The New Rendition

In addition to the other goodies, the release of documents describing the CIA's involvement in Bush-era war on terror programs includes a shocking look at "extraordinary rendition":

The CIA’s lurid description of rendition — which hasn’t yet been reported — describes in clinical detail a process where the detainee is “securely shackled” before being “deprived of sight and sound through the use of blindfolds, earmuffs, and hoods” enroute to a “Black Site.” His “head and face are shaved” and a series of photos are taken “while nude.”

The description of rendition is contained in a document that the ACLU obtained as part of its big FOIA request and posted online late last night. It’s an 18-page fax from the CIA to the Department of Justice in December 2004, and looks like a response to a request by Justice for more info about the CIA’s treatment of “high value detainees,” or HVDs.

The document says the CIA’s rendition procedure is designed to ensure that the capture of a HVD helps create a “state of learned helplessness and dependence” that will facilitate the interrogation process.

The description of “rendition” begins on page three of the document, and describes the process this way:

a. The HVD is flown to a Black Site. A medical examination is conducted prior to the flight. During the flight, the detainee is securely shackled and is deprived of sight and sound through the use of blindfolds, earmuffs, and hoods.

There is no interaction with the HVD during this rendition movement except for periodic, discreet assessments by the on-board medical officer.

b. Upon arrival at the destination airfield, the HVD is moved to the Black Site under the same conditions and using appropriate security procedures.

The procedures, according to the memo, have a dramatic impact on the detainee. It says the process “creates significant apprehension” in the detainee “because of the enormity and suddenness of the change in environment, the uncertainty about what will happen next, and the potential dread” the detainee “might have of U.S. custody.”

What's described is basically the total breakdown of the individual. They mean to condition the detainee into a state of helplessness, through a variety of techniques, including sleep deprivation, slapping, "walling," stress positions, water dousing, and other things, which when delivered in tandem has been identified as a form of torture.

And we're still basically doing this, though not to our own black sites but third-party countries.

The Obama administration will continue the Bush administration’s practice of sending terrorism suspects to third countries for detention and interrogation, but pledges to closely monitor their treatment to ensure that they are not tortured, administration officials said Monday.

Human rights advocates condemned the decision, saying that continuing the practice, known as rendition, would still allow the transfer of prisoners to countries with a history of torture. They said that promises from other countries of humane treatment, called “diplomatic assurances,” were no protection against abuse.

“It is extremely disappointing that the Obama administration is continuing the Bush administration practice of relying on diplomatic assurances, which have been proven completely ineffective in preventing torture,” said Amrit Singh, a lawyer with the American Civil Liberties Union, who tracked rendition cases under President George W. Bush.

Asking the countries pretty please not to torture (with a wink and a nod attached, I'm sure) is just simply unacceptable. I give leeway when a prisoner is taken into custody and to a trial, but kidnapping people with insufficient evidence and handing them to countries known to torture so we don't have to get our hands bloody does not play. It continues the dispiriting legacy of the Obama Administration with respect to civil liberties that only gets occasionally disrupted with better news.

White House Rejected On State Secrets

Russ Feingold released a rule of law report card today, judging the Administration's efforts in restoring core Constitutional principles about justice and executive power. Feingold gave Obama generally good marks, but saved his greatest ire for the Administration's continuing use of the state secrets privilege.

Recommendation (State Secrets): "The new administration should conduct a review of pending cases in which the state secrets privilege has been invoked to assess whether the invocation was proper. It should also support legislative efforts, such as the State Secrets Protection Act (S. 2533/H.R. 5607), to allow more meaningful judicial scrutiny when the privilege is invoked."

Action: The Obama administration has invoked the state secrets privilege in three cases in the first 100 days -- Al Haramain Islamic Foundation v. Obama, Mohammed v. Jeppesen Dataplan, and Jewel v. NSA.

In Al Haramain, the Obama administration reinvoked the privilege in a case originally filed against the Bush administration in which the Al Haramain foundation, whose American branch is based on Oregon, alleged that the Bush administration authorized warrantless wiretaps. In Mohammed v. Jeppesen Dataplan, five individuals once held at Guantanamo Bay prison are accusing Jeppesen Dataplan, a subsidiary of Boeing, of providing logistical support for their “extraordinary rendition” to a foreign country where they were allegedly tortured. In Jewel v. NSA, the Electronic Frontier Foundation is suing the National Security Agency on behalf of AT&T customers for alleged illegal wiretapping surveillance. After Congress granted retroactive immunity to the telecom companies that allegedly participated in the Bush administration’s warrantless wiretapping program, cases in which the government is the defendant are the only legal avenues remaining to potentially test the legality of that program.

Senator Feingold has joined Senators Patrick Leahy, Arlen Specter, Edward Kennedy and others in introducing the State Secrets Protection Act, a bill to provide guidance to federal courts considering cases in which the government has asserted the state secrets privilege. The Obama administration has yet to take a position on the legislation.

Attorney General Holder has indicated that a complete review of all cases in which the state secrets privilege was asserted by the Bush administration is under way and that he hopes to make the result of that review public. Only the glimmer of hope offered by that ongoing review saves the Obama administration from a failing grade on this recommendation.

