February 2009 Archives

weak as water

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March 'middle ground' hearing will probe for Bush admin abuses

David Edwards and Rachel Oswald
THE RAW STORY Wednesday February 25, 2009

Senate Judiciary Committee Chairman Patrick Leahy announced today he will hold a hearing next week to examine options for forming a nonpartisan commission to look into past national security polices and abuses of the Bush administration.

In remarks on the Senate floor late this morning Leahy (D-Vt) announced his hearing "Getting to the Truth Through a Nonpartisan Commission of Inquiry," which will be held at 10 a.m., Weds, March 4 and webcast live online. 

"When historians look back at the last eight years, they will evaluate one of the most secretive administrations in the history of the United States," Leahy said in remarks provided by his office. "We also know that the past can be prologue unless we set things right. The last administration justified torture, presided over the abuses at Abu Ghraib, destroyed tapes of harsh interrogations, and conducted 'extraordinary renditions' that sent people to countries that permit torture during interrogations."

"Nothing has done more to damage America's standing and moral authority than the revelations that, during the last eight years, we abandoned our historic commitment to human rights by repeatedly stretching the law and the bounds of executive power to authorize torture and cruel treatment," Leahy said.

Leahy has suggested an independent panel to focus on national security and executive power as related to counterterrorism efforts. The senator said he has begun to speak with other members in Congress, outside groups and experts, and officials in the White House about the proposal.

He called his commission a "middle ground" for both sides of the aisle to meet in.

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Meanwhile, another Senate committee will review whether CIA interrogation techniques were "successful". If they were (and they have been effective to get detainees to say what officials want to hear), does that make torture OK?

Leon Panetta
J. Scott Applewhite, Associated Press
CIA chief Leon E. Panetta said officers should not be prosecuted if they were acting on orders.
The 'fact-finding' effort will seek details on secret prisons and interrogation methods -- but will not aim to determine if CIA officials broke laws, legislative sources say.
By Greg Miller 
Los Angeles Times February 27, 2009

Reporting from Washington -- The Senate Intelligence Committee is preparing to launch an investigation of the CIA's detention and interrogation programs under President George W. Bush, setting the stage for a sweeping examination of some of most secretive and controversial operations in recent agency history.

The inquiry is aimed at uncovering new information on the origins of the programs as well as scrutinizing how they were executed -- including the conditions at clandestine CIA prison sites and the interrogation regimens used to break Al Qaeda suspects, according to Senate aides familiar with the investigation plans.

Officials said the inquiry was not designed to determine whether CIA officials broke laws. "The purpose here is to do fact-finding in order to learn lessons from the programs and see if there are recommendations to be made for detention and interrogations in the future," said a senior Senate aide, who like others described the plan on condition of anonymity because it had not been made public.

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Does CIA officer protection cover Gary Berntsen?

John Yoo postpones his March 12th visit to UC Berkeley, but Condoleezza Rice returns to work at Stanford:


Stanford Daily File Photo

Condoleezza Rice stands in the Quad in October 1993, shortly after her appointment as Provost. In her early days, Rice handled dramatic budget cuts.
FEBRUARY 23, 2009

Former Secretary of State officially starts March 2 at Hoover

Condoleezza Rice will formally return to Stanford on March 2, said her chief of staff, Colby Cooper. Rice has been settling into her Hoover Institution office in recent weeks, and her staff arrived on campus Dec. 15 to prepare for her return.

The former Secretary of State will not immediately return to teaching but has publicly stated she expects to work on a book and eventually return to the classroom. She will also participate in Hoover task forces dealing with issues including national security, according to Hoover Senior Associate Director Richard Sousa.

The claim that Gitmo guards are getting "their kicks in" follows a Pentagon report boasting humane conditions at Gitmo.

Liliana Segura, AlterNet February 25, 2009

On Monday, the Department of Defense released a report claiming that conditions at our prison camp at Guantanamo Bay have improved and are, in fact, in line with international human rights standards. That rather dubious conclusion was sharply rebutted by the Center for Constitutional Rights, which, on the same day, issued its own report, titled "Conditions of Confinement at Guantanamo: Still In Violation of the Law."

According to CCR Executive Director Vince Warren: "The new report details the inhumane conditions at the base that persist despite President Obama's Executive Order of January 22, 2009, requiring humane standards of confinement at Guantanamo. These include ongoing, severe solitary confinement, other psychological abuse, incidents of violence and threats of violence from guards, religious abuse and widespread forced tube-feeding of hunger strikers. In contrast to the military's report, which appears to include very little testimony or reports from Guantanamo detainees themselves, CCR's report offers multiple cases of abuse in the last two months directly from detainees' experiences."

