The Non-Denial, The Story Grows

Liz Cheney gave a classic non-denial denial on ABC yesterday to the body of evidence that her father directed torture to suspected detainees to get them to make false confessions about links between Iraq and Al Qaeda.

I think that it's important for us to have all the facts out. And and, the first and most important fact is that the vice president has been absolutely clear that he supported this program, this was an important program, it saved American lives. Now, the way this policy worked internally was once the policy was determined and decided, the CIA, you know, made the judgments about how each individual detainee would be treated. And the Vice President would not substitute his own judgment for the professional judgment of the CIA.

Nobody seriously believes this idea that Fourthbranch, who made Langley his second home during the run-up to war, and outed covert CIA agents, and basically fought bureaucratic battles against the CIA during the entire Bush regime, was somehow solicitous of their concerns. But more important, there's nothing even close to a denial there. And while Liz cites Walter Pincus' carefully circumscribed report from anonymous intelligence sources that waterboarding (but not other forms of torture) wasn't used on Abu Zubaydah or KSM (but not other suspects) for the purposes of finding the Iraq/Al Qaeda link (though they were both asked about it), she might want to also respond to this from McClatchy, which is fast becoming the industry leader on this story:

Then-Vice President Dick Cheney, defending the invasion of Iraq, asserted in 2004 that detainees interrogated at the Guantanamo Bay prison camp had revealed that Iraq had trained al Qaida operatives in chemical and biological warfare, an assertion that wasn't true.

Cheney's 2004 comments to the now-defunct Rocky Mountain News were largely overlooked at the time. However, they appear to substantiate recent reports that interrogators at Guantanamo and other prison camps were ordered to find evidence of alleged cooperation between al Qaida and the late Iraqi dictator Saddam Hussein — despite CIA reports that there were only sporadic, insignificant contacts between the militant Islamic group and the secular Iraqi dictatorship.

The head of the Criminal Investigation Task Force at Guantanamo from 2002-2005 confirmed to McClatchy that in late 2002 and early 2003, intelligence officials were tasked to find, among other things, Iraq-al Qaida ties, which were a central pillar of the Bush administration's case for its March 2003 invasion of Iraq.

"I'm aware of the fact that in late 2002, early 2003, that (the alleged al Qaida-Iraq link) was an interest on the intelligence side," said retired Army Lt. Col. Brittain Mallow, a former military criminal investigator. "That was something they were tasked to look at."

Look, it's becoming quite clear that the Cheney Administration did this. Now, traditional media can retreat to safer ground and cover he said/she said stories involving Nancy Pelosi, but they are missing Jonathan Landay's story of the century - and yes, intentionally misinforming the public through this misdirection.

They Lie For A Living

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.

(And that secret DiFi Intelligence Committee panel does not fill the bill here. We need transparency.)

That Incredible Hearing

That torture hearing yesterday with former FBI agent Ali Soufan and Bush State Department official Philip Zelikow and others was truly amazing. Here are just a few of the things we learned:

• During questioning, Russ Feingold stated that he has seen the classified documents "proving" torture worked of which Fourthbranch Cheney often speaks, and nothing he saw "indicates that the torture techniques authorized by the last administration were necessary, or that they were the best way to get information out of detainees."

• Ali Soufan, who sat behind a curtain, making for a hearing that looked like the Monty Python sketch about the talk show featuring a tree and a Chesterfield, testified that the torture techniques were slow and unreliable, that lawful techniques were able to pry key information from Abu Zubaydah within an hour, and that waterboarding wasn't approved until after it was used, according to the timeline put forward by the CIA about Khalid Sheikh Mohammed and Jose Padilla. Either the CIA is lying about the intelligence information they got from KSM and Padilla, or they broke the law and then retroactively sought clearance for it.

• Soufan also called false information in some of the Bradbury torture memos supposedly proving the value of torture.

Senator Sheldon Whitehouse, who’s presiding over the hearing, read aloud a key passage in the May 30th, 2005 torture memo that credited “enhanced techniques” with getting Abu Zubaydah to reveal “detailed information regarding Al Qaeda’s organizational structure, key operatives, and modus operandi.”

The passage Whitehouse read also said the techniques had gotten the suspect to identify Khalid Shaikh Mohammed as the September 11th mastermind.

Whitehouse then asked Soufan if, based on what he witnessed, he knew that statement “not to be true.”

“Yes, sir,” Soufan replied.

• During cross-examination, Lindsey Graham cited the debunked ABC News report claiming that Abu Zubaydah was only waterboarded once, a claim that even ABC News has distanced themselves from. He also called the law "a nicety we could not afford."

• Zelikow, who offered an alternative viewpoint to the Bush Administration on torture in a memo the White House tried to destroy, said that his memo has been found, and will soon be declassified.

And there was more, like the browbeating Graham gave a law professor. I believe Sheldon Whitehouse, who put this hearing together, is building a fact pattern. He wants these things public, so that the drumbeat for real investigations and real accountability will grow. And we have to help him in that regard.

Who Is Gunning For Nancy Pelosi?

Like Marcy Wheeler, I don't know what the WaPo is trying to get at with this story alleging that a top Pelosi aide knew about waterboarding because he attended a briefing with Jane Harman in early 2003 where that was made known. First of all, the aide in question, Michael Sheehy, worked for Harman at the time. Second, the briefing list does not actually specify that waterboarding was covered in the briefing. Third, the briefing was highly classified, and Sheehy wasn't working for Pelosi, so the idea that he would have at that time or any point in the future (he eventually returned to work for Pelosi) divulge the secrets of the briefing would violate federal law - is that the impression the WaPo wants to give? And fourth, Harman lodged a complaint as a result of this briefing, asking that the CIA tapes not be destroyed, and given that this was basically the end of the line as far as Democratic opposition was concerned, whether or not Pelosi knew is kind of immaterial. Pelosi acknowledged this a long time ago:

"It was my understanding at that time that Congresswoman Harman filed a letter in early 2003 to the CIA to protest the use of such techniques, a protest with which I concurred," Pelosi said in the Dec. 9, 2007, statement.

Marcy also notes that the WaPo stretches the truth in suggesting that Pelosi learned about waterboarding from Harman:

And from discussions dating back to 2007, the WaPo completely misrepresents the plain statement of a Pelosi statement on Harman's stance on torture (but not necessarily specifically waterboarding).

"Pelosi herself acknowledged in a December 2007 statement that she was aware that Harman had learned of the waterboarding and had objected in a letter to the CIA's top counsel."

That's not what Pelosi said: She made no specific reference to waterboarding (as opposed to enhanced techniques) [...]

So to review: WaPo says that the CIA briefing list proves Sheehy learned about torture in February 2003. And WaPo says that Pelosi's statement proves she learned the CIA was waterboarding by around that point. While I don't dispute the underlying facts (that Sheehy learned about waterboarding in February 2003, that Pelosi learned about it around then--I don't know one way or another), neither of these statements prove what the WaPo says it does. If the WaPo knows this for a fact, it knows this from another source.

Which is why I find this tidbit--the only anonymous source in an article based on interviews with Democrats Jane Harman and DiFi and Republicans Crazy Pete Hoekstra and Cryin' John Boehner--so interesting.

"A Democratic source acknowledged yesterday that it is almost certain that Pelosi would have learned about the use of waterboarding from Sheehy."

In other words, someone's out to get Nancy Pelosi - and it's a Democrat, quite possibly a member of her California delegation. All of this "who knew" timeline stuff, furthermore, is a misdirection when compared with the plain fact that the CIA, under the direction of the highest levels in the White House, violated domestic and international law, twisting the law to make it seem legal; and those same people at the top who authorized this destroyed dissenting opinions to theirs. And this exercise in tautological thinking and the chasing of red herrings gets us approximately nowhere.