Today, the 9th Circuit appellate court agreed with Feingold and dealt a rebuke to the efforts to circumvent the rule of law by putting executive power grabs, in this case the Bush Administration's extraordinary rendition program in the Jeppesen case, behind a state secrets firewall:

Today, in a 26-page ruling (.pdf), the appellate court resoundingly rejected the Bush/Obama position, holding that the "state secrets" privilege -- except in extremely rare circumstances not applicable here -- does not entitle the Government to demand dismissal of an entire lawsuit based on the assertion that the "subject matter" of the lawsuit is a state secret. Instead, the privilege only allows the Government to make specific claims of secrecy with regard to specific documents and other facts -- exactly how the privilege was virtually always used before the Bush and Obama DOJs sought to expand it into a vast weapon of immunity from all lawsuits challenging the legality of any executive branch program relating to national security.

In rejecting this radical secrecy theory, the court emphasized how the Bush/Obama doctrine, if accepted, would essentially place the President above and beyond the rule of law.

The court wrote, "According to the government's theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands of the limits of the law." And this, basically, is where the "look forward but not backward" construction totally breaks down. The law requires scrutiny into official actions taken by the government and puts no limits on them for the sake of comity or bipartisanship. The law sees no Democrat or Republican, only the contours of the law. That was true when George W. Bush said that "In our country, when there's an allegation of abuse ... there will be a full investigation, and justice will be delivered," and that "War crimes will be prosecuted, war criminals will be punished and it will be no defense to say, 'I was just following orders,'" and it's just as true today. The power of the state secrets privilege is the power to subvert the belief that no one is above the law by offering the executive branch a tool to block investigation by the other two branches. It is the tool of a cover-up and enables the rampant abuse and lawbreaking that can then be papered over.

The Obama DoJ appealed the ruling on Bagram detainees' habeas rights, and will probably appeal this ruling as well, and we will have to await the ruling of the Supreme Court before determining whether or not we have fully eliminated the most dangerous aspects of the state secrets privilege, or at least the passage of the State Secrets Protection Act by Feingold, America's Next Top Democrat Arlen Specter and the Congress. But as Glenn notes:

...in the meantime, the case will return to the District Court for a document-by-document assessment of what is and is not truly "secret" (and the court today held that a mere decision by the President to classify certain documents is insufficient; the court is required to exercise independent judgment as to whether secrecy is truly warranted). Finally, these 5 torture victims will have their day in court.

And hopefully, not just the victims but the perpetrators will have their day in court as well.

...I maintain that the efforts to get the White House to restore the rule of law will be aided by placing Dawn Johnsen as head of the Office of Legal Counsel, and those efforts got a major boost today when Richard Lugar announced his support. If Specter and Ben Nelson, who are opposed, vote for cloture, I think this ensures her passage.

Binyam Mohammed Going Home

This is the least we can do.

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.

Binyam Mohammed and The Need For Justice

Glenn Greenwald has the sordid details of the Binyan Mohammed case, which are causing a stir in Britain and around the world but barely a ripple here. Here's his ultimate summary:

So, to recap: first, the U.S. abducted Mohamed and refused to provide him with any access to lawyers or the outside world. Then -- with no due process afforded -- we shipped him around for the next couple of years to various countries that are the most notorious practitioners of torture, where agents of those countries and the CIA jointly conducted interrogations by brutally torturing him. Then, once he was broken beyond the point of return, we shipped him off to Guantanamo.

After six years in detention, we finally charged him with crimes in a Guantanamo military commission -- based on confessions we extracted from him -- but refused to provide him with the exculpatory evidence showing that those confessions were extracted by torture, even though, as the High Court noted:

"For several centuries the common law has excluded evidence obtained by cruel, inhuman or degrading treatment; it cannot be used to secure a conviction."

We then threatened Britain that they had better keep the facts surrounding the torture concealed from the world or else we would no longer notify them of terrorist threats aimed at them. And finally, when Mohamed sued in American courts over the rendition and torture he suffered, the U.S. Government -- first the Bush administration and then the Obama administration -- insisted that courts must not allow him a day in court because any discussion of what was done to him was a "state secret" and any disclosure at all would harm national security.

One thing that's missing, notable if only for its unbelievable nature, is that Mohammed was imprisoned as a terrorist after confessing to reading a satirical article in a magazine, written by noted terrorist Barbara Ehrenreich, about how to make an H-bomb. Really.

There was a wild claim a week or so ago that the CIA was holding the torture information from President Obama, which is absurd considering that he has unilateral ability to classify and declassify documents (unless they're protecting him from criminal liability). While some US lawmakers are demanding that the evidence be shown, and others are trying to get the State Secrets Protection Act revived so that the Administration cannot hide behind national security any longer, ultimately we're still stuck with a group of government officials putting self-interest above the rule of law:

One of the many things that bothered me about the Obama administration's invocation of the State Secrets privilege in this case was the apparent indifference to justice. It seemed to be all about what was convenient for the government, and not at all about allowing people who allege horrific treatment at our hands to have their day in court. I still hate the invocation of the State Secrets privilege. And I do not for a moment think that releasing Binyam Mohamed constitutes justice in his case, let alone in the cases of the other plaintiffs. But it is something beyond blank indifference. I suppose it says something about how low my expectations are that that matters to me.

(As Hilzoy makes reference to, is does look like Mohammed may actually be released shortly.)