In a disturbing development, today Reuters reports that, in fact, conditions for Guantanamo prisoners have "worsened sharply" since Obama took office "as prison guards 'get their kicks in' before the camp is closed, according to a lawyer who represents detainees."

detainees speak out

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Binyam Mohamed

Worse Than My Darkest Nightmare

"As I gain my freedom, I am determined that neither those who remain in detention, nor their abusers, are forgotten."

See also How M15 colluded in my torture and The betrayal of British torture victim Binyam Mohamed

Mohamed Farag Bashmilah
"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. "

Propelling prisoners' heads into concrete walls by means of towels wrapped around their necks, savage beatings with fists and rifles that left prisoners crippled, hanging prisoners by the arms with their arms strung up behind them, depriving prisoners of sleep for weeks on end, which has been thought the worst torture possible for 500 years, causing prisoners to freeze -- sometimes to death, and waterboarding are but a partial list of the torture methods ordered by America's highest officials. In the "Preliminary Memorandum of the Justice Robert H. Jackson Conference on Federal Prosecutions of War Criminals," law school Dean Lawrence Velvel, the founder of the Jackson Conference, details the full spectrum of tortures performed in wholesale combinations -- not one torture by itself -- on detainees around the world. His Preliminary Memorandum is a precursor to a formal legal complaint to be filed with the Justice Department this spring.

The Preliminary Memorandum identifies 31 culprits and details the war crimes they committed, the laws they broke, and the many fulsome warnings they received regarding their actions from numerous governmental lawyers and officials high and low, including the Judge Advocate Generals of all the armed services. The culprits who should be prosecuted include Bush, Cheney, Gonzales, Addington, Tenet, Bybee, Yoo, Haynes, Chertoff and others. Furthermore, the Preliminary Memorandum calls the Bush administration's illegal acts "an attempted constitutional revolution that succeeded for years." It began six days after 9/11, when Bush secretly gave the CIA permission to "murder . . . people all over the world." It continued in a series of secret, wholly specious legal memos authorizing torture, electronic eavesdropping, wholesale violations of law, and Presidential usurpation of the role of Congress.

Public pressure eventually forced the administration to declassify a few of the memos. These purported to authorize war crimes outlawed by the Geneva Conventions and U.S. anti-torture laws. Among them was John Yoo's infamous "torture memo" defining torture as "requiring the pain associated with organ failure or death," saying torture supposedly couldn't exist if the torturer wanted information, and urging that the President could do anything he wanted, including paying no attention whatever to Congressional laws. Meanwhile, Bush administration officials and lawyers ignored extensive warnings given them by government officials that they were engaging in criminal acts; the warnings were given both orally and in extensive memos.

fixed opinions

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Yoo Memos Gave Retroactive Cover

By Jason Leopold, consortiumnews.com
February 23, 2009

A Justice Department inquiry has found that the Bush administration's legal opinions justifying the torture of "war on terror" detainees were hastily drafted after one prisoner was already subjected to waterboarding, a practice that creates the sensation of drowning, according to several sources familiar with the still-classified report.

The implication of the finding is that John Yoo and other lawyers for the Justice Department's Office of Legal Counsel violated ethical standards by collaborating with senior White House officials to create legal cover for violating anti-torture and other federal statutes after the fact, rather than providing objective advice for future actions.

The finding also undercuts President George W. Bush's chief legal defense for authorizing abusive treatment of detainees, that he and other administration officials were following what they regarded as independent legal opinions from the OLC, the office that advises the White House on the limits of its constitutional authority.

As more becomes known about the genesis of those OLC opinions, the evidence increasingly points to a different reality, that Bush and his top aides essentially worked with Yoo and the OLC to fix the legal opinions around their desired policy, even to justify actions that had already occurred.

The infamous prison on the outskirts of the Iraqi capital has been partly renovated and now holds about 400 inmates. (Jehad Nga for The New York Times)

Fresh paint and flowers for Abu Ghraib prison

Indefinite detention, no legal rights

John Byrne
 Published: Saturday February 21, 2009 

Bagram airbase flies under the radar but will continue to operate without US law

In a stunning departure from his rhetoric on Guantánamo Bay prison, President Barack Obama signaled Friday he will continue Bush Administration policy with regard to detainees held at a US airbase in Afghanistan, saying they have no right to challenge their detentions in US courts -- and denying them legal status altogether.