Even after the release of the torture memos, Republicans persist in denying that techniques like waterboarding or chaining a prisoner in a standing position for hours constitute torture. The most common defense of waterboarding is that we subjected our own soldiers to it. That's true--as a way of training them to withstand enemy torture. When you reverse engineer a torture-resistance program, you're almost by definition engaging in torture.

We either have a legal system designed to adjudicate lawbreakers or we don't. Obsessing over who knew what at what time in secret briefings misses the point.

Stupid CIA Tricks

Marcy Wheeler has done the heavy lifting on this story that has cable news in a tizzy about how Nancy Pelosi, according to the narrative, knew about torture techniques in 2002 but said nothing, implicating her in the nefarious scheme. I just want to make a few possibly redundant point.

• CIA agents are a group of professional liars. I don't even think that's slanderous, it's pretty much their job description. They exist to collect intelligence but the means they have used, and the missions on which they have embarked, have strayed far from this purpose and into the areas of disinformation and false flags and just out and out lying. We've already seen their psy-ops training put to work in the traditional media recently, when they got ABC to falsely report that Abu Zubaydah was only waterboarded once, and that it succeeded famously. I am thoroughly unsurprised that the CIA went to the very same network to get favorable treatment on their latest story implicating Pelosi. Within a matter of hours, eagle-eyed journalists spotted the flaw - a letter accompanying the documents, none of which prove conclusively that the CIA told Pelosi about waterboarding, states that the information about the briefings may not be accurate or reliable. It says, and I quote, "In the end, you and the Committee will have to determine whether this information is an accurate summary of what actually happened." Sounds definitive to me! Nancy's a liar!!!1!

• Let's say for the sake of argument that Pelosi was briefed about techniques that constitute torture. First, based on the clear timeline, she was briefed after the torture was committed. Second, I find it curious that the wingers appear to be shocked that Pelosi didn't leak classified information by revealing the contents of the briefings. There is a reasonable debate that can be had over whether the speech and debate clause of the Constitution pre-empts the classification process, and whether Pelosi could have taken to the House floor to raise an objection. I'm wondering whether she would have been praised for her consistency by the right, at that point. Or whether she would have been rhetorically hung as a traitor who damaged national security. In fact, there were few options for anyone to register a complaint. If anything, this entire exercise proves that the briefing process for classified information, and the Select Committees on Intelligence themselves, are terribly broken. Marcy's post on the briefing process should leave no doubts about that.

• Furthermore, pointing to dishonest and discredited CIA documents and taunting "See, your leaders are just as responsible" may be, if it were true, a useful piece of information when determining why many Democrats aren't exactly gung-ho for prosecution or accountability, but from a civil liberties standpoint it means absolutely nothing. War crimes are not mollified by their bipartisan nature, or by a caveat that others were briefed about the war crimes after the fact. Those of us who expect accountability when people in government break the law really aren't concerned with the letter next to their name designating their political party. In fact, this only further cements the need for an independent prosecutor who can bring his own judgments untainted by party to this whole affair. And if Republicans think that threatening to look into crimes from the Clinton Administration will send a chill among those who desire accountability, they're wrong. It would relieve us that we're finally putting down childish things and moving away from the make-believe land of American exceptionalism in all things and into a recognition that people are fallible and they deserve to take responsibility for their actions.

Condi Invokes The Nixon Defense

Condoleezza Rice, who's being investigated and may go to prison if she ever sets foot in Spain, had a conversation at the Hoover Institute where she follows in the footsteps of another California politician:

Q: Is waterboarding torture?

RICE: The president instructed us that nothing we would do would be outside of our obligations, legal obligations under the Convention Against Torture. So that's -- And by the way, I didn't authorize anything. I conveyed the authorization of the administration to the agency, that they had policy authorization, subject to the Justice Department's clearance. That's what I did.

Q: Okay. Is waterboarding torture in your opinion?

RICE: I just said, the United States was told, we were told, nothing that violates our obligations under the Convention Against Torture. And so by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture.

Score one for pop culture, because thanks to the trailer to Frost/Nixon, most of the country understands the insanity of a statement like this.

Cenk Uygur notes that Rice was also questioned about her verbal authorization for waterboarding and other torture techniques to the CIA, and gave a classic answer:

"I didn't authorize anything. I conveyed the authorization of the administration to the agency, that they had policy authorization, subject to the Justice Department's clearance. That's what I did."

Can we ask why she teaches at Stanford at this point, similar to asking why John Yoo remains at Berkeley and Jay Bybee on the federal bench?

Condi Rice's entire career in the White House was marked by a denial of responsibility. "Nobody could have anticipated" should be the epitaph on her gravestone. But I don't know what legal world exists where a conveyance of authorization does not equal an authorization. Uygur concludes:

This is why I say these people don't understand the whole concept behind America. In our system of government, the president is not supposed to be above the law. He is not a king; his word is not the law. The president can violate the law and when he does, he is supposed to be held accountable. That is supposed to be one of the pillars of our democracy.

Look at what she said: "[B]y definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture." Does that mean the president can authorize any kind of torture under the Convention Against Torture?

If someone doesn't do something about this dangerous idea it will do more damage than the torture itself. Yes, the torture damaged our reputation across the world, helped terrorists recruit fighters against us, endangered our soldiers and sullied the name of America. But if this precedent - that the president can authorize anything and make it legal "by definition" - is allowed to stand, then our whole form of government is in jeopardy.

This was not the consensus view of everyone in the government at that time. Not everyone was swept up in 9/11 fever. Military experts warned against using these techniques for a variety of reasons, because it put our soldiers at risk and yielded bad information, setting aside the legal, ethical and moral implications of torture. So the use of these techniques, and the legal theories underpinning them, can only be seen as deliberate and thought-out by the perpetrators. They conspired to break the law for their own reasons, be it their warped beliefs about the Arab Mind, or their desire to expand executive power, or producing the false confessions necessary to assert an Iraq/Al Qaeda link, or whatever. These were sane people who made the decision to torture. And we have courts available to deal with the consequences.

...Spencer Ackerman thinks Condi made news:

But Rice is now portraying herself as merely being a conduit for approving the CIA's interrogation regime: "I conveyed the authorization of the administration to the agency." Well, there are only two more-senior officials than Rice in this context, and that's Bush and then-VP Dick Cheney. If she hadn't made a decision on the part of the administration for the Abu Zubaydah interrogation plan, only one of these two men would have had the authority to do so. And all of this would have happened before the Justice Department determined the interrogation techniques to be legal.

My impression of the SASC report was that Condi told the CIA they could do ahead and waterboard pending OLC approval. But it'd be nice to haul Rice before a panel and ask her to clarify this.

He Said He Tortures, She Said He Tortures

I've said in the past that the moment we start having a debate about torture, the moment we allow it into civilized conversation and the "he said/she said" format of contemporary politics, we've lost that debate. Nevertheless, we can look at the polls and divine that a slim majority would like to see investigations of Bush-era torture practices. It would have been higher if they actually used the word torture instead of "harsh interrogation technqiues", or described the techniques in a legitimate fashion. And of course, this is why the fact of the debate distorts the debate. Dick Cheney blustered and talked about how effective it was to waterboard prisoners and avoided the word torture, and the polls are taken with an eye toward that and an effort to be "fair." But there's nothing to be fair about, no reason to neuter the language. As Will Bunch puts it, torture is not about "winning the afternoon."

I know this must be hard for the editors at the Politico to fathom, but there are actually some stories that come down the pike that are more important, and more complicated, than "winning the morning" or "winning the afternoon." The growing drumbeat of revelations about the torture of prisoners in American custody -- in a scheme that was cooked up and then rationalized at the highest levels of our government -- is nothing less than a moral test of who we are as a nation and where we want go from here. It doesn't lend itself to cute little "up" and "down" arrows, to dueling cable shouters "on the right" and "on the left," to all the little devices we in the media use to equate American politics on the soundbite level of sports' "Pardon the Interruption." [...]