Ultimately, this is what the Administration is throwing away by blocking accountability, while parroting the talk of how we value the law in America and we hold no man above it. An international group of judges have made their pronouncement on what this evasion of responsibility does to our moral standing and values, and it's a powerful statement:

"We have been shocked by the damage done over the past seven years by excessive or abusive counterterrorism measures in a wide range of countries around the world," said Arthur Chaskalson, a member of the International Commission of Jurists, in a statement announcing results of a three-year study of counterterrorism measures since the Sept. 11, 2001, attacks.

"Many governments, ignoring the lessons of history, have allowed themselves to be rushed into hasty responses to terrorism that have undermined cherished values and violated human rights,'' said Chaskalson, a former chief justice of South Africa.

"It would be better that the government recognized that there are risks -- rather than frightening people in order to be able to pass laws which restrict civil liberties, precisely one of the objects of terrorism -- that we live in fear and under a police state," said Stella Rimington, former head of MI5, the domestic intelligence-gathering agency.

None of this changes unless we recognize that crimes were committed and that they must be adjudicated, with those held responsible brought to account. Otherwise, the cancer will metastasize with another President in another era and it will come back worse than before. In addition, continuing to ignore treaty obligations and flout international law while demanding that other nations be held to that same standard is crippling for American legitimacy. Indeed, some in the Administration claim to know that there are some terrorist suspects who we simply cannot prosecute and must hold indefinitely, while simultaneously knowing that there are individuals inside the previous government who committed and authorized direct crimes but cannot be held responsible. The double standard is staggering.

Amid such competing viewpoints, a compromise idea has also emerged, which the Obama Administration is weighing. A number of national-security lawyers in both parties favor the creation of some new form of preventive detention. They do not believe that it is the President’s prerogative to lock “enemy combatants” up indefinitely, yet they fear that neither the criminal courts nor the military system is suited for the handling of transnational terrorists, whom they do not consider to be ordinary criminals or conventional soldiers. Instead, they suggest that Obama should work with Congress to write new laws, possibly creating a “national-security court,” which could order certain suspects to be held without a trial.

One proponent of this idea is Neal Katyal, whom Obama recently named to the powerful post of Principal Deputy Solicitor General, in the Justice Department. Katyal is best known for his victory as the lead counsel in Hamdan v. Rumsfeld (2006). In his first appearance before the Supreme Court, he persuaded a majority of the Justices to declare that the Guantánamo military-commission system was illegal, arguing that Congress had not authorized the commissions. Katyal’s new job is to represent the government before the Supreme Court. Given the sensitivity of this role, Katyal declined to comment for this story. But in October he posted an article on a Web site affiliated with Georgetown Law, in which he argued, “What is needed is a serious plan to prosecute everyone we can in regular courts, and a separate system to deal with the very small handful of cases in which patently dangerous people cannot be tried.” This new system, he wrote, would give the government the “ability to temporarily detain a dangerous individual,” including in situations where “a criminal trial has failed.” There are hundreds of legal variations that could be considered, he said. In 2007, Katyal published a related essay, co-written with Jack L. Goldsmith, a conservative Harvard Law School professor who served as the head of the Office of Legal Counsel in the Bush Justice Department. The essay argued that preventive detention, overseen by a congressionally authorized national-security court, was necessary to insure the “sensible” treatment of classified evidence, and to protect secret “sources and methods” of gathering intelligence. In his Web post, Katyal wrote, “I support such a security court.”

Amazing. We have powerful individuals in the Obama Administration arguing for a parallel justice system in the United States. No wonder Charlie Savage calls this a return to Bush-era national security policies. Perhaps the most disgusting thing Savage digs up is this quote from Greg Craig, the White House counsel:

Addressing the executive-privilege dispute, Mr. Craig said: “The president is very sympathetic to those who want to find out what happened. But he is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency. So for that reason, he is urging both sides of this to settle.”

"The institution of the Presidency" is seen as more important than the laws the President swears to uphold and execute. And thus an empire crumbles.

While I agree with Glenn Greenwald that there is a distinction between what Obama Administration officials say and what the President will actually do, and that Obama has the opportunity to make a better outcome here (especially if pressured by a newly emboldened Congress), the essential truth cannot be questioned:

Nonetheless, there is no question that Obama has already taken some truly alarming steps, including -- in addition to those listed above -- invocation of highly dubious secrecy claims to resist FOIA requests and keep Bush/Cheney documents concealed. Moreover, after initially (and very tentatively) defending the limited rendition policy which Leon Panetta said they would continue, I've become convinced -- for reasons Darren Hutchinson has argued and Savage today pointed out -- that there's more potential mischief in that policy than I immediately recognized.

There's just no denying that there are substantial and disturbing steps which have been taken. And critically, the primary excuse offered by Obama supporters for all of these actions -- he just needs more time; it's only been three weeks -- is a complete straw man.

The bottom line is this: most of the key civil liberties and Constitutional questions that linger from the dark Bush/Cheney era remain unresolved thus far. Obama has not yet embraced or rejected most of them. And that is by design. There was that first week of Executive Orders that made some nice symbolic gestures and, in some cases, took some tangible steps. In other cases, the Obama administration has already evinced some of the truly disturbing tendencies of its predecessors. But overall, the truly controversial and weightiest questions have been pushed off to the future (e.g., he ordered Guantanamo closed but has not yet said whether he wants to retain the power to imprison accused Terrorists without a real trial). In sum: who and what Barack Obama is when it comes to the restoration of our core civil liberties and Constitutional protections remains to be seen. Those fights are still ones that will be waged.

