed to uncover the truth, much of which we still do not know, but Sheldon Whitehouse disagrees.
WHITEHOUSE: I think the Speaker is absolutely right. The question of when and whether to grant immunity is a very carefully drawn one. … If you’re giving blanket immunities and preventing prosecutions that could and would and should move forward, then you’ve made a mistake.
“[T]he Speaker is dead right that you don’t want blanket immunities that prevent prosecutions from going forward,” he emphasized, “not without a very thoughtful conversation with the prosecutors themselves.”
But one member of the Judiciary Committee wasn't at the truth commission hearing yesterday - Dianne Feinstein. Through a spokesman, she sidestepped whether or not she supports a commission, saying she “hasn’t seen a proposal." But she is instituting a competing investigation, from her perch at the Senate Intelligence Committee, that is bound to be a whitewash:
The inquiry is aimed at uncovering new information on the origins of the programs as well as scrutinizing how they were executed -- including the conditions at clandestine CIA prison sites and the interrogation regimens used to break Al Qaeda suspects, according to Senate aides familiar with the investigation plans.
Officials said the inquiry was not designed to determine whether CIA officials broke laws. "The purpose here is to do fact-finding in order to learn lessons from the programs and see if there are recommendations to be made for detention and interrogations in the future," said a senior Senate aide, who like others described the plan on condition of anonymity because it had not been made public [...]
The senior aide said that the committee had no short-term plans to hold public hearings, and that it was not clear whether the panel would release its final report to the public [...]
Senate aides declined to say whether the committee would seek new testimony from former CIA Director George J. Tenet or other former top officials who were involved in the creation and management of the programs.
The Senate investigation will examine whether the detention and interrogation operations were carried out in ways that were consistent with the authorities and instructions issued in the aftermath of the Sept. 11 attacks, officials said.
The panel will also look at whether lawmakers were kept fully informed. Sen. Dianne Feinstein (D-Calif.), the chairwoman of the committee, and others have said that the Bush administration improperly withheld information from Congress on the CIA's operations.
This is basically a turf war. Feinstein wants control of the investigation process in her committee, over Patrick Leahy. And she wants the hearings to be private as well as the final report. Emptywheel writes:
Pat Leahy will have an investigation regardless of what DiFi says--and he's going to start it now. So DiFi issues a vaguely formulated leak saying that she's going to cover the CIA's role in torture. And, voila! Now the CIA and DiFi can say try to circumscribe Leahy's investigation. And of course, by doing an investigation that starts with the premise that it is "not designed to determine whether CIA officials broke laws," even while admitting that CIA officers may have gone beyond the "instructions issued in the aftermath of the Sept. 11 attacks," it ensures no accountability even for those who went beyond Cheney's torture regime. And, finally, absolutely no current plans to make public the results, either through public hearings or by releaing a report.
Call DiFi at (202) 224-3841. Thank her for recognizing the importance of understanding the mistakes we made in the past. Remind her that even Pat Roberts' investigation into CIA Iraq intelligence was released publicly. Demand that she meet at least the level of transparency adopted by her Republican predecessors as SSCI Chair.
Agreed. This is too important for it to be done in the secret bowels of official Washington as a "fact-finding mission" yielding a white paper that will wind up collecting dust on a shelf. Feinstein is trying to let criminals off the hook, plain and simple. History tells us that the inevitable return of criminals like this will only be emboldened to go further as a result.
Despite, or in a weird way, because of the troubling return of unitary executive theory in Obama Administration filings in the Al Haramain case, the Justice Department is striving for transparency in releasing many secret OLC memos from the Bush era, as well as the information that the CIA destroyed 92 videotapes of interrogations of terror suspects.
The Justice Department released nine legal opinions showing that, following the Sept. 11, 2001, terrorist attacks, the Bush administration determined that certain constitutional rights would not apply during the coming fight. Within two weeks, government lawyers were already discussing ways to wiretap U.S. conversations without warrants.