Almost every flaw of our craft has been on display in the last week or two -- the pleading for a middle-of-the-road answer to a problem where there is no middle ground, the phony "he said, she said" journalism that gives a 50 percent voice to the advocates of American-bred torture, the use of unnecessary anonymous quotes to defend the indefensible, the need for an elite inside-the-Beltway clique to circle the wagons, to insist that aggressive prosecution is only for the crimes that "regular people" commit.

What a shame. Although it is tragic that we must be talking about something like torture in the United States of America in 2009, this issue does offer modern journalism a chance to do something we have not done in at least a generation -- and that is to provide this nation, our readers and viewers, with moral clarity and leadership. There is still time to show that we've learned something from the fiasco of pre-Iraq war journalism, when a lack of aggressive reporting and a kowtowing to authority made us a co-conspirator in one major step into the abyss, when we launched a "pre-emptive war" against a nation not capable of attacking us. Now, there is no reason why every journalistic voice in this country can say it as simply as Fox News Channel's Shepherd Smith, that "we are America, we do not (expletive deleted) torture." Why not? I don't know any journalist who thinks there are two sides to freedom of the press, so why should freedom from torture be any different?

Perhaps the biggest failure in the torture "debate" occurred over a year ago, when ABC debased themselves by taking the views of a CIA agent at face value, statements that have now been utterly debunked. Good for the New York Times to dredge it up.

In late 2007, there was the first crack of daylight into the government’s use of waterboarding during interrogations of Al Qaeda detainees. On Dec. 10, John Kiriakou, a former C.I.A. officer who had participated in the capture of the suspected terrorist Abu Zubaydah in Pakistan in 2002, appeared on ABC News to say that while he considered waterboarding a form of torture, the technique worked and yielded results very quickly.

Mr. Zubaydah started to cooperate after being waterboarded for “probably 30, 35 seconds,” Mr. Kiriakou told the ABC reporter Brian Ross. “From that day on he answered every question.”

His claims — unverified at the time, but repeated by dozens of broadcasts, blogs and newspapers — have been sharply contradicted by a newly declassified Justice Department memo that said waterboarding had been used on Mr. Zubaydah “at least 83 times.”

Some critics say that the now-discredited information shared by Mr. Kiriakou and other sources heightened the public perception of waterboarding as an effective interrogation technique. “I think it was sanitized by the way it was described” in press accounts, said John Sifton, a former lawyer for Human Rights Watch, an advocacy group.

There's no question about it. Kiriakou came out of central casting, a Jack Bauer-lite telling conservatives what they wanted to hear. He never carried out waterboarding, he never set foot in a secret CIA prison. But he became the poster boy, and Brian Ross never thought to challenge him on his statements. Kiriakou later ended up working for ABC. And Ross literally says in this story, "I didn’t give enough credit to the fiendishness of the C.I.A.”

As Glennzilla notes, Kiriakou and Ross' lies zinged around conservative media, despite the lack of evidence. And that shaped the "debate". A debate we should never be having. A debate based on falsehoods and false premises. A debate which is hurting our standing in the world.

More fallout from the torture "debate" - you get moronic polemicists criticizing the media for doing their job.



Scarborough has since apologized. But that doesn't matter. It's out there now.

Building A Fact Pattern

I don't think you can debate whether or not to have an investigation on the Bush torture regime anymore, because the investigation is happening regardless. Jeffrey Smith and Peter Finn advance the ball in an article for tomorrow's paper. Little of this is new, but given the new revelations of the past week, it sets itself in proper context.

Condoleezza Rice, John D. Ashcroft and at least 10 other top Bush officials reviewed and approved as early as the summer of 2002 the CIA's use of harsh interrogation methods on detainees at secret prisons, including waterboarding that Attorney General Eric H. Holder Jr. has described as illegal torture, according to a detailed timeline furnished by Holder to the Senate Intelligence Committee.

At a moment when the Justice Department is deciding whether former officials who set interrogation policy or formulated the legal justifications for it should be investigated for committing crimes, the new timeline lists the members of the Bush administration who were present when the CIA's director and its general counsel explained exactly which questioning methods were to be used and how those sessions proceeded.

Rice gave a key early approval, when, as Bush's national security adviser, she met on July 17, 2002, with the CIA's then-director, George J. Tenet, and "advised that the CIA could proceed with its proposed interrogation of Abu Zubaydah," subject to approval by the Justice Department, according to the timeline. Rice and four other White House officials had been briefed two months earlier on "alternative interrogation methods, including waterboarding," it states. Waterboarding is a technique that simulates drowning.

A year later, in July 2003, the CIA briefed Rice, Vice President Richard B. Cheney, Attorney General Ashcroft, White House counsel Alberto R. Gonzales and National Security Council legal adviser John Bellinger on the use of waterboarding and other techniques, it states. They "reaffirmed that the CIA program was lawful and reflected administration policy."

This is the kind of article that results from the authors putting a bunch of index cards on the wall and moving them around. It's what Marcy Wheeler does best. And it suggests that the major news organizations are mapping this out and taking a long look at every granule of information.

By the way, Condi Rice gave that approval two weeks before the Bybee memo allowing the CIA to move forward on torturing Abu Zubaydah. She could have stopped this irrespective of the legal underpinnings. She had two months to determine whether waterboarding, a technique used since the Spanish Inquisition, was torture. She chose not to, and now she must be held to account as well.

I know the President doesn't want the responsibility for future investigations. He apparently quashed the idea of a Presidential-level Torture Commission. But he cannot stop the wheels now in motion. Congress will have their crack at an investigation, and the media will return to the issue. The Attorney General will have to make his own independent judgment. And the truth may yet out.

The Evidence Demands Prosecution

Adam Serwer compared the Bybee memo to the ICRC report and finds that the CIA interrogators most certainly overstepped the legal limits placed on them by the Bush Administration.

The Bybee memo also describes a procedure known as "walling." The detainee wears a thick collar, which the interrogator uses to throw him against a "flexible wall." This "false wall" is meant to be constructed in such a way that impact creates a loud sound. Bybee wrote, "The idea is to create a sound that will make the impact seem far worse than it is and will be far worse than any injury inflicted on an individual." In Bybee's description, the detainee's shoulder blades are meant to hit the wall, implying that the detainee's back is to the wall.

In practice though, the ICRC report indicates that Zubayda was slammed "directly against a hard concrete wall." Another detainee, Walid Bin Attash, said that he was not only slammed against the walls of his interrogation room but that he was led along the corridor by his collar and slammed against the wall as he went. Another detainee said his head was slammed against a pillar repeatedly. One of the other memos released yesterday, written in May 2005 by Steven G. Bradbury, who was then head of the OLC, indicates that "walling" could be used "20 or thirty times consecutively when the interrogator requires a more significant response to a question."

In fact, one of the Bradbury memos acknowledges the illegal use of waterboarding with more frequency than spelled out in the Bybee memo's guidelines.

The memos include what in effect are lengthy excerpts from the agency’s interrogation manual, laying out with precision how each method was to be used. Waterboarding, for example, involved strapping a prisoner to a gurney inclined at an angle of “10 to 15 degrees” and pouring water over a cloth covering his nose and mouth “from a height of approximately 6 to 18 inches” for no more than 40 seconds at a time.

But a footnote to a 2005 memo made it clear that the rules were not always followed. Waterboarding was used “with far greater frequency than initially indicated” and with “large volumes of water” rather than the small quantities in the rules, one memo says, citing a 2004 report by the C.I.A.’s inspector general.

That IG report will eventually come out, among other documents, like those from between the time Abu Zubaydah was captured and the Bybee memo signed off on the 10 harsh interrogation tactics. Zubaydah himself said "the real torturing" started only three months after his capture, which would be around June 2002 (the Bybee memo allowing such techniques wasn't written until August), and it would be good to see that clarified.