"This Court's Order of January 22, 2009 invited the Government to inform the Court by February 20, 2009, whether it intends to refine its position on whether the Court has jurisdiction over habeas petitions filed by detainees held at the United States military base in Bagram, Afghanistan," Acting Assistant Obama Attorney General Michael Hertz wrote in a brief filed Friday. "Having considered the matter, the Government adheres to its previously articulated position."

The move seems to be a reversal from Obama's much-trumpetedannouncement to close the US prison at Guantánamo Bay, Cuba in January, in which he promised to return the United States to the "moral high ground" and "restore the standards of due process"

The US Supreme Court previously ruled that it was unconstitutional to hold detainees at Guantánamo Bay without giving them access to US courts. Following that ruling, more than 200 detainees filed suit in the District Court for the District of Columbia.

The Obama Administration announcement would appear to fly in the face of that ruling. The Court, while often supportive of previous Bush Administration terror policies, has strongly resisted efforts to curb its role in the legal aspect of US detention systems.

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Both sides of torture-law debate aired in discussion at Brown

01:00 AM EST on Friday, February 20, 2009

By Lynn Arditi

Providence Journal Staff Writer

Former Bush administration official John Yoo, left, and Larry Cox, executive director of Amnesty International USA, at Brown University last night.

The Providence Journal / Kris Craig

PROVIDENCE -- A leading human-rights advocate and a former White House legal advisor drew a crowd of more than 450 people yesterday to The Political Theory Project's Janus Forum Lecture at Brown University.

The topic of discussion: "Are there universal human rights and how far should we go to protect them?"

The speakers, who met each other for the first time yesterday, have for years been on opposite sides of a highly charged debate about the ethical, legal and political arguments of the Bush administration's attempt rewrite the laws on torture after the 9/11 terrorist attacks.

John C. Yoo, now a professor at the University of California at Berkley, has become the public face of the Bush administration's "torture memo" for his role in helping to draft legal opinions that paved the way for waterboarding of prisoners and other harsh interrogation practices.

the forgotten kid

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Mohammed Jawad 

Child Soldier [still] Stuck in Legal Limbo at Gitmo

By DAPHNE EVIATAR 2/18/09 The Washington Independent 

Not to be competitive about it or anything, but following up on Matt's post, the case of Mohammed Jawad, the Afghan picked up at age 16 or 17 and tortured before he was transported to Guantanamo Bay, could rival even the Uighurs' case for surreality.

Today, the American Civil Liberties Union, representing Jawad in his habeas corpus petition, was forced into the bizarre situation of having to file a brief opposing the government's motion to dismiss Jawad's case based on his pending military commission proceeding.

But wait, didn't President Obama suspend the military commission proceedings? Yes, actually, one of the president's first acts was to instruct the Defense Secretary Robert Gates to seek a suspension of all military commission proceedings. Administration officials, including Attorney General Eric Holder, have also made clear that they believe the military commissions are unconstitutional. So why are they trying to dismiss the habeas petition in deference to the military commission?

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Published February 14, 2009 THE PANTHER

Upon learning of John Yoo's appointment to Chapman's law school as the 2009 Fletcher Jones Distinguished Visiting Professor, I 'Googled' his name and immersed myself in what I found. It is shameful. 

Yoo is merely the latest in a long line of banal apologists for tyranny whose detritus litters the historical landscape. Yoo served an administration that elevated ideology over the Constitution, partisanship over patrimony. Founders with widely divergent views on executive authority, such as Adams, Hamilton, Jefferson and Madison, were united in opposition to those expressed by Yoo. He represents everything they feared and tried to contain. 

Berkeley's reputation is secure, its prestige is undiminished by the presence of Yoo on its faculty. Chapman's is not. 

He comes to Chapman's law school by invitation. In his memorandums condoning torture and asserting that the president is above the law - later rescinded by the Department of Justice - Yoo violated his ethical obligations as a lawyer. He perverted the clear meaning of the law to condone the administration's policies. 

I do not understand how Yoo's presence on the faculty can benefit Chapman unless it is to appeal to a small right-wing constituency that supports the university financially. 
If that is the case, you have made a Faustian bargain. 

You are known by the company you keep. The reputation of the law school carries with it the reputation of the university. Offering a broad diversity of views is a hallmark of an institution aiming to provide a liberal arts education "of distinction," but giving a scofflaw professor a megaphone inside a right-wing echo chamber, which the law school seems to have become, is not.