And we must wage them. We must fight for accountability and justice, starting with a full investigation into Bush-era crimes and a full release of those reports already completed. The American people deserve the truth. Furthermore, we must ensure that the changes in policy resulting from the new Administration on these issues are real changes and not the same policies with a friendlier face.

No Excuse For This

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.

Greenwald:

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.

Now, it could be - probably not, but could be - that as Attorney General Holder is reviewing all state secrets claims, the Justice Department wanted to maintain consistency until a decision was made at the top. However, that doesn't square with the actual conversation in the courtroom:

“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.

I'm sick about this.

Whither Rendition?

The LA Times made a pretty bold claim yesterday, that President Obama was leaving intact the practice of rendition, whereby CIA operatives could snatch terror suspects at will and send them to foreign countries. Now, there are two kinds of rendition, as Nick Beaudrot explains:

Prior to the Bush Administration, the U.S. Government, primarily through the CIA, would periodically snatch high-value suspect from foreign countries, without any sort of formal extradition process. Richard Clarke talks about this in his book Against All Enemies. On the scale of potentially sketchy things an intelligence agency might do, this is not very high; the prisoners were eventually released or tried. So when the L.A. Times says that rendition "has been an effective tool since the early 1990s and was often used to bring terrorism suspects to courts in the United States", that's what their talking about.

But Team Bush appears to have let this concept run wild, and begun snatching suspects with the intention of putting them in various black sites in Eastern Europe murky jurisdiction, or handing them over to countries that are somewhat likely to torture them. That's what Barack Obama put an end to with his executive order.

Hilzoy, through a close reading of the executive orders, elaborates further. Basically, through those orders the United States is not allowed to send any suspect to any country thought to torture. And:

His executive order also precludes any kind of secret detention of prisoners, and thus "secret abductions and transfers of prisoners":

"All departments and agencies of the Federal Government shall provide the International Committee of the Red Cross with notification of, and timely access to, any individual detained in any armed conflict in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States Government, consistent with Department of Defense regulations and policies."

Note that this has no exceptions for short-term detainees whom we quickly hand off to someone else.

It looks like the Times is overreaching. Rendition in terms of extradition, either to or from this country, may be allowable, but not much beyond that. The torture regime is closed no matter how much the establishment wants it to open.

Now I do think the Administration needs to be closely watched, however. The taint of torture is still much on the minds of the rest of the world, yet despite that, there is a lot of pressure to maintain the status quo and not "give up your tools" in the so-called war on terror. If the Obama White House backtracks in any way on their commitments, their foreign policy will be shot and the world will lose all faith in our words. The pressure must be resisted, and the commitment held.

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.

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.

Destruction Terror And Mayhem

I love a news story that allows me to use an LL Cool J lyric. But this is very serious stuff.

The Central Intelligence Agency in 2005 destroyed at least two videotapes documenting the interrogation of two Qaeda operatives in the agency’s custody, a step it took in the midst of Congressional and legal scrutiny about its secret detention program, according to current and former government officials.

The videotapes showed agency operatives in 2002 subjecting terrorism suspects — including Abu Zubaydah, the first detainee in C.I.A. custody — to severe interrogation techniques. The tapes were destroyed in part because officers were concerned that video showing harsh interrogation methods could expose agency officials to legal risks, several officials said.

In a statement to employees on Thursday, Gen. Michael V. Hayden, the C.I.A. director, said that the decision to destroy the tapes was made “within the C.I.A.” and that they were destroyed to protect the safety of undercover officers and because they no longer had intelligence value.

The destruction of the tapes raises questions about whether agency officials withheld information from Congress, the courts and the Sept. 11 commission about aspects of the program.

Ya think?

It's interesting to note when this is coming up. A Senate committee has passed legislation that would limit CIA interrogators to all techniques not approved in the Army Field Manual. This would ban several of the procedures that would presumably have been on those tapes. Of course, they're ALREADY illegal, banned by international law, the Geneva Conventions, and a host of federal statutes. The tapes are essentially evidence of a crime, and worse, evidence of the results of the Cheney Administration's extreme theories of executive power. We are seeing these theories being heavily scrutinized in national and international courts. In London and American prosecutor stated that the US has the right to kidnap British citizens on foreign soil, and not just terror suspects but those accused of garden variety crimes. In the Supreme Court this week arguments were heard on behalf of dozens of detainees at Guantanamo, who have still not been given the right to habeas corpus and the ability to challenge their detentions in court. Here's the story of one of those unfortunate detainees, destined to a life in prison until the German chancellor stepped in.

Just months after U.S. Army troops whisked a German man from Pakistan to the military prison at Guantanamo Bay, Cuba, in 2002, his American captors concluded that he was not a terrorist.

"USA considers Murat Kurnaz's innocence to be proven," a German intelligence officer wrote that year in a memo to his colleagues. "He is to be released in approximately six to eight weeks."

But the 19-year-old student was not freed. Instead, over the next four years, two U.S. military tribunals that were responsible for determining whether Guantanamo Bay detainees were enemy fighters declared him a dangerous al-Qaeda ally who should remain in prison.