But we already have enough evidence, provided by the government and the Red Cross, to indict those interrogators who did not act according to OLC dictates:

Senior administration officials have made it clear to me: neither President Obama's statement nor Attorney General Holder's words were meant to foreclose the possibility of prosecuting CIA officers who did NOT act in good faith, or who did not act according to the guidelines spelled out by the OLC.

As for acting in bad faith, how about those who demanded more information from Abu Zubaydah, when he had no more to tell and was clearly under mental strain?

The first use of waterboarding and other rough treatment against a prisoner from Al Qaeda was ordered by senior Central Intelligence Agency officials despite the belief of interrogators that the prisoner had already told them all he knew, according to former intelligence officials and a footnote in a newly released legal memorandum.

The escalation to especially brutal interrogation tactics against the prisoner, Abu Zubaydah, including confining him in boxes and slamming him against the wall, was ordered by officials at C.I.A. headquarters based on a highly inflated assessment of his importance, interviews and a review of newly released documents show.

Abu Zubaydah had provided much valuable information under less severe treatment, and the harsher handling produced no breakthroughs, according to one former intelligence official with direct knowledge of the case. Instead, watching his torment caused great distress to his captors, the official said.

Even for those who believed that brutal treatment could produce results, the official said, “seeing these depths of human misery and degradation has a traumatic effect." [...]

Quoting a 2004 report on the interrogation program by the C.I.A. inspector general, the footnote says that “although the on-scene interrogation team judged Zubaydah to be compliant, elements within C.I.A. headquarters still believed he was withholding information.”

The debate over the significance of Abu Zubaydah’s role in Al Qaeda and of what he told interrogators dates back almost to his capture, and has been described by Ron Suskind in his 2006 book, “The One Percent Doctrine,” a 2006 article in The New York Times and a March 29 article in The Washington Post asserting that his disclosures foiled no plots. (His real name is Zein al-Abideen Mohamed Hussein.)

This is to say nothing of the architects and superiors who designed, directed and authorized torture. But Attorney General Holder needs to be as good as his word here. The evidence exists to bring interrogators to trial. And the evidence certainly exists to bring to trial the top CIA personnel who demanded to wring Zubaydah out like an old sponge, ignoring the advice on the ground and acting in bad faith. I'd extend to these 4 ex-CIA chiefs who tried to illegally squash this information from ever being made public, George Tenet specifically, because this happened on his watch.

I'm sure someone at the Justice Department could convince a grand jury using only these documents. Prosecute.

More On The Torture Memos

I'm doing some crowdsourcing on the memos over at Daily Kos. You can read it there, but let me bring this to your attention:

On p. 15 of Memo #1, Bybee concludes that waterboarding "constitutes a threat of imminent death," because it creates the "uncontrollable physiological sensation that someone is drowning." NONETHELESS, it was approved, because "prolonged mental harm must nonetheless result to violate the statutory prohibition on infliction of severe mental pain or suffering." So, the Bush OLC approved a technique that they admitted constitutes a threat of imminent death. Wow.

One of the other techniques included putting insects into a small box with Zubaydah. It's really quite sick. I don't know how these people live with themselves.

In addition, here's part of Eric Holder's statement which states that DoJ would foot the bill for any CIA officers prosecuted:

Holder also stressed that intelligence community officials who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice, would not face federal prosecutions for that conduct.

The Attorney General has informed the Central Intelligence Agency that the government would provide legal representation to any employee, at no cost to the employee, in any state or federal judicial or administrative proceeding brought against the employee based on such conduct and would take measures to respond to any proceeding initiated against the employee in any international or foreign tribunal, including appointing counsel to act on the employee’s behalf and asserting any available immunities and other defenses in the proceeding itself.

To the extent permissible under federal law, the government will also indemnify any employee for any monetary judgment or penalty ultimately imposed against him for such conduct and will provide representation in congressional investigations.

"It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department," Holder said.

Just sayin', but that violates the Nuremberg principles:

Article 7. The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.

Article 8. The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.

UPDATE: John Conyers:

"I highly commend the President, Attorney General, and Director of National Intelligence for their decision to release Office of Legal Counsel memos concerning techniques used in the interrogation of terrorism suspects between 2002 and 2005. This release, as well as the decision to ban the use of such techniques in the future, will strengthen both our national security and our commitment to the rule of law and help restore our country's standing in the international community. The legal analysis and some of the techniques in these memos are truly shocking and mark a disturbing chapter in our nation's history. Hopefully these practices have been ended for all time. Critical questions still remain, including the role and legal culpability of high-ranking officials in the former Administration in directing and approving the use of these troubling techniques. I urge the Administration to continue to ensure that the rule of law is upheld concerning this matter."

UPDATE: From Memo #3:

Walling "is one of the most effective interrogation techniques because it wears down the [detainee] physically, heightens uncertainty in the detainee about what the interrogator may do to him, and creates a sense of dread when the [detainee] knows he is about to be walled again."

Reads like a proud papa describing his son the star running back.

It occurs to me that this is entirely actionable. You have the US government releasing specific information about specific techniques used on specific prisoners. No wonder the CIA wanted it buried. Obama definitely deserves credit for releasing it, if not for protecting everyone from prosecution. He pointedly did not mention higher-ups in his statement, however, and while he wouldn't work hard to start an investigation he may not get in the way of one occurring.

Greenwald has this amazing bit from Memo #2:

They explicitly recognized that the techniques they were authorizing were ones that we condemned other countries for using -- including as "torture" -- but nonetheless approved them, explicitly saying that the standards we impose on others do not bind us in any way:

Absolutely astounding. At the very, very least, it is time for Congress to impeach Jay Bybee.

...Read Digby.

Holder Pattern

I caught a little of the Eric Holder testimony to the Senate Judiciary Committee on the way in. I guess the page one headline is that he called waterboarding torture. If that's so, then he is obligated by law to prosecute those who authorized and directed it. Just sayin'.

The cable gabfests are probably talking about him taking responsibility for mistakes made in the Marc Rich pardon. I want to focus on a couple other things. First, the issue of Guantanamo:

Holder echoed that stance Thursday but said shuttering the prison would be difficult and would take time. Many detainees could be transferred to other countries, he said, and some could be charged in U.S. courts. That is a contentious proposal because many oppose the idea of bringing terrorism suspects onto U.S. soil.

"There are possibly many other people who are not going to be able to be tried but who nevertheless are dangerous to this country," Holder said. "We're going to have to try to figure out what we do with them."

What we do is old-fashioned detective work, figure out if we can charge these people, and if we can't, release them. It's as simple as that. That's going to take a little time, since the evidence is currently in complete disarray, as a former prosecutor at Gitmo acknowledges. But it can and should be done as quickly as possible. Furthermore, there is an error in assuming this applies to every detainee still at the facility. It does not. There are hundreds that present no threat to the United States and should be released.

A federal judge ordered the release yesterday of a detainee at the U.S. military prison at Guantanamo Bay, Cuba, ruling that the government's evidence is too weak to justify the man's continued confinement.

It is the second time that U.S. District Judge Richard J. Leon has ordered the release of a detainee after examining government evidence, most of it classified. Leon said that the Justice Department failed to prove that Mohammed El Gharani, 21, is an enemy combatant because it relied heavily on statements made by two other detainees whose credibility is questionable.

In fact, the least we can do is allow some of the detainees whose lives we destroyed to remain free in the United States, even as a symbolic act of contrition and tolerance. This will make it easier to export other detainees to Western nations. If the Obama-Holder plan is just a kinder and gentler indefinite detention and more friendly military commissions, then they own a process which, among other things, is trying children in sham courts, against international law.