The Bush administration eventually abandoned many of the legal conclusions, but the documents themselves had been closely held. By releasing them, President Barack Obama continued a house-cleaning of the previous administration's most contentious policies.
"Too often over the past decade, the fight against terrorism has been viewed as a zero-sum battle with our civil liberties," Attorney General Eric Holder said in a speech a few hours before the documents were released. "Not only is that school of thought misguided, I fear that in actuality it does more harm than good."
The Obama administration also acknowledged in court documents Monday that the CIA destroyed 92 videos involving terror suspects, including interrogations — far more than had been known. Congressional Democrats and other critics have charged that some of the harsh interrogation techniques amounted to torture, a contention President George W. Bush and other Bush officials rejected.
The new administration pledged on Monday to begin turning over documents related to the videos to a federal judge and to make as much information public as possible.
The ACLU has the legal letter acknowledging the destruction of the CIA tapes, and the OLC memos are here. One of the more interesting memos, described by Christy Hardin Smith, is a recent one from October 2008 from the Bush Administration's head of the OLC:
Let me get this straight: we waited all the way to October 6, 2008 -- more than 7 years -- to issue such a memoranda governmentally regarding a fundamental question of posse comitatus? One that the OLC clearly got wrong?
Bradbury goes on to issue a blanket statement that the OLC is not to be used for:
"...broad, hypothetical scenarios involving domestic military contingencies that senior policymakers feared might become a reality in the uncertain wake of the catastrophic attacks of 9/11..."
Which is understandable that there would be hasty errors given the circumstances but, again, why did it take more than 7 years to correct their misperceptions?
I have a theory. The Bush Administration knew these were extra-legal actions, and so to cover their behinds they had their OLC chief make them all inoperative just before they left. I don't think it necessarily would make it harder to prosecute, but considering that the incoming Administration wants to "look forward and not backward," it would certainly push them to conclude that the worst is behind us and at least these theories have been rejected.
Except they have not been rejected. In Al Haramain the Obama White House is still using them. Look at this John Yoo memo on FISA, where he claims that domestic searches and wiretaps would not violate the Fourth Amendment as long as the President is combating terrorism, or the one where Yoo argues that First Amendment speech and press rights may have to be suppressed to protect the nation, and ask yourself what Obama is hiding. Ask yourself why he's relying on similar theories of executive power to hide the truth.
This is why we need a Congress with the insistence to uphold their oversight functions and use the tendency for sunlight on the part of the Justice Department to deliver a full investigation into the crimes of the Bush era. I agree with Nancy Pelosi that prosecutions should result from any violations of federal statute found by those investigations. However, even a Truth Commission would be powerful and paradigm-shifting.
Spearheading Senate efforts to establish a torture commission is Rhode Island Democrat Sheldon Whitehouse. As a member of both the Judiciary Committee and the Intelligence Committee, Whitehouse is privy to information about interrogations he can't yet share. Still, regarding a potential torture commission, he told Salon, "I am convinced it is going to happen." In fact, his fervor on the issue was palpable. When asked if there is a lot the public still does not know about these issues during the Bush administration, his eyes grew large and he nodded slowly. "Stay on this," he said. "This is going to be big."
"We may be faced with the prospect of looking at horror in our own country's deeds." Let's hear about all of it. And let's let the current Administration know that we will not abide by the same horror from their conduct, no matter how noble the intention.
A former British resident held at Guantanamo Bay, Cuba, will be flown home early next week, marking the first transfer of a Guantanamo detainee by the Obama administration, according to a source involved in the process, who spoke on the condition of anonymity because he is not authorized to speak on the subject.
The British government had pressed the new administration to make the case of Binyam Mohammed a priority. The release of the Ethiopian native could come as early as Monday, the day Attorney General Eric H. Holder Jr. is scheduled to visit the military facility with top Justice Department officials who are leading a review of the cases of the approximately 245 detainees held there [...]
Mohammed was recently visited by British officials, including a police physician who persuaded him to end a hunger strike. Officials in Britain have said Mohammed faces no charges there and will be released upon his return.