The disparity between the tribunal's judgments and the intelligence community's consensus view that Kurnaz is innocent is detailed in newly released military and court documents that track his fate. His attorneys, who sued the Pentagon to gain access to the documents, say that they reflect policies that result in mistreatment of the hundreds of foreigners who have been locked up for years at the controversial prison.

These are all part of the same dysfunction. Kangaroo courts. Extraordinary rendition. Detention without charges. Torture. Indefinite imprisonment. And now, as these practices become gradually discredited, the evidence is buried. And we don't even know who authorized it. From the NY Times report:

Two former intelligence officials said that Porter J. Goss, the director of the agency at the time, was not told that the tapes would be destroyed and was angered to learn that they had been.

Through a spokeswoman, Mr. Goss declined to comment on the matter.

In his statement, General Hayden said leaders of Congressional oversight committees had been fully briefed about the existence of the tapes and told in advance of the decision to destroy them. But the two top members of the House Intelligence Committee in 2005 said Thursday that they had not been notified in advance of the decision to destroy the tapes.

You can try to blot out the evidence, but blotting out the stain on the American character will be impossible. Of everything we've lost over the past seven years, this is by far the worst.

There ought to be jail cells ready and waiting for every one of these guys on January 20, 2009.

They Call It Horse Trading

Ted Kennedy, who I mentioned earlier in reference to NCLB, was nothing short of brilliant yesterday in smacking down the ridiculous rationalizations from torture-lovers Dianne Feinstein and Chuck Schumer.

Schumer and Feinstein said they took solace in Mukasey's assurances that he would enforce any future waterboarding ban passed by Congress. That argument prompted a robust retort from Sen. Edward M. Kennedy (D-Mass.).

"He will, in fact, enforce the laws that we pass in the future? Can our standards have really sunk so low?" Kennedy said. "Enforcing the law is the job of the attorney general. It's a prerequisite, not a virtue."

The answer, of course, is yes. Our standards have sunk deep to the bottom, and Congress has found themselves inadequate to the task of restoration.

As for this "new law" that is suddenly needed to ban waterboarding by the CIA, well, none is needed. Several international treaties and conventions as well as federal statutes already ban the practice. But if closing the made-up "loophole" that allows the CIA to continue the practice would work, then there's no reason to move forward on the Mukasey nomination until it's in place. Senators are certainly calling for a new law, and people like Huckleberry Graham SOUND good:

One of the most emotional moments yesterday came from Sen. Lindsey O. Graham (R-S.C.), a military lawyer who supported Mukasey but criticized his answers on waterboarding. Graham, who has frequently clashed with the Bush administration on interrogation and detention policies, said Mukasey is "a good man of the law" but also urged Congress to pass legislation specifically outlawing the use of waterboarding by all government entities, including the CIA.

"The world is not short of people and countries who will waterboard you. There's not a shortage of people who will cut your heads off in the name of religion," Graham said. "There is a shortage of people who believe in justice, not vengeance."

But once the "Torture-Haters Are America-Haters" rhetoric hits the Capitol, does anyone realistically think that they can get a 2/3 vote with significant Republican support? It's shameful for me to say "No." I think it's great that John Kerry wants to end torture, along with Kennedy and Biden and Reid and all the others. But the fact is that you have to use your leverage points, and the Mukasey nomination is it. Without such a bargain, we'll continue to read about moral depredations like this.

Sometimes the music was American rap, sometimes Arab folk songs. In the CIA prison in Afghanistan, it came blaring through the speakers 24 hours a day. Prisoners held alone inside barbed-wire cages could only speak to each other and exchange their news when the music stopped: if the tape was changed or the generators broke down.

In one such six-foot-by-10-foot cell in February 2004, equipped with a low mattress and a bucket as a toilet, sat a man in shackles named Ibn al Sheikh al Libi, the former al Qaeda camp commander described by former CIA director George Tenet in his autobiography last year as "the highest ranking al-Qa'ida member in U.S. custody" just after 9/11.

In this secret facility known to prisoners as "The Hangar" and believed to be at Bagram Air Base north of Kabul, al Libi told fellow "ghost prisoners," one recalled to me for a PBS "Frontline" to be broadcast tonight, an incredible story of his treatment over the previous two years: of how questioned at first by Americans, by the FBI and then CIA, of how he was threatened with torture. And then how he was rendered to a jail cell in Egypt where the threats became a reality [...]

Under torture after his rendition to Egypt, al Libi had provided a confession of how Saddam Hussein had been training al Qaeda in chemical weapons. This evidence was used by Colin Powell at the United Nations a year earlier (February 2003) to justify the war in Iraq. ("I can trace the story of a senior terrorist operative telling how Iraq provided training in these [chemical and biological] weapons to al Qaeda," Powell said. "Fortunately, this operative is now detained, and he has told his story.")

But now, hearing how the information was obtained, the CIA was soon to retract all this intelligence. A Feb. 5 cable records that al Libi was told by a "foreign government service" (Egypt) that: "the next topic was al-Qa'ida's connections with Iraq...This was a subject about which he said he knew nothing and had difficulty even coming up with a story."

The lesson here is that torture is DESIGNED to extract false confessions, in this case providing a fake evidentiary basis for war with Iraq. Standing up against that takes more than filing a petition and trying to get 51 votes for a bill. It takes shutting everything down until this moral stain is removed.