A couple other things - Jeff Sessions' questioning of Holder was hilarious. Sessions admitted being "concerned" that Holder wants to operate within the "spirit of the Constitution," because that could mean different things to different people. Yes, see, if your version of the Constitution means that we're not allowed to crush the testicles of children, Mr. Holder, we've got a problem!

In Chuck Schumer's testimony, Holder was asked if he would review the case of Bradley Schlozman and the politicization of the civil rights division, to determine why the US Attorneys declined to prosecute, and Holder said he would. So the Schloz is not out of the woods yet. And he was strong on the overall issue of politicization.

Holder promised to be an independent attorney general, telling lawmakers that he did not believe the attorney general's job was to serve as the president's lawyer — a frequent criticism of Gonzales' tenure under President George W. Bush. He also pledged to restore the independence of a Justice Department where Bush administration appointees used political benchmarks when making hiring decisions.

"One of the things I'm going to have to do as attorney general in short order is basically do a damage assessment," Holder said.

Several Republicans have already agreed to back Holder, so the effort to oppose him is pretty much a sideshow. Inside the false media narrative, however, there is some important information coming out.

Looking Forward, Looking Back

You've probably seen by now that Barack Obama has answered directly whether or not he will appoint a special prosecutor to investigate the crimes of the Bush Administration. Here's his answer:

Q: The most popular question on your own website is related to this. On change.gov it comes from Bob Fertik of New York City and he asks, ‘Will you appoint a special prosecutor ideally Patrick Fitzgerald to independently investigate the greatest crimes of the Bush administration, including torture and warrantless wiretapping.’

OBAMA: We're still evaluating how we're going to approach the whole issue of interrogations, detentions, and so forth. And obviously we're going to be looking at past practices and I don't believe that anybody is above the law. On the other hand I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that for example at the CIA, you've got extraordinarily talented people who are working very hard to keep Americans safe. I don't want them to suddenly feel like they've got to spend all their time looking over their shoulders and lawyering (ph).

STEPHANOPOULOS: So, no 9/11 commission with Independence subpoena power?

OBAMA: We have not made final decisions, but my instinct is for us to focus on how do we make sure that moving forward we are doing the right thing. That doesn't mean that if somebody has blatantly broken the law, that they are above the law. But my orientation's going to be to move forward.

The whole "moving forward" meme is really specious. It may work for a particularly morally centered individual like Obama, who I would guess won't take the same steps as the previous regime. But what "moving forward" says to, you know, criminals, is that at this level, you can get away with violating the law. Sure, lots of people will be outraged, and eventually you might even lose an election. But after that, your successor will say it's time to "move forward" and whatever you did will never see a court of law.

It's not like we don't have the evidence on this.

BUSH: One such person who gave us information was Khalid Sheikh Mohammed. … And I’m in the Oval Office and I am told that we have captured Khalid Sheikh Mohammed and the professionals believe he has information necessary to secure the country. So I ask what tools are available for us to find information from him and they gave me a list of tools, and I said are these tools deemed to be legal? And so we got legal opinions before any decision was made.

We know what those list of tools were. We know that KSM was waterboarded, as well as kept in a freezing cell and subject to stress positions. This is torture. And so you have the President of the United States, telling the world on national television that he personally directed the torture of KSM.

Regardless of the effectiveness (and by the way, 90% of what KSM provided was total bullshit and none of it was actionable), regardless of the intent, if our laws mean anything, then George Bush confessed to breaking them. Now, you may want to not hold the low-level interrogators responsible, but SOMEONE needs to be. Because if you don't, we become what amounts to a lawless state, and those criminals who pop up after the current ones will only learn that they will be immune to prosecution:

In looking back at the Watergate era, the glaring problem Olmstead points out is that it didn't prevent another executive with visions of imperial power from trying to enact just that vision. (Actually, it was one of the same executives--Dick Cheney, a Nixon era White House staffer who came into the executive branch hell bent on destroying what limitations the Congress had enacted post-Watergate.) But that's not the fault of the reformers. If anything, it's the fault of those who blocked real reform. It is quite possible that the abject lawlessness of the Bush administration could have been curbed had there been strong institutional, Congressional barriers in place--barriers that should have come as a result of the Church and Pike commissions. Had a real, functioning, standing committee on Intelligence--with professional investigative staff--been in place, there might have been a check on the Bush administration.

Part of our national character is what is generally called "optimism," but which all too often is actually being hell-bent for the future so we don't have to spend time and energy (and guilt and remorse and responsibility) on things past. It's a natural human response to bad experiences--put them behind you, move on and build a better future.

The problem is that there are a few things that are really too big too sweep under our collective carpet; once scuttled there, they continue to seep out at the edges to gnaw on our national psyche. Slavery is under there. Genocide of Native Americans, too. Hiroshima and Nagasaki. Japanese internment camps. Illegal spying on American citizens. Rendition. Torture.

Now, the apologists in the DC establishment have a fistful of excuses to protect the Bush Administration - and in a sense themselves - from prosecution. Charles Fried calls any prosecution of war crimes a "Night of the Long Knives," as if any criminal trial is an unjust attempt to exact revenge. Fried makes a mockery of our system of justice by drawing false equivalences:

"But should the high and mighty get off when ordinary people committing the same crimes would go to prison? The answer is that they are not the same crimes. Administration officials were not thieves lining their own pockets. Theirs were political crimes committed by persons whose jobs were to exercise the powers of government on our behalf. And the same is even truer of the lower-level officers who followed their orders. (...)

If you cannot see the difference between Hitler and Dick Cheney, between Stalin and Donald Rumsfeld, between Mao and Alberto Gonzales, there may be no point in our talking. It is not just a difference of scale, but our leaders were defending their country and people -- albeit with an insufficient sense of moral restraint -- against a terrifying threat by ruthless attackers with no sense of moral restraint at all."

As Hilzoy says, "I can see the difference between Hitler and Dick Cheney. I can also see the difference between Hitler and a shoplifter. That does not mean that I think that the shoplifter should not be punished for his crime."

If motives are now to be considered in jurisprudence toward ACQUITTING people, not toward convicting them, then I think we need a change in the law. Otherwise, there really is no argument here.

The establishment hacks have gone further than simply wanting Obama to let the crimes of the Bush Administration lie fallow. They want him to continue the crimes. That is a matter for another post, but you can see the Overton Window at work here. If conservatives push for the same policies on civil liberties and effective amnesty, then Obama can push back on the policies and take credit for "moving forward."

It's all well and good that civil liberties may be restored under an Obama Administration, but what about for the next President? And the next? And the next? So long as we only rely on the judgment of men and throw away the laws and the accountability, we will inevitably return to this place. "If men were angels, no laws would be necessary..."

It Is Designed To Obtain False Confessions

Torture as an intelligence-gathering tool is extremely counter-productive and anyone who went to elementary school knows it. If you found yourself at the mercy of some bully's full nelson you would say whatever you could to get out of it. It's insulting to the professionals who actually work as interrogators to tell them to use torture instead of their tested and true techniques.

Torture as a tool of intimidation, as a tool which gives the illusion of progress in gathering intelligence, is quite good. And the evil men and women running policy in Washington knew that, and installed it to that purpose. Today we learned that the interrogators at Gitmo designed a program of torture specifically to obtain false confessions.

The military trainers who came to Guantánamo Bay in December 2002 based an entire interrogation class on a chart showing the effects of “coercive management techniques” for possible use on prisoners, including “sleep deprivation,” “prolonged constraint,” and “exposure.”

What the trainers did not say, and may not have known, was that their chart had been copied verbatim from a 1957 Air Force study of Chinese Communist techniques used during the Korean War to obtain confessions, many of them false, from American prisoners [...]