The question is whether there will be a gag order on Mohammed, like David Hicks, or whether he will be allowed to tell his story in his own words, the way Mohamed Barag Fashmilah did to devastating effect in the Huffington Post yesterday. Either way, Bashmilah and Mohammed are symbols of the same disease - a failure to account for the past and unburden the sins of the Bush era.
My physical symptoms are made worse by the anxiety caused by never knowing where I was held, and not having any form of acknowledgment that I was disappeared and tortured by the U.S. government.
I believe that acknowledgment is the first step toward accounting for a wrongdoing. The American public needs to face what has happened to those of us who were disappeared and mistreated in the name of their national security, demand accountability for those who committed torture and other crimes, and acknowledge the suffering of those who became victims. Today, a group of concerned Americans called on President Obama to take the first steps to do just that, by demanding that he establish an independent commission of inquiry into the treatment of detainees in the "War on Terror."
President Obama himself recently said that "democracy requires accountability and accountability requires transparency." If he establishes this commission, it would break the silence about what has happened and signal a real commitment not only to changing the practices of the past but also to ensuring that they do not happen again. Both the American public and the victims of these past policies need to understand what the CIA did in the name of U.S. national security. We need to find out where we were all held and who is still missing. And we need justice for the crimes that were committed in violation of our most basic human rights -- rights the United States has always claimed to uphold and defend. President Obama's recent order to the CIA to shut down its secret prisons was a significant step in the right direction, but it did not resolve the unfinished business of establishing accountability and restoring transparency.
The American public deserves to know what was done to people like me -- and I deserve to know why I lost nineteen months of my life -- all in the name of protecting their security. It gives me faith to see that Americans are standing up for my rights and calling for the truth to be exposed. It is my hope that the President will not only establish this commission, but that he will also direct the relevant authorities to investigate and prosecute those who broke American laws in ordering the torture and disappearance of people like me. Truth and justice are not in opposition; both are necessary, and both are the right of all Americans and the victims harmed in their name.
Absolutely. At the very, very least, we need Patrick Leahy's Truth Commission so we can discover the truth and build reforms. However, the Church Commission didn't work to stop a rogue President from attacking the rule of law again. So we need to have real accountability in the form of prosecutions, not clown shows where the likes of Alberto Gonzales "cooperate" the way he cooperated with the Senate Judiciary Committee as Attorney General ("I don't recall, I don't recall.") If the monsters aren't shown the consequences of their wrongs, they will return to do more damage.
...the flip side of the Mohammed release is the terrible case of the Uighurs, who have done nothing wrong but who are not able to get released. An appeals court blocked their transfer to the United States this week.
Stupid Americans, Believing In Constitutional Principles
The standard line from the Village is that we cannot have investigations of Bush Administration officials for crimes like torture or illegal wiretapping because that would take the country through a painful cycle and tear the very fabric of the nation apart and this would be just too mortal a blow to a nation that needs to bind up its wounds. If you actually ask those people these brave Villagers are trying to protect, however, they'd say "Yeah, we're cool with it."
Even as Americans struggle with two wars and an economy in tatters, a USA TODAY/Gallup Poll finds majorities in favor of investigating some of the thorniest unfinished business from the Bush administration: Whether its tactics in the "war on terror" broke the law.
Close to two-thirds of those surveyed said there should be investigations into allegations that the Bush team used torture to interrogate terrorism suspects and its program of wiretapping U.S. citizens without getting warrants. Almost four in 10 favor criminal investigations and about a quarter want investigations without criminal charges. One-third said they want nothing to be done.
Even more people want action on alleged attempts by the Bush team to use the Justice Department for political purposes. Four in 10 favored a criminal probe, three in 10 an independent panel, and 25% neither.
Apparently the delicate sensibilities of "the people," as distilled by those in Washington, are not quite so delicate.
The real problem, of course, is the education system. We teach children the preamble to the Constitution and the Declaration of Independence, tell them to remember that all men are created equal and that no man is above the law, and then they actually start to BELIEVE THAT? Somebody change out the textbooks.