My wife and I have proudly supported Chapman - my "alma mater," my nurturing mother - in word and deed since graduating in 1969. We have regularly contributed financially over the years. We have considered augmenting our annual contributions by naming Chapman as a contingent beneficiary in our living trust. No more. 

Unless Yoo's appointment is withdrawn, Chapman will neither receive another dollar from us, nor will I be an advocate for Chapman to prospective students. 

It grieves me to say that I am ashamed of Chapman. Your Chapman has beautiful new buildings and grounds; my Chapman had a tradition of devotion to true liberal arts education, not indoctrination. Your Chapman has a shiny veneer which conceals advocacy of a defunct ideology; my Chapman had a beautiful soul.

he's got Obama's ear as well. What do you think the dean is saying? And does he still defend John Yoo?

Christopher Edley, Jr.

Title: The Honorable William H. Orrick Jr. Distinguished Chair and Dean
Office: 215 Boalt Hall
Tel: 510-642-6483
Fax: 510-642-9893
Email Address: edley@law.berkeley.edu

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Dem Senators To DOJ: How's That Report On Torture Opinions Coming?

Looks like it's not just journalists who are interested in the progress of that DOJ report into whether Bush administration lawyers shaded their opinions on the legality of harsh interrogation methods in order to please the White House.

In the wake of Newsweek's story from over the weekend that a draft of the report criticizes several top Bush officials, including John Yoo, Democratic senators Dick Durbin and Sheldon Whitehouse, both of whom sit on the Judiciary committee, have sent a letter to Marshall Jarrett, who heads the DOJ's Office of Professional Responsibility and is overseeing the report.

In the letter, the senators, who wrote to Jarrett last year requesting the investigation, note that, according to Newsweek, a draft of the report was submitted in the final weeks of the Bush administration. They ask for an update on the status of Jarrett's probe by February 23.

They also suggest that they'll take action if the evidence shows that DOJ lawyers shaped their opinions to conform to the White House's views, writing:

Our intelligence professionals should be able to rely in good faith on the Justice Department's legal advice. This good faith is undermined when Justice Department attorneys provide legal advice so misguided that it damages America's image around the world and the Justice Department is forced to repudiate it. If the officials who provide such advice fail to comply with professional standards, they must be held accountable in order to maintain the faith of the intelligence community and the American people in the Justice Department."

As we noted before, it's not clear that the report will ultimately be released to the public. But at least some in Congress appear to be taking it seriously.


NOTE: See also today's NY Times article, Justice Dept. to Critique Interrogation Methods Backed by Bush Team.

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"issuing preemptive pardons to government torturers would be an unambiguous and blatant violation of our obligations under the Convention [Against Torture]." -

by Glenn Greenwald, Salon, February 15 2009

UPDATE:  Citing numerous leading international law authorities, Valtin has an excellent discussion of the obligations the U.S. has to criminally investigate Bush crimes, not only under the Convention Against Torture but also under the Geneva Conventions.   If we don't consider ourselves bound by the treaties we sign, we should just say so and abrogate them.  Those demanding criminal immunity for Bush officials are advocating that we can and should violate our treaty obligations; they really ought to be honest about it.

The Obama administration, under pressure to turn over key memos written by the Justice Department's Office of Legal Counsel, has asked the federal judge in New York for another 90 days to consider its position on a Freedom of Information Act case brought by a coalition of civil liberties advocates.  But the judge may not be inclined to grant the request.

As earlier reported in ACLU Lawsuit Tests Obama Openess Policies, the three memos at issue were written by then-OLC director Steven Bradbury and reportedly authorized abusive interrogations of suspected terrorists and decided that such extreme tactics would not violate the law. The Bush administration repeatedly refused to turn them over, but given President Obama's promises to open government and increase disclosure under FOIA, the Justice Department now is under considerable pressure to change its position and release the documents, which could be critical to any future investigations or prosecutions of Bush officials.

The New York Times reported in October 2007 that the memos provided "explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures." These did not, the memos concluded, amount to "cruel, inhuman or degrading treatment" -- which would have been banned by international law, as well as a bill Congress was then considering.

The American Civil Liberties Union, which sued for the memos along with several other organizations, argues the memos don't fall under an exception to FOIA because they constitute adopted policy, not confidential legal advice. Although the ACLU agreed to give the Justice Department some additional time to respond to the request, it argued in court this week that 90 days is too long.  The case has already been going on for more than five years.

"The Obama administration deserves credit for its disavowal of torture and for the commitment it has made to transparency, but the public has waited long enough for the disclosure of these memos," said Jameel Jaffer, Director of the ACLU's National Security Project, in a statement released today.