The 1957 article from which the chart was copied was entitled “Communist Attempts to Elicit False Confessions From Air Force Prisoners of War” and written by Albert D. Biderman, a sociologist then working for the Air Force, who died in 2003. Mr. Biderman had interviewed American prisoners returning from North Korea, some of whom had been filmed by their Chinese interrogators confessing to germ warfare and other atrocities.

Those orchestrated confessions led to allegations that the American prisoners had been “brainwashed,” and provoked the military to revamp its training to give some military personnel a taste of the enemies’ harsh methods to inoculate them against quick capitulation if captured.

You can see the old Air Force study here. We already knew that the techniques were based on SERE (Survival, Evasion, Resistance, Escape), so this isn't that new. But the fact that the Koreans used this program to obtain false confessions is extremely telling. This is why the bigwigs in Washington quashed any reviews and tried to hide the evidence. The US government was using torture for exactly the same purpose as the Koreans. By obtaining false confessions, they can pretend to be successfully fighting the war on terror, justify the masses of people swept up into prison camps, and "send a message" to the rest of the world about how big and bad they are. This was the goal. It's all that Arab mind bullshit the right has swallowed whole for decades.

This is now starting to come out on these cretins, on the techniques they used to debase our country and imperil our national security. And their excuses are pathetic.

Throughout this ugly drama, U.S. leaders have assured the public that the extreme interrogation measures used on detainees have thwarted acts of terrorist and saved thousands of American lives. The trouble with such claims is that professionals who know something of interrogation or intelligence don’t believe them. This is not just because the old hands overwhelmingly believe that torture doesn’t work -- it doesn’t -- but also because they know that torture creates more terrorists and fosters more acts of terror than it could possibly neutralize.

The administration’s claims of having “saved thousands of Americans” can be dismissed out of hand because credible evidence has never been offered -- not even an authoritative leak of any major terrorist operation interdicted based on information gathered from these interrogations in the past seven years. All the public gets is repeated references to Jose Padilla, the Lakawanna Six, the Liberty Seven and the Library Tower operation in Los Angeles. If those slapstick episodes are the true character of the threat, then maybe we’ll be okay after all.

As the above-linked report makes clear, the CIA is STILL doing some of this crap. There are going to be consequences, and as the writer says "It may be impossible for the next administration to fix what has happened to the CIA in the last seven years. It may be a broken brand. Perhaps the only way to proceed next January will be to start over afresh, with a new intelligence structure and new institutions."

That's not just true for the CIA.

...as a postscript, am I the only one to be a little sick of these writers, who want desperately to be as manly as Ernest Hemingway, that cannot believe for certain whether or not waterboarding is torture until they do it themselves? How arrogant (not surprising for Hitchens) to assume that the literally thousands of years of data on the tactic is incomplete until an out-of-shape writer cements it for certain. Hitchens came to the same conclusion as the victims of the Inquisition and the judges at the Nuremberg trials, so what was the point? That anyone feels the need to dignify the brain-dead sadists on the right by calling the efficacy of waterboarding up for question is beyond me.

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.

My Country, My Country

Bob Gates says we're stuck with that Guantanamo prison. Just nothing we can do about it.

Mr Gates told a US Senate hearing: "The brutally frank answer is that we're stuck. We have a serious 'not in my backyard' problem.

"Either their home government won't accept them or we're concerned that the home government will let them loose once we return them home," he said.

"What do you do with that irreducible 70 or 80 who you cannot let loose but will not be charged and will not be sent home?" he asked.

Dianne Feinstein, who has been good on this issue, brushed up against this point, but Gates makes an enormous understatement when he says that those 70 or 80 "will not be charged." He fails to give the reason why, because they've been tortured to obtain information that wouldn't hold up even in their kangaroo courts. Yesterday the Congress heard from a detainee who was tortured and subsequently found to be innocent:

Murat Kurnaz told members of Congress today he was subjected to "water treatment," electric shocks and other abuse during the almost five years he spent in U.S. custody, putting a face to the Justice Department's inspector general report released today, detailing abuses witnessed by FBI agents overseas at detention facilities run by the military and CIA.

Kurnaz, a Turkish citizen, was arrested in Pakistan in late 2001 after the 9/11 attacks while he traveled with a religious tourism group, and was eventually handed over to U.S. forces. He was held in U.S. facilities in Afghanistan and then at Guantanamo Bay.

Speaking to the House Foreign Affairs Committee via video link from Germany with his lawyer at his side, Kurnaz described how he was abused while he was held at a U.S. base in Kandahar, Afghanistan, and described how he was subjected to "water treatment" while in custody.

"They stuck my head into a bucket of water and punched me in the stomach," he said. "I inhaled the water. ... It was a strong punch."

Kurnaz testified that, although he had no links to al Qaeda, and German intelligence services told U.S. officials in 2002 that he was not a terrorist, he languished at Guantanamo until August 2006.

While he was detained in Kandahar, Kurnaz testified, he was chained by his arms to the ceiling with his feet dangling and subjected to electric shocks. Kurnaz also alleges U.S. interrogators tried to force him to sign papers admitting his guilt.

These 70 and 80, whom the Pentagon claims are guilty, received the same treatment. But the claim against sending them to their home countries has always been that they would be tortured or killed by their governments. So we insourced the torture and played buddy-buddy with those new authoritarian partners.

U.S. military personnel at Guantanamo Bay allegedly softened up detainees at the request of Chinese intelligence officials who had come to the island facility to interrogate the men -- or they allowed the Chinese to dole out the treatment themselves, according to claims in a new government report.

Buried in a Department of Justice report released Tuesday are new allegations about a 2002 arrangement between the United States and China, which allowed Chinese intelligence to visit Guantanamo and interrogate Chinese Uighurs held there.

According to the report by Justice Department Inspector General Glenn Fine, an FBI agent reported a detainee belonging to China's ethnic Uighur minority and a Uighur translator told him Uighur detainees were kept awake for long periods, deprived of food and forced to endure cold for hours on end, just prior to questioning by Chinese interrogators.

Susan Manning, a lawyer who represents several Uighurs still held at Guantanamo, said Tuesday the allegations are all too familiar.

U.S. personnel "are engaging in abusive tactics on behalf of the Chinese," she said Tuesday. When Uighur detainees refused to talk to Chinese interrogators in 2002, U.S. military personnel put them in solitary confinement as punishment, she said.

"Why are we doing China's dirty work?" Manning said. "Surely we're better than that."

Surely we're not. We've now become a country with an extra-judicial detention system, one where suspects can be held, tortured, interrogated, and left to die without charges, where the prisoners see the only escape as suicide.

We've now become a country where we aid the Chinese in their own repression of ethnic minority groups.

We've now become a country where all of this is done and our own Secretary of Defense tells us he's very sorry but we can't stop.

If you think one election will wash all this away, you're crazy.

This Week In Torture

Some notable developments in the torture "debate" this week. Yes, there are some people out there who think that torturing other human beings is up for debate, people like Bill O'Reilly and Justice Antonin Scalia. Oh, and Karl Rove, though he comes down on a side that probably he didn't even envision.

Rove writes, "Another McCain story, somewhat better known, is about the Vietnamese practice of torturing him by tying his head between his ankles with his arms behind him, and then leaving him for hours." So, wait, now putting prisoners in stress positions is torture?

Whoops!

At the beginning of the week, we learned that the Justice Department is perfectly happy with undermining international law with the fig leaf of "fighting terrorism".

The Justice Department has told Congress that American intelligence operatives attempting to thwart terrorist attacks can legally use interrogation methods that might otherwise be prohibited under international law.

The legal interpretation, outlined in recent letters, sheds new light on the still-secret rules for interrogations by the Central Intelligence Agency. It shows that the administration is arguing that the boundaries for interrogations should be subject to some latitude, even under an executive order issued last summer that President Bush said meant that the C.I.A. would comply with international strictures against harsh treatment of detainees [...]

“The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act,” said Brian A. Benczkowski, a deputy assistant attorney general, in the letter, which had not previously been made public.