Restoring the Constitution

I was remiss on Constitution Day to mention Sen. Dodd and Sen. Leahy's efforts to restore habeas corpus, a major undertaking they're attempting as we speak. The website Restore Habeas has a petition you can sign to become a "citizen co-sponsor" of this important legislation. Here's Dodd talking about it:



And here's part of Leahy's statement:

Last year, Congress committed an historic mistake by suspending the Great Writ of habeas corpus — not just for those confined at Guantanamo Bay but for millions of legal residents in the United States. The Senate Judiciary Committee’s hearing in May on this bill illustrated the broad agreement among representatives from diverse political beliefs and backgrounds that the mistake committed in the Military Commissions Act of 2006 must be corrected. The Habeas Corpus Restoration Act of 2007, S.186, the bill on which this amendment is based, has 30 cosponsors. The Senate Judiciary Committee reported it on a bipartisan basis. I hope Senators will review the Committee report on this measure.

Habeas corpus was recklessly undermined in last year’s Military Commissions Act. Like the internment of Japanese Americans during World War II, the elimination of habeas rights was an action driven by fear, and it was a stain on America’s reputation in the world. This is a time of testing. Future generations will look back to examine the choices we made during a time when security was too often invoked as a watchword to convince us to slacken our defense of liberty and the rule of law.

The Great Writ of habeas corpus is the legal process that guarantees an opportunity to go to court and challenge the abuse of power by the Government. The Military Commissions Act rolled back these protections by eliminating that right, permanently, for any non-citizen labeled an enemy combatant. In fact, a detainee does not have to be found to be an enemy combatant; it is enough for the Government to say someone is “awaiting” determination of that status.

The sweep of this habeas provision goes far beyond the few hundred detainees currently held at Guantanamo Bay, and it includes an estimated 12 million lawful permanent residents in the United States today. These are people who work and pay taxes, people who abide by our laws and should be entitled to fair treatment. Under this law, any of these people can be detained, forever, without any ability to challenge their detention in court.

This is wrong. It is unconstitutional. It is un-American.

The federal judge that has been picked to be Attorney General has a long record of deferring to the executive branch on the War on Terror, from allowing them to call any citizen an enemy combatant and treat them under separate rules as they see fit, to allowing them to use military commissions over federal courts, to favoring administrative detention, which is allowing the enemy combatant to be detained without trial. He made one decent call on granting Jose Padilla a lawyer and people are talking like he's William Kunstler. He's not, and the fact that he's now seen as a moderate leads to the kind of mentality that the Congress has when they allow the Military Commissions Act to be passed in the first place. I've always said that it's going to be much harder to get this thing repealed than it will be to get it passed, and it's certainly not going to happen in the Bush era, though I support the effort wholeheartedly. The real destructiveness of the Bush Administration is how they've moved the goalposts on all of this stuff, from torture to illegal detentions to denying habeas rights to domestic spying. It's going to take the concerted efforts of millions of patriots to get things right.

America's Shame

When Democrats say we need to restore US moral standing in the world, this is what they're talking about.

Exhibit one:

Despite denials by their governments, senior Polish and Romanian security officials have confirmed to the Council of Europe that their countries were used to hold some of America's most important prisoners captured after 9/11 in secret.

None of the prisoners had access to the Red Cross and many were subject to what George Bush has called the CIA's "enhanced" interrogation, which critics have condemned as torture. Although suspicions about the secret CIA prisons have existed for more than a year, the council's report, seen by the Guardian, appears to offer the first concrete evidence. It also details the prisons' operations and the identities of some of the prisoners.

And this was done with the full knowledge and complicity of Nato:

The council has also established that within weeks of the 9/11 attacks, Nato signed an agreement with the US that allowed civilian jets used by the CIA during its so-called extraordinary rendition programme to move across member states' airspace.

While this may seem like old news to us in the tubes, this report is significant because, as Dick Marty, the Swiss senator who headed up the inquiry, said:

"What was previously just a set of allegations is now proven: large numbers of people have been abducted from various locations across the world and transferred to countries where they have been persecuted and where it is known that torture is common practice."

Exhibit two:

In the most comprehensive accounting to date, six leading human rights organizations today published the names and details of 39 people who are believed to have been held in secret US custody and whose current whereabouts remain unknown. The briefing paper also names relatives of suspects who were themselves detained in secret prisons, including children as young as seven.

Yes, 7.

In September 2002 Khalid Sheikh Mohammed’s two young sons, aged seven and nine, were arrested. According to eyewitnesses, the two were held in an adult detention centre for at least four months while US agents questioned the children about their father’s whereabouts.

Rachel Maddow interviewed Jayne Huckerby, Research Director at the Center for Human Rights and Global Justice on her show last night who referred to the treatment of the children as torture.

More:

The human rights groups are calling on the US government to put a permanent end to the CIA’s secret detention and interrogation programme, and to disclose the identities, fate, and whereabouts of all detainees currently or previously held at secret facilities operated or overseen by the US government as part of the “war on terror”.

In a related action, Amnesty International USA (AIUSA), CCR and the International Human Rights Clinic of NYU School of Law today filed a lawsuit in US federal court under the Freedom of Information Act (FOIA) seeking disclosure of information concerning “disappeared” detainees, including “ghost” and unregistered prisoners.