If you're part of this nation composed of 2/3 dirty hippies, you might want to take action at Patrick Leahy's new site Bush Truth Commission. A truth and reconciliation commission is really the very least we can do to get the full extent of the crimes out into the light of day. If the President believes the Villager pressure that this will rip the nation asunder and be just a terrible distraction, there's no reason the Congress has to follow. You can watch Sen. Leahy's remarks at Georgetown University in favor of a Truth Commission here.
There is no excuse for the Obama Justice Department invoking the state secrets privilege to get a court case on extraordinary rendition thrown out. Men who were illegally kidnapped, flown to Guantanamo and tortured sued the government and the owner of the aircraft used in the rendition, and Obama's officials basically said that the whole matter was a secret and cannot be adjudicated. Here's Ben Wizner of the ACLU, who was one of the lawyers on the case:
We are shocked and deeply disappointed that the Justice Department has chosen to continue the Bush administration’s practice of dodging judicial scrutiny of extraordinary rendition and torture. This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course. Now we must hope that the court will assert its independence by rejecting the government’s false claims of state secrets and allowing the victims of torture and rendition their day in court.
What makes this particularly appalling and inexcusable is that Senate Democrats had long vehemently opposed the use of the "state secrets" privilege in exactly the way that the Bush administration used it in this case, even sponsoring legislation to limits its use and scope. Yet here is Obama, the very first chance he gets, invoking exactly this doctrine in its most expansive and abusive form to prevent torture victims even from having their day in court, on the ground that national security will be jeopardized if courts examine the Bush administration's rendition and torture programs -- even though (a) the rendition and torture programs have been written about extensively in the public record; (b) numerous other countries have investigated exactly these allegations; and (c) other countries have provided judicial forums in which these same victims could obtain relief.
I've been as vigorous a proponent as anyone for waiting to see what Obama does before reaching conclusions about his presidency, but this is a very real and substantial act, and it's hard to disagree with what ACLU Executive Director Anthony Romero said today:
"Eric Holder’s Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government. This is not change. This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again."
As Greenwald goes on to note, Obama has claimed to end this practice of rendition, and yet is invoking the state secrets privilege because revealing the scope of the program would degrade CIA operations - operations that he has said no longer exist. Those statements aren't compatible, and one can only conclude that rendition is continuing, perhaps in a kinder and gentler way. Or more to the point, the Administration doesn't want any consequences for the crimes of the past, reserving the right for future Presidents to absolve them of crimes in the future.
“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.
“No, your honor,” Mr. Letter replied.
“The change in administration has no bearing?” she asked.
“No, your honor,” he said once more. The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.
Just to bring in some perspective, let's add to this what has been alleged to have happened to one of the five Brits suing the government in this case, Binyam Mohamed. The Telegraph UK reported over the weekend:
Material in a CIA dossier on Mr Mohamed that was blacked out by High Court judges contained details of how British intelligence officers supplied information to his captors and contributed questions while he was brutally tortured, The Sunday Telegraph has learned.
Intelligence sources have revealed that spy chiefs put pressure on Mr Miliband to do nothing that would leave serving MI6 officers open to prosecution, or to jeopardise relations with the CIA, which is passing them "top notch" information on British terrorist suspects from its own informers in Britain.
Mr Mohamed, 30, an Ethiopian, was granted refugee status in Britain in 1994. He was picked up in Pakistan in 2002 on suspicion of involvement in terrorism, rendered to Morocco and Afghanistan, tortured and then sent to Guantanamo Bay in 2004. All terror charges against him were dropped last year.
The 25 lines edited out of the court papers contained details of how Mr Mohamed's genitals were sliced with a scalpel and other torture methods so extreme that waterboarding, the controversial technique of simulated drowning, "is very far down the list of things they did," the official said.
Another source familiar with the case said: "British intelligence officers knew about the torture and didn't do anything about it. They supplied information to the Americans and the Moroccans. They supplied questions, they supplied photographs. There is evidence of all of that."