"There is a public debate taking place right now about the role of the CIA going forward and about accountability for the abuses of the last eight years. The immediate release of the memos would allow the public to participate more meaningfully in that debate. While we applaud the administration for its promise of transparency, it's now time to make good on that promise."

On Friday, Judge Hellerstein ordered both sides to appear in his court next Wednesday to discuss how long a delay is warranted. "I take that as a good sign," Jaffer told me Friday. "But we'll see what happens on Wednesday."

will Obama "turn the page"?

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See also Americans Want Torture Inquiry, Obama Doesn't

Review of Guantanamo detainees begins

Protesters dressed as detainees call for closure of the prison at Guantanamo Bay, Cuba. A review of evidence against the prisoners begun this week is a step toward closure and a decision on whether Obama will end Bush's detention policies.
Protesters dressed as detainees call for closure of the prison at Guantanamo Bay, Cuba. A review of evidence against the prisoners begun this week is a step toward closure and a decision on whether Obama will end Bush's detention policies.
The Justice Department is compiling the evidence against each prisoner, a first step toward shuttering the facility and deciding whether Obama can close the book on Bush's detention policies.
By Julian E. Barnes, LA Times
February 14, 2009
Reporting from Washington -- The Obama administration has begun the process of reviewing files of detainees held at Guantanamo Bay to determine who can be prosecuted and who can be transferred to other countries, officials said Friday, a crucial first step toward closing the prison. 

The review, begun this week, is also key to a decision on whether the administration can turn the page completely on the Bush administration's detention policies. 

"We think it essential that these files get looked at with a completely new eye by the new administration," said Devon Chaffee, advocacy counsel for Human Rights First. 

But depending on the outcome of the review, the Obama administration may decide it has to retain some form of the controversial military commission system begun under President Bush. 

Administration officials also could decide they must continue holding some prisoners without trials, relying on the same powers under the law of armed conflict that the Bush administration used to detain "enemy combatants."

Either of those moves would be controversial in the eyes of many human rights groups, who expected that Obama's executive order last month ordering Guantanamo closed would have essentially put an end to the military commission system and the practice of detention without trial.

"The Obama administration made great gains when it announced the plan to close Guantanamo," said Jennifer Daskal, senior counter-terrorism counsel for Human Rights Watch. "Many of those gains will be undercut if the administration is perceived as merely transferring the system of indefinite detention to U.S. soil." 

Former Gitmo guard recalls abuse, climate of fear

Former Guantanamo prison guard Brandon Neely poses Thursday, Feb. 12, 2009  inAP - Former Guantanamo prison guard Brandon Neely poses Thursday, Feb. 12, 2009 in Houston, Texas. Neely ...

SAN JUAN, Puerto Rico - Army Pvt. Brandon Neely was scared when he took Guantanamo's first shackled detainees off a bus. Told to expect vicious terrorists, he grabbed a trembling, elderly detainee and ground his face into the cement -- the first of a range of humiliations he says he participated in and witnessed as the prison was opening for business.

Neely has now come forward in this final year of the detention center's existence, saying he wants to publicly air his feelings of guilt and shame about how some soldiers behaved as the military scrambled to handle the first alleged al-Qaida and Taliban members arriving at the isolated U.S. Navy base.

A Torture Report Could Spell Big Trouble For Bush Lawyers

An internal Justice Department report on the conduct of senior lawyers who approved waterboarding and other harsh interrogation tactics is causing anxiety among former Bush administration officials. H. Marshall Jarrett, chief of the department's ethics watchdog unit, the Office of Professional Responsibility(OPR), confirmed last year he was investigating whether the legal advice in crucial interrogation memos "was consistent with the professional standards that apply to Department of Justice attorneys." According to two knowledgeable sources who asked not to be identified discussing sensitive matters, a draft of the report was submitted in the final weeks of the Bush administration. It sharply criticized the legal work of two former top officials--Jay Bybee and John Yoo--as well as that of Steven Bradbury, who was chief of the Office of Legal Counsel (OLC) at the time the report was submitted, the sources said. (Bybee, Yoo and Bradbury did not respond to multiple requests for comment.)

But then-Attorney General Michael Mukasey and his deputy, Mark Filip, strongly objected to the draft, according to the sources. Filip wanted the report to include responses from all three principals, said one of the sources, a former top Bush administration lawyer. (Mukasey could not be reached; his former chief of staff did not respond to requests for comment. Filip also did not return a phone message.) OPR is now seeking to include the responses before a final version is presented to Attorney General Eric Holder Jr. "The matter is under review," said Justice spokesman Matthew Miller.