This is the Scalia argument, that the context of torture somehow matters for its legality. I would like to ask Mr. Originalist, who believes that the words of law are concrete and set in stone, if there is any other law in America or abroad that is mutable based on the context. The answer is pretty much no. And it's the argument of a scoundrel.

But it shouldn't be overlooked that this power is even being discussed due to the Military Commissions Act, which allows for the President to decide whether or not a specific action is in violation of the Geneva Conventions. See Glenn on this and how John McCain enabled this incredible offering of power to the chief executive.

It turns out that there are thousands of other documents relevant to the CIA's use of torture, secret detentions and rendition that the CIA doesn't want to give up, claiming that many are covered by a "presidential communications privilege". And yet later in the week, the White House offered disclosure of additional documents.

In a partial concession to Congressional pressure, the Bush administration agreed on Wednesday to show the Senate and House Intelligence Committees secret Justice Department legal opinions justifying harsh interrogation techniques that critics call torture.

The decision, announced at a Senate hearing where Democrats sharply criticized the administration’s secrecy on legal questions, did not satisfy other members of Congress who have pushed for the documents for several years, notably Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Senate Judiciary Committee.

A spokesman for the Justice Department said officials were discussing whether to share part or all the opinions with Mr. Leahy’s panel.

Plus, David Addington, Cheney's Cheney, the Cardinal Richileu of this Administration, after first having said that Congress has no constitutional power to investigate the Vice President's role in authorizing torture, suddenly turned tail and agreed to testify before the House Judiciary Committee.

Today, the Vice President’s office sent a letter to the House Judiciary Committee regarding the Committee’s request for testimony from David Addington, Chief of Staff to the Vice President. The letter is attached.

A committee spokeswoman had the following response: “We acknowledge the Office of the Vice President’s response. Pursuant to their request, we expect the committee to meet next week to authorize a subpoena. We look forward to coming up with a mutually acceptable date for Mr. Addington’s testimony.”

Addington clearly doesn't believe he's wrong about this, and it's unclear whether he's appeared on the record in any public setting. If that hearing goes through, it'd happen in a matter of weeks.

The Senate Intelligence Committee also again banned the CIA from using any techniques not proscribed by the Army Field Manual, from outsourcing torture to private military contractors, and from withholding detainee information from the Red Cross (ending the practice of "ghost detainees").

In the space of a few weeks, there has been a subtle shift on this issue, with some definitive movement. Will it amount to much? The final answer won't come as long as this Administration remains in power - it will come afterwards, in a Democratic Administration, when we discover whether or not Team Torture will be brought to justice and held to account. Until then, we can only keep up the pressure.

The First Salvo In The Next Nuremberg

A Daily Kos diarist and several other citizens were able to question John Ashcroft last night on the subject of torture. His denials were outright revealing and show the nervousness these people feel.

TOM: This story was made public by ABC a few weeks ago. It claims that you, Rice, Tenet and others met in the White House to discuss different methods of "enhanced interrogation," is that correct?

ASHCROFT: (angrily) Correct? Is what correct? Is it correct that this story ran on ABC? I don't know that. I don't know anything about it! Is it a real story? When was this story, huh? Huh?

TOM: Um, early April, April 9th, I think...

ASHCROFT: (interrupting) You think? You think? You don't even know! Next question!

TOM: The article says that you discussed "whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning"...

ASHCROFT: I said, next question!

So when confronted with the fact, Ashcroft deliberately misinterprets the question, asks an irrelevant technicality, (which the kid answered correctly, it was April 9, and uses the technicality to wiggle out of the question. Here the lack of follow-up on the ABC story is crucial, as Ashcroft is able to sow confusion about the story itself because it just hasn't been widely reported.

Next:

Another student asked if Ashcroft's position on torture violated the Geneva Conventions or other international laws:

ASHCROFT: No. No it doesn't violate the Geneva Conventions. As for other laws, well, the U.S. is a party to the United Nations Convention against Torture. And that convention, well, when we join a treaty like that we send it to the Senate to be ratified, and when the Senate ratifies they often add qualifiers, reservations, to the treaty which affect what exactly we follow. Now, I don't have a copy of the convention in front of me...

ME: (holding up my copy) I do! (boisterous applause and whistling from the audience) Would you like to borrow it?

ASHCROFT: (after a pause) Uh, you keep a hold of it. Now, as I was saying, I don't have it with me but I'm pretty sure it defines torture as something that leaves lasting scars or physical damage...

A STUDENT FROM THE AUDIENCE: Liar! You liar! (the student is shushed by the audience)

ASHCROFT: So no, waterboarding does not violate international law.

Well, that's just not true. The UN human rights chief has said waterboarding should be prosecuted as torture. The definition of the UN Convention Against Torture is right here.

"severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession...."

And members of the UN Committee Against Torture have agreed that waterboarding falls under it.

Now, watch the sleight-of-hand here, remembering that Ashcroft brought up the UN Convention Against Torture in the first place.

ME: First off, Mr. Ashcroft, I'd like to apologize for the rudeness of some of my fellow students. It was uncalled for--we can disagree civilly, we don't need that. (round of applause from the audience, and Ashcroft smiles) I have here in my hand two documents. One of them, you know, is the text of the United Nations Convention against Torture, which, point of interest, says nothing about "lasting physical damage"...

ASHCROFT: (interrupting) Do you have the Senate reservations to it?

ME: No, I don't. Do you happen to know what they are?

ASHCROFT: (angrily) I don't have them memorized, no. I don't have time to go around memorizing random legal facts. I just don't want these people in the audience to go away saying, "He was wrong, she had the proof right in her hand!" Because that's not true. It's a lie. If you don't have the reservations, you don't have anything. Now, if you want to bring them another time, we can talk, but...

Well, actually, he WAS wrong, because he tried to claim that the UN Convention was strictly defined as physical harm, that being wrong, he retreated to the idea of reservations and qualifiers. I have those reservations right here (scroll down for "United States"), and here's the key line:

(1) (a) That with reference to article 1, the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

Waterboarding simulates drowning. That would fall under the intentional inflicting of suffering and the threat of imminent death.

So, you know, Ashcroft was wrong again.

Now watch Ashcroft try to muddy a clear precedent.

ME: Actually, Mr. Ashcroft, my question was about this other document. (laughter and applause) This other document is a section from the judgment of the Tokyo War Tribunal. After WWII, the Tokyo Tribunal was basically the Nuremberg Trials for Japan. Many Japanese leaders were put on trial for war crimes and crimes against humanity, including torture. And among the tortures listed was the "water treatment," which we nowadays call waterboarding...

ASHCROFT: (interrupting) This is a speech, not a question. I don't mind, but it's not a question.

ME: It will be, sir, just give me a moment. The judgment describes this water treatment, and I quote, "the victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach." One man, Yukio Asano, was sentenced to fifteen years hard labor by the allies for waterboarding American troops to obtain information. Since Yukio Asano was trying to get information to help defend his country--exactly what you, Mr. Ashcroft, say is acceptible for Americans to do--do you believe that his sentence was unjust? (boisterous applause and shouts of "Good question!")

ASHCROFT: (angrily) Now, listen here. You're comparing apples and oranges, apples and oranges. We don't do anything like what you described.

ME: I'm sorry, I was under the impression that we still use the method of putting a cloth over someone's face and pouring water down their throat...

ASHCROFT: (interrupting, red-faced, shouting) Pouring! Pouring! Did you hear what she said? "Putting a cloth over someone's face and pouring water on them." That's not what you said before! Read that again, what you said before!

ME: Sir, other reports of the time say...

ASHCROFT: (shouting) Read what you said before! (cries of "Answer her fucking question!" from the audience) Read it!

ME: (firmly) Mr. Ashcroft, please answer the question.