It was done in our name, using our tax dollars, and now this new Administration, which has spoken very specifically and on the record about the pernicious nature of the state secrets privilege, is now invoking it the same way George Bush had, to avoid accountability. Applying state secrets to get entire court cases thrown out is just the most extreme version of this. Russ Feingold has said:
When the executive branch invokes the state secrets privilege to shut down lawsuits, hides its programs behind secret OLC opinions, over-classifies information to avoid public disclosure, and interprets the Freedom of Information Act as an information withholding statute, it shuts down all of the means to detect and respond to its abuses of the rule of law – whether those abuses involve torture, domestic spying, or the firing of U.S. Attorneys for partisan gain.
Leon Panetta is on the record saying there will be no prosecutions for CIA officers who implemented the crimes of the Bush era. Last night, Obama responded to a question by the Huffington Post's Sam Stein about the need for a truth and reconciliation commission, just so that we would know the extent of the lawbreaking of the past eight years, by dodging the question, saying that if there were "clear instances of wrongdoing" prosecutions should occur, he would be more inclined to look forward and not backward. And we even have evidence that Obama is backsliding on the closure of Guantanamo:
President Obama assured relatives and victims of the Sept. 11, 2001, attacks and the bombing of the USS Cole that he is keeping an open mind about how to handle the approximately 245 detainees held at the U.S. military prison at Guantanamo Bay, according to participants in an hour-long meeting yesterday at the White House.
The president met with about 40 family members and victims, who hold different views on his decision to close the prison in Cuba within a year. The exchange, which was sometimes passionate but never acrimonious, left some who were deeply skeptical of the administration's decision to suspend military commissions at Guantanamo Bay satisfied that the president has not yet decided to abolish the current system of prosecuting suspected terrorists.
Obama told the group that he was only hitting the "pause button" when he sought the suspension of proceedings against 21 detainees, including Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11 attacks. And he assured the group that he wants the swift prosecution of those responsible for the terrorist attacks and their facilitators.
This is the rot that comes from a lack of accountability. In covering up someone else's crimes, you inevitably use their methods, which are crimes themselves. They maintain an architecture which can easily be pulled out to cover up your OWN crimes. And it violently damages the rule of law and the ability for Americans to believe in their government.
The Obama Administration is going to have to set a bright line on national security issues. I believe there will be plenty inside the national security and intelligence communities lying in wait to undermine him, so he'd better get out in front of this stuff. The illegal spying program, which he eventually supported and which is subject to several lawsuits by outside grouos, will be an early test.
“I don’t think President-elect Obama embraces Dick Cheney’s theory of unfettered presidential power,” said Jon B. Eisenberg, a San Francisco lawyer involved in one lawsuit against the wiretapping program. “So if President-elect Obama doesn’t embrace that theory, one would expect a change in the direction of how the new administration handles this litigation.”
But other legal and political analysts suggest that Mr. Obama, as president, may be more willing to accept the broadened presidential powers that he once condemned as a candidate, particularly since Congress has approved expanded surveillance powers for the government.
We've learned plenty more about the program since the passage of the FISA Amendments Act, that NSA personnel in Georgia were listening to and recording tens of millions of communications between NGOs and even military members. It's an unworkable, illegal waste of a system that needs to be liquefied, but I'm not optimistic that a chief executive would willingly give up power. We have to push him, and push the Congress to deliver investigations.
On the issue of charges for those who violated federal statute and international law through torture and detainee abuse, don't expect that to happen anytime soon.
WASHINGTON – Barack Obama's incoming administration is unlikely to bring criminal charges against government officials who authorized or engaged in harsh interrogations of suspected terrorists during the George W. Bush presidency. Obama, who has criticized the use of torture, is being urged by some constitutional scholars and human rights groups to investigate possible war crimes by the Bush administration.
Two Obama advisers said there's little — if any — chance that the incoming president's Justice Department will go after anyone involved in authorizing or carrying out interrogations that provoked worldwide outrage.