On September 6, 2006, Bush admitted to the use of secret detentions and forced disappearance. According to Amnesty International:

The transfer of a detainee to Guantánamo in April 2007 proved that the US network of secret detention was still operating, though the authorities have never disclosed how many individuals have been secretly detained.

The Habeus Corpus Restoration Act is a step in the right direction toward returning our country to some recognizable version of its former self, but considering it will likely be vetoed it's clear that no real progress will be made on this until we have a Democratic president.

On the Bright Side

Marty Lederman must have been channeling my despair over the seeming permanence of torture on the American landscape, and he brings us some encouraging quotes on the subject from two of our top-tier Presidential candidates.

Barack Obama (April 23d):

To build a better, freer world, we must first behave in ways that reflect the decency and aspirations of the American people. This means ending the practices of shipping away prisoners in the dead of night to be tortured in far-off countries, of detaining thousands without charge or trial, of maintaining a network of secret prisons to jail people beyond the reach of the law.

John Edwards (May 23d):

We must always seek to protect our national security by aggressively gathering intelligence in accordance with proven methods. Yet we cannot do so by abandoning human rights and the rule of law. As two former generals recently wrote in the Washington Post, "If we forfeit our values by signaling that they are negotiable ...we drive ... undecideds into the arms of the enemy." And we must avoid actions that will give terrorists or even other nations an excuse to abandon international law. As president, I will close Guantanamo Bay, restore habeas corpus, and ban torture. Measures like these will help America once again achieve its historic moral stature -- and lead the world toward democracy and peace.

Of course, there's one other candidate conspicuously absent there - the lady in the lead.

I believe that Edwards and Obama are sincere. But they will be up against a LOT of resistance from a complex that treats the Presidency, especially a Democratic presidency, with contempt. This train has left the station and it will take supreme effort to return it.

Why I Mourn For America

The deceitful actions of this Administration have permanently harmed the fabric of America. I was hopeful after the 2006 elections that we would be bringing in a new majority committed to overturning the worst abuses and returning a basic respect for Constitutional law. News that Senate Democrats were moving to restore some of the most basic judicial practices to the awful military tribunals compact that they barely lifted a finger to fight last year gave me some hope, although the most important part, the restoration of habeas corpus, is absent from the bill. But this action on a different piece of legislation returned me to my depression, and my belief that our torture policies, which are now ingrained into law by default, will always be a feature of 21st-century American life, at great cost to our collective souls.

The Senate Intelligence Committee on Thursday questioned the continuing value of the Central Intelligence Agency’s secret interrogation program for terrorism suspects, suggesting that international condemnation and the obstacles it has created to criminal prosecution may outweigh its worth in gathering information.

The committee rejected by one vote a Democratic proposal that would essentially have cut money for the program by banning harsh interrogation techniques except in dire emergencies, a committee report revealed [...]

In a closed session on May 23, two Democrats, Senators Sheldon Whitehouse of Rhode Island and Dianne Feinstein of California, proposed barring spending on interrogation techniques that go beyond the Army Field Manual, which bans physical pressure or pain.

Under their proposal, the only exception would have been when the president determined “that an individual has information about a specific and imminent threat.”

The amendment failed when Senator Bill Nelson, Democrat of Florida, joined all the Republicans in voting no.

So tough talk about the uselessness of torture, how it damages our moral standing, weakens our relationship with our allies, puts our soldiers at risk and doesn't pay off with decent information... but when the rubber hits the road, Bill Nelson must retain the culture of permanent fear and ensure that such tactics will continue without limits. And this isn't about Bill Nelson, per se. In our political system and especially in our political age, it's nearly impossible to undo a vote once it's been codified. There's no enthusiasm for right and wrong, just for winners and losers. And once that's been sorted, everybody moves on to the next thing. There's no examination of the underlying reasons, no testing the assumptions, no call to sanity and morality. Even a horrific policy like torture GAINS in stature the more it's allowed to operate. The Republican Party wants to nominate Jack Bauer at this point. And even Democrats like Bill Nelson won't do anything to get in the way. When the McCain Amendment came up for a vote, 90 Senators opposed torture as it's defined in the Army Field Manual. With this vote, every Republican and one Democrat refused to deny funding to a CIA program if it's not in compliance with that same Field Manual. The consensus is going TOWARD, not away from, sanctioning torture as an acceptable policy in this country.

Let's be clear what we're talking about here. The United States reverse engineered programs designed in the Cold War era based on Soviet techniques like “prolonged use of stress positions, exposure to heat and cold, sleep deprivation and even waterboarding.” These techniques were migrated to Guantanamo and Abu Ghraib, and given a euphemistic title of "enhanced interrogation techniques" which is a term that is directly out of Nazi interrogation manuals, although even they objected to things like hypothermia and waterboarding. While military interrogators at Gitmo and Bagram and Abu Ghraib used these new tools, despite the fact that leading intelligence experts have concluded that the techniques are "outmoded, amateurish and unreliable," the CIA enlisted private companies to help them with rendition flights of terror suspects plucked off of the streets in foreign countries, in essence making the private companies, like Boeing, an accessory to "the forced disappearance, torture and inhumane treatment" (the ACLU is now suing Boeing over this). All the while conservatives cheer on this barbarism in the name of "getting tough with terrorists," claiming that any critic of this policy "doesn't understand the nature of the threat we face" (something Paul Waldman does an excellent job of rebutting, pointing out that, considering the leading GOP candidates are routinely conflating Iraq and Al Qaeda and grouping everything Muslim into one enemy, "understanding terrorism" must mean knowing as little as humanly possible about it). And yet these are the same people who will find some random news item about terrorists torturing and kidnapping people, and try to make the argument that critics of US torture policies are being hypocritical because they don't point out terrorist torture policies. Conservative with a brain John Cole makes quick work of this argument:

It isn’t news because they are terrorists, you fucking simpletons. Yesterday, my cat scratched himself then shit in a box. The media didn’t report that, either.