ASHCROFT: (shouting) Read it back!

ME: "The victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach."

ASHCROFT: (shouting) You hear that? You hear it? "Forced!" If you can't tell the difference between forcing and pouring...does this college have an anatomy class? If you can't tell the difference between forcing and pouring...

ME: (firmly and loudly) Mr. Ashcroft, do you believe that Yukio Asano's sentence was unjust? Answer the question. (pause)

ASHCROFT: (more restrained) It's not a fair question; there's no comparison. Next question! (loud chorus of boos from the audience)

Well, if Ashcroft thinks he can bully an international criminal court the way he tried to bully a few college students last night, he's going to come off looking just as foolish. Because Ashcroft had the foresight to say "History will not judge us kindly" during the Principals meetings on torture, some have made the effort to rehabilitate him to a degree. I think we can end that now. He's guilty and he knows it, that's why his arguments were so very shallow. A court of law would convict in a matter of minutes.

The Watchers

Let's be clear about the acts of torture planned and authorized out of the White House that The New York Times has editorialized about. Some of the details were laid out in the 2002 Haynes memo signed by Donald Rumsfeld.

These techniques were new to the military. Category I comprised two techniques, yelling and deception. Category II included 12 techniques, aiming at humiliation and sensory deprivation, including stress positions, such as standing for a maximum of four hours; isolation; deprivation of light and sound; hooding; removal of religious and all other comfort items; removal of clothing; forced grooming, such as shaving of facial hair; and the use of individual phobias, such as fear of dogs, to induce stress.

Finally came Category III. These methods were to be used for only a very small percentage of detainees - the most uncooperative (said to be fewer than 3%) and exceptionally resistant individuals - and required approval by the commanding general at Guantánamo. In this category were four techniques: the use of "mild, non-injurious physical contact", such as grabbing, poking and light pushing; the use of scenarios designed to convince the detainee that death or severely painful consequences were imminent for him or his family; exposure to cold weather or water; and, finally, the use of a wet towel and dripping water to induce the misperception of suffocation. This last technique came to be known as water-boarding, described on a chat show by the vice-president, Dick Cheney, as a "dunk in the water" and a "no-brainer" if it could save lives.

Many of these alone were a violation of Common Article 3 of the Geneva Conventions. But rather than coming from a few bad apples at the various detention sites, there was a parallel process of improvisation and brainstorming happening at the highest levels. Before the activities were codified, the interrogators got to play Jack Bauer and draw up a wish list.

(Staff Judge Advocate at Guantanamo Diane) Beaver told me she arrived in Guantánamo in June 2002. In September that year there was a series of brainstorming meetings, some of which were led by Beaver, to gather possible new interrogation techniques. Ideas came from all over the place, she said. Discussion was wide-ranging [...]

Jack Bauer had many friends at Guantánamo Bay, Beaver said, "he gave people lots of ideas." She believed the series contributed to an environment in which those at Guantánamo were encouraged to see themselves as being on the frontline - and to go further than they otherwise might [...]

The younger men would get particularly agitated, excited even: "You could almost see their dicks getting hard as they got new ideas." A wan smile crossed Beaver's face. "And I said to myself, you know what, I don't have a dick to get hard. I can stay detached."

However, an authoritarian Administration was not going to let the sexually aroused grunts drive this policy. In fact, proxies to the highest-ranking officials in the executive branch went on a field trip to carry out their boss' desires.

Dunlavey told me that at the end of September a group of the most senior Washington lawyers visited Guantánamo, including David Addington, the vice president's lawyer, Gonzales and Haynes. "They brought ideas with them which had been given from sources in DC." When the new techniques were more or less finalised, Dunlavey needed them to be approved by Lieutenant Colonel Diane Beaver, his staff judge advocate in Guantánamo. "We had talked and talked, brainstormed, then we drew up a list," he said. The list was passed on to Diane Beaver." [...]

Beaver confirmed what Dunlavey had told me, that a delegation of senior lawyers came down to Guantánamo well before the list of techniques was sent up to Washington. They talked to the intelligence people, they even watched some interrogations. The message from the visitors was that they should do "whatever needed to be done", meaning a green light from the very top - from the lawyers for Bush, Cheney, Rumsfeld and the CIA.

The interrogators were allowed some jollies in the idea formation phase, but once the rules were put in place, it was Cheney, Rumsfeld, and Bush - their top deputies, sitting around and WATCHING live interrogations, and demanding that the most strenuous techniques be employed, going around Chairman of the Joint Chiefs Richard Myers, whose bitterness suggests he was a key source for the ABC story.

In his new book, Torture Team, Philippe Sands QC, a professor of law at University College London, reveals:

• Senior figures in the Bush administration pushed through previously outlawed measures with the help of unqualified and inexperienced military officials at Guantánamo.

• Myers believes he was a victim of "intrigue" by top lawyers at the department of justice, the office of the vice president, Dick Cheney, and Donald Rumsfeld's defence department.

• Myers wrongly believed interrogation techniques had been taken from the army's field manual.

This is a familiar pattern of the power center in this Administration, Rumsfeld and Cheney, subverting the will of everyone else and implementing their agenda. In this case, Myers was flat-out lied to and told that the techniques were covered under the UCMJ.

And today there's a new allegation - prisoner drugging.

Adel al-Nusairi remembers his first six months at Guantanamo Bay as this: hours and hours of questions, but first, a needle.

"I'd fall asleep" after the shot, Nusairi, a former Saudi policeman captured by U.S. forces in Afghanistan in 2002, recalled in an interview with his attorney at the military prison in Cuba, according to notes. After being roused, Nusairi eventually did talk, giving U.S. officials what he later described as a made-up confession to buy some peace.

"I was completely gone," he remembered. "I said, 'Let me go. I want to go to sleep. If it takes saying I'm a member of al-Qaeda, I will.' "

Nusairi, now free in Saudi Arabia, was unable to learn what drugs were injected before his interrogations. He is not alone in wondering: At least two dozen other former and current detainees at Guantanamo Bay and elsewhere say they were given drugs against their will or witnessed other inmates being drugged, based on interviews and court documents.

I don't know if drugging was part of the SERE (Survival, Evasion, Resistance and Escape) program on which most of the tactics were based, the very program used to train American troops for what they expected to face if captured by a brutal enemy. I do know that these tactics resulted in an unknowable amount of murders, more of which are just coming to light.

Today’s documents reveal charges that Special Forces beat, burned, and doused eight prisoners with cold water before sending them into freezing weather conditions. One of the eight prisoners, Jamal Naseer, died in U.S. custody in March 2003. In late 2004, the military opened a criminal investigation into charges of torture at Gardez. Despite numerous witness statements describing the evidence of torture, the military’s investigation concluded that the charges of torture were unsupported. It also concluded that Naseer’s death was the result of a “stomach ailment,” even though no autopsy had been conducted in his case. Documents uncovered today also refer to sodomy committed by prison guards; the victims’ identities are redacted.

Here we see how this thing was both tightly controlled and yet uncontrolled at the same time. The White House offered a menu of techniques, but they also gave that "green light." A bunch of kids who relished the power to an almost sexual degree came up with their own plans and saw that they were basically unleashed and protected from prosecution. So we advance to drugging, sodomy, and murder.

I'm watching the President dancing with a mariarchi band on cable news right now, despite our knowing all this. There are those who are paying attention, however. The Justice Department's Office of Professional Responsibility are looking at the memos used to justify torture, and I imagine that will continue beyond the term of this President. Those who have been following the story see the potential for criminal indictments, and legal experts agree, at least in theory. This, by the way, is why it's going to be nearly impossible to close Guantanamo, because the human rights abuses there will find standing should detainees be allowed on US soil. Behind the scenes there is likely to be a furious effort to indemnify and immunize this President and his senior staff.

We need truth and reconciliation.