Now, with respect to this, Obama is a little constrained by the Detainee Treatment Act, which makes it fairly impossible for anyone to be prosecuted for torture:
In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities.
The Military Commissions Act protects those who may have directed or authorized torture, although some feel there is a pathway to justice there. This is how official Washington buries the bodies - they make it impossible to seek justice.
At this point, the best practice would be to convene a Truth and Reconciliation Commission to get the facts revealed to the wider world. Otherwise, Bush Administration flacks can continue to spin their tales that they followed the law. Obama does seem prepared to do a version of that.
Obama has committed to reviewing interrogations on al-Qaida and other terror suspects. After he takes office in January, Obama is expected to create a panel modeled after the 9/11 Commission to study interrogations, including those using waterboarding and other tactics that critics call torture. The panel's findings would be used to ensure that future interrogations are undisputedly legal.
I hope that expands beyond just interrogation techniques to include who was detained and for what evidence. The stories of child soldiers at Guantanamo are sickening.
I've said often that a failure to act is a de facto pardon for war crimes. I respect any care and attention that would be put into getting the policies right going forward, but denying justice makes a mockery of the rule of law.
...Melvin Goodman has more, and a lot of it is disturbing.
President-elect Barack Obama is sending conflicting signals on whether he intends to change the bankrupt culture of Washington's intelligence community and to introduce genuine reform to the Central Intelligence Agency.
He appears to be ready to remove the top two intelligence officials, Director of National Intelligence Mike McConnell and CIA Director Michael V. Hayden - both retired general officers - which suggests Mr. Obama recognizes the need to change the military culture of the intelligence community. But he also has placed the intelligence transition process in the hands of two senior cronies of former CIA Director George J. Tenet: John O. Brennan and Jami A. Miscik, who were actively engaged in implementing and defending the CIA's corrupt activities during the Bush presidency.
...Mithras makes some excellent points here. The combination of Congress writing immunity into most of the most outrageous conduct of the Bush Administration and top Democrats' complicity makes it exceedingly unlikely that Obama would be willing to essentially give up his entire first term working on putting everyone in jail. I think he gets overly broad in indicting liberal bloggers for having poor political sense, but basically this is the problem - more so when you have a natural conciliator leading the party. There's room for public pressure around a fact-finding commission, however.
Digby mentioned yesterday the video of Omar Khadr, the first we have of an interrogation at Guantanamo, sobbing uncontrollably as he attempts to tell his story to Canadian investigators. The kid is 16 and he's clearly on the edge of a nervous breakdown.
This is only the most recent in what is now a mountain of information on torture that has slowly seeped out over the past year. Just yesterday Osama bin Laden's driver Ahmed Hamdan discussed his coercive treatment in a Guantanamo military commission. And Jane Mayer's much-anticipated book on torture, rendition, and the policies of the Bush Administration has already revealed enough information to fill several stories, including the news that the CIA knew that significant numbers of prisoners captured "on the battlefield" were innocent of any charges, that the Red Cross had secret knowledge of torture that they wrote up in a classified report to the CIA, which incriminated top Administration officials in war crimes, and much more. Mayer's book, ably reviewed by Tim Rutten, is an account of the battle inside the White House as much as the battle around the world, with the stories of heroes and patriots who tried to preserve American ideals by resisting efforts to rewrite the rules of interrogation and the treatment of prisoners, and their opponents, mostly in the Vice President's office, who stymied them. Anyone who questioned the program, like the Inspector General of the CIA John Helgerson, who in 2004 wrote a very serious report alleging war crimes, mistreatment and homicide, and who received personal visits from Dick Cheney thereafter, was shut down.
...the White House was relying on opinions from John Yoo and other authoritarian ideologues in the Office of Legal Counsel who secretly told the president and vice president that they enjoyed inherent powers to overturn any law restraining surveillance, searches and seizures within the United States. As one such memo said, "The government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties. We think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection."