Unredacted documents reveal prisoners tortured to death

Stephen C. Webster
RawStory Thursday February 12, 2009

The American Civil Liberties Union has released previously classified excerpts of a government report on harsh interrogation techniques used in Iraq, Afghanistan and Guantanamo Bay. These previously unreported pages detail repeated use of "abusive" behavior, even to the point of prisoner deaths. 

The documents, obtained by the ACLU under a Freedom of Information Act request, contain a report by Vice Admiral Albert T. Church, who was tapped to conduct a comprehensive review of Defense Department interrogation operations. Church specifically calls out interrogations at Bagram Air base in Afghanistan as "clearly abusive, and clearly not in keeping with any approved interrogation policy or guidance."

The two unredacted pages from the Church report may be found here.

"ultra vires"

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Why Are Justice Department Lawyers Defending John Yoo?

By Scott Horton, HARPERS MAGAZINE, February 11, 2009

The Bush Justice Department rushed to defend John Yoo when he got hit with civil lawsuits brought by victims of the torture policies that he helped to author. Now the Obama Administration, which is legally obligated to conduct a criminal investigation of Yoo, seems poised to fall into a trap. The assumption is that Yoo is being sued for things he did as a Justice Department employee, so his defense is to be furnished at taxpayer's expense. But this assumption is wrong, because the misconduct by Yoo that has provoked the lawsuits isn't run-of-the-mill incompetence. As Professor Jordan Paust explains, Congress passed a resolution in 1781 providing that government servants who cause injuries under the laws of nations must bear those liabilities themselves, and twelve years later a justice of the Supreme Court affirmed the principle. War criminals have no right to call on the Justice Department to defend them. They have every reason to expect to be prosecuted.


Judge OK's use of Guantánamo forced-feeding chair

A federal judge accepted a government argument that guards strapping hunger-strikers into a feeding chair is safe and humane.


A federal judge refused Wednesday to stop Guantánamo guards from strapping hunger strikers into a restraint chair in a decision that named President Barack Obama, not George W. Bush, as the unlawful detention petition's target.

''Significant harm could befall medical and security staff at Guantánamo Bay if the injunction is granted,'' U.S. District Court Judge Gladys Kessler wrote in her 24-page ruling, which accepts the Pentagon's argument that its forced-feeding regime is humane.

Two Yemenis had sought an injunction against use of the chair as part of their habeas corpus petition.

One, Mohammed Bawazir, has fasted on-again, off-again for years to protest his confinement. But, his lawyers argued, the 29-year-old Yemeni has never resisted his tube feedings and did not need to be confined to a restraint chair.

The second Yemeni detainee hunger striker, Zahir Hamdoon, 29, asked last month to join the motion.

As of Wednesday, 41 of the 245 captives at Guantánamo were on a hunger strike, said Navy Cmdr. Pauline Storum.

Of them, 35 were being force-fed through a regime that has guards strap a shackled captive into a chair and Velcro his head to a metal restraint.

Camp staff then tether a tube through the man's nose and down to his stomach to pump in a protein shake twice a day. Each feeding lasts about an hour.

Both detainees claimed they were left strapped to the chair much longer than an hour, and the judge cited prison camp medical records that backed the claim.

Still, Kessler's ruling echoed a frequently offered argument by Guantánamo staff: ``The restraint-chair is used to keep both the detainee and the staff as safe as possible.''

Kessler also noted: ``Respondents are acting out of a need to preserve the life of the petitioners rather than letting them die from their hunger strikes.''

Reflecting the change of administration, the court on Constitution Avenue renamed the case as Al Adahi, et al v Barack H. Obama, et al.

Bush was president when the case was started, and the judge noted her sympathy for the detainees' plight, even as she ruled against them.

''From all accounts -- those presented in classified information the court has had access to, in affidavits of counsel and in reports from journalists and human rights groups -- their living conditions at Guantánamo Bay have been harsh,'' she wrote.

The Pentagon has long maintained that conditions are humane at Guantánamo, and said it has investigated and corrected occasional episodes of mistreatment through the years.

The Navy's No. 2 admiral was at the prison camps last week, by order of Obama, checking the prison camps' compliance with the humane treatment provisions of the Geneva Conventions.

Binyam Mohamed is dying

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Video care of  Glenn Greenwald  Tuesday February 10, 2009  salon.com  

On Monday night, Jon Snow on Channel 4