But it really shows an insight into the modern-day conservative mind that the best argument they can think of for the wholesale torture of detainees - at great peril to our moral standing, international cooperation, and troop safety - is that Al Qaeda does it too. There's never any thought to the notion that Al Qaeda should not be the human rights measuring stick for a country supposedly committed to freedom and liberty such as this one. Here's Glenn Greenwald.

The reason that it is news that the U.S. tortures, but not news that Al Qaeda does, is because Al Qaeda is a barbaric and savage terrorist group which operates with no limits, whereas the U.S. is supposed to be something different than that. Isn't it amazing that one even needs to point that out? [...]

And with that twisted equivalency bolted into place, they have dragged our country on a path where that premise is becoming a self-fulfilling prophecy. Our own interrogation methods are reverse-engineered from the most brutal and barbaric countries and groups on the planet. And the policies and practices we have adopted over the last six years embody everything which this country, for decades, vocally deplored. But all of that happened because of this "belief" -- which is really just a self-justifying rationalization -- that we not only have the right to be, but that we must be, exactly like Al Qaeda, do what they do, in order to defeat them.

That is what leads to such indescribably inane though revealing protests: "Hey, you reported that the U.S. tortures, so why aren't you reporting that Al Qaeda does? Whose side are you on?" That is the rancid depth to which our public discourse and our national standards have descended, and those who brought it to that point have designs on dragging it far lower still.

And that's a slippery slope which is unlikely to be able to scale. A country that uses "enhanced interrogation techniques," that denies basic rights of habeas corpus and evidentiary grounds for detention, is what we are right now. We have a Democratic Congress and this continues. We will have a Democratic President, maybe by January 2009, and yet this will still continue. There is little outrage and less principled opposition to the road these authoritarian zealots have taken us down. The conservative base, while abandoning the original messenger, is still whipped into a frenzy of fear and vengeance that is unlikely to dissipate. And there remains a foreign policy consensus that trusts American power to manage the world's conflicts and wage war on Islamic radicalism. It's a genie that's been out of the bottle for many decades, and I would suggest that naivete guides the thinking of anyone who thinks we can immediately put it back inside. Or that our leaders in Washington even want to. Sometimes I think the only thing that raises the ire of anyone in Congress about torture is that news of it leaked out publicly.

It's with a great deal of sadness that I write this. Sad for the country that was built on idealism but quickly descended into the business of scoundrels. Sad for what the political system has mutated into, with its fondness for victory and defeat instead of liberty and justice. Sad for the realization that this is a staple of American life in 2007, as much a part of things as Dancing With the Stars and congested freeways. We have now become what we have long despised, and there's little we can do about it except hang our heads in shame.

"I hope it's your family members that die"

Of all the wingnutty statements from Rep. Dana "you say Taliban, I say Paliban" Rohrabacher, this may be the wingnuttiest. What makes it worse is that he said it in the presence of Col. Ann Wright, who served this country for 45 years in the military and the diplomatic service, fighting for the very values on which Rohrabacher spits.

During a Congressional hearing this week with members of the European Parliament on the practice of extraordinary rendition, whereby detainees are flown on CIA planes to secret prisons all over the world to be tortured either at Guantanamo or their countries of origin, Rohrabacher scoffed at all notions of eliminating this deeply troublesome program, which has harmed our stature with our allies and around the world and has debased our souls, and then busted out with this:

Rohrabacher railed against anyone who questioned the right of the Bush administration to do whatever it wanted, legal or illegal, to prevent terrorist acts and said that by not supporting the Bush policies was consigning their country to the terrorists. In particular he said that any Americans who questioned the extraordinary rendition were un-American [...]

Rohrabacher never once mentioned due process, the rule of law, right to a trial for anyone picked up in the extraordinary rendition program. Merely because persons were “rendered” and imprisoned by the US meant to Rohrbacker they were guilty.

Rohrabacher said if European countries did not cooperate with the United States and go along with whatever the Bush administration wanted, they were condemning their countrymen to death by not using extralegal methods to imprison terrorist suspects. When citizens attending the hearing, including members of Codepink Women for Peace and Veterans for Peace, heard Rohrabacher’s statement, they collectively groaned. Then, much to the shock and disbelief of everyone in the hearing room, Rorhbacker said to those who had expressed displeasure at his statements: "I hope it’s your family members that die when terrorists strike."

So a US Representative wished for death on his fellow Americans because they disagree with him that the best way to fight terror is to hook people's genitals up to electrodes so they can give us false information.

This is of course nothing new for Rohrabacher. During the election he told the father of an Iraq soldier that "you're the one calling your son a war criminal." (go about 5:15 into the clip)

But this is pretty low on the scale of human discourse. Hoping that your critics are killed by terrorists. And don't forget, after the fact he'd exploit those dead to justify permanent and endless war.