Mayer does a superb job of describing how the trauma of 9/11 all but unhinged Bush and Cheney and predisposed the chief executive to embrace the ready-made unitary executive theory of presidential power, which the vice president and his chief aide, David Addington, had come to Washington prepared to promote. In the opinion of the late historian Arthur Schlesinger, "the Bush administration's extralegal counterterrorism program presented the most dramatic, sustained and radical challenge to the rule of law in American history."
Those who have been paying attention know the consequences of this. Much of the torture and abuse was subjected to people who had no intelligence value and were never credibly charged with any crime. The methods were based on decades-old survival techniques produced by the Navy to resist torture, and a manual from the Chinese that used torture to elicit false confessions. They used psychologists to develop a program of "learned helplessness", reverse-engineered from the SERE techniques. In the end, not one terror suspect has been convicted of anything since 9/11. The "intelligence" gained from the likes of Abu Zubaydah and Khalid Sheikh Mohammed was of the wild goose chase variety. Evidence of torture inflamed the Islamic world and became a recruitment poster for Al Qaeda. And on and on. There's more from Dan Froomkin, Andrew Bacevich, Frank Rich and Daniel Larison.
And any effort to stop this, even in the face of overwhelming evidence of its failure, was squelched, in a bipartisan fashion, because of politicians who wanted to cover their tracks. As Glenn Greenwald puts it:
This is what a country becomes when it decides that it will not live under the rule of law, when it communicates to its political leaders that they are free to do whatever they want -- including breaking our laws -- and there will be no consequences. There are two choices and only two choices for every country -- live under the rule of law or live under the rule of men. We've collectively decided that our most powerful political leaders are not bound by our laws -- that when they break the law, there will be no consequences. We've thus become a country which lives under the proverbial "rule of men" -- that is literally true, with no hyperbole needed -- and Mayer's revelations are nothing more than the inevitable by-product of that choice [...]
If the rule of law doesn't constrain the actions of government officials, then nothing will. Continuous revelations of serious government lawbreaking have led not to investigations or punishment but to retroactive immunity and concealment of the crimes. Judicial findings of illegal government behavior have led to Congressional action to protect the lawbreakers. The Detainee Treatment Act. The Military Commissions Act. The Protect America Act. The FISA Amendments Act. They're all rooted in the same premise: that our highest government leaders have the power to ignore our laws with impunity, and when they're caught, they should be immunized and protected, not punished.
Yes, because the torture program itself, in a sense, was a method to cover up an earlier crime. In the months before 9/11 the White House was completely disinterested in terrorism, dismissing the concerns of the intelligence community and neglecting to address the threat. After 9/11, they swung completely in the other direction, and the programs of torture and indefinite detention and surveillance, which were largely off the shelf from long into, were put into action to prove to the nation that something was being done, that there was a manner of payback being extracted.
After interviewing hundreds of sources in and around the Bush White House, I think it is clear that many of the legal steps taken by the so-called “War Council” were less a “New Paradigm,” as Alberto Gonzales dubbed it, than an old political wish list, consisting of grievances that Cheney and his legal adviser, David Addington, had been compiling for decades. Cheney in particular had been chafing at the post-Watergate reforms, and had longed to restore the executive branch powers Nixon had assumed, constituting what historian Arthur Schlesinger Jr. called “the Imperial Presidency.”
Before September 11, 2001, these extreme political positions would not have stood a change of being instituted—they would never have survived democratic scrutiny. But by September 12, 2001, President Bush and Vice President Cheney were extraordinarily empowered. Political opposition evaporated as critics feared being labeled anti-patriotic or worse. It’s a familiar dynamic in American history—not unlike the shameful abridgement of civil liberties represented by FDR’s internment of Americans of Japanese ancestry. One of the strongest quotes in the book, I think, comes from Philip Zelikow, the former executive director of the 9/11 Commission, former counselor to Secretary of State Condi Rice, and a historian who teaches at the University of Virginia. He suggests in time that America’s descent into torture will be viewed like the internment of the Japanese, because they happened for similar reasons. As he puts it, “Fear and anxiety were exploited by zealots and fools.”
In an interview with "Fresh Air," Jane Mayer talked about how Bush and Cheney were receiving raw, unfilitered intelligence after 9/11, lurid tales of nuclear attacks on the country and massive terrorist bombings, most of it bullshit, but so vivid as to justify, in their minds, whatever depravity they ended up putting into practice. One claim in the book is that Cheney thought he had taken a lethal dose of anthrax, which contributed to his insistence on tough tactics. Incidentally, it was based entirely on a false alarm in the White House Situation Room. That didn't stop Cheney's paranoia. He was completely consumed with this stuff, and I'm sure he believes what he did was necessary to protect the country.
But that's not a legal justification. And no matter how many times John Yoo and David Addington try to rewrite the history of the Constitution, what has been done violates federal law, international treaties and war crimes statutes. In a just world, as Jerrold Nadler said yesterday, Bush and Cheney would be impeached. But this goes well beyond removal from office. This is about indictment for murder and war crimes, by definition. In case you were wondering, however, here is the official Village pronouncement about what we should do with the fact that our leaders, in a complete breakdown of the rule of law, have tortured, detained without charges, and murdered:
Dark deeds have been conducted in the name of the United States government in recent years: the gruesome, late-night circus at Abu Ghraib, the beating to death of captives in Afghanistan, and the officially sanctioned waterboarding and brutalization of high-value Qaeda prisoners. Now demands are growing for senior administration officials to be held accountable and punished. Congressional liberals, human-rights groups and other activists are urging a criminal investigation into high-level “war crimes,” including the Bush administration’s approval of interrogation methods considered by many to be torture.
It’s a bad idea. In fact, President George W. Bush ought to pardon any official from cabinet secretary on down who might plausibly face prosecution for interrogation methods approved by administration lawyers.
That's right. Just shut it down. Those mean old hippies are just too worked up about all of this stuff. We need to just move on and heal the nation's partisan wounds and forget about all this "accountability" nonsense.
As Greenwald said, this is what happens to a country when there is a removal of the rule of law, when the powerful can absolve themselves of blame and the media courtiers serve to protect them. There is no question that top Democrats were briefed about this program, if not the full extent of it. They absolutely voted to immunize any Administration official from prosecution in the Military Commissions Act (funny how "immunity" keeps coming up as a theme of Bush-led legislative initiatives). They want to pardon themselves by vowing never to bring up the word "indictment" in polite company, so leaders of all political stripes can whistle and laugh at Washington cocktail parties at the end of empire.
This "Truth Commission" thing is taking hold throughout the Village, and I understand the impulse to an extent, but it's not like the parties who would be pardoned have even acknowledged any wrongdoing. They're still asserting unitary executive powers, and they're still winning battles in the courts, so why would you instinctively want to pardon people who believe they've done nothing wrong?
President Bush has the legal power to order the indefinite military detentions of civilians captured in the United States, the federal appeals court in Richmond, Va., ruled on Tuesday in a fractured 5-to-4 decision.
The same court ruled that this prisoner has the right to an additional habeas hearing, and additional habeas hearings have been ordered by other judges. But read that above sentence. Indefinite military detentions of civilians captured inside the United States. Why would anyone submit to a Truth Commission when they're winning.
But the real reason I can't abide by a Truth Commission any more, not after the slow drip of illegalities over the last few years, is because of this aspect of the Village mindset. Bradrocket says it best:
"A criminal investigation would only hinder efforts to determine the truth, and preclude any apologies. It would spur those who know the most to take the Fifth. Any prosecutions would also touch off years of partisan warfare."
And this, my friends, is the absolute nightmare of the Village Mindset: years of partisan warfare. Why do evil people like George W. Bush and Dick Cheney feel they can simply break the law with reckless abandon? Because they know that modern American political culture simply does not believe in accountability for its political class. They know that in the end, they’re part of the same Villager club of Special People who are too powerful and too privileged to ever face any consequences for their actions. Prosecute government officials for state-sanctioned torture?? How uncouth!
And that's the racket in Washington. Accountability is just a word people throw around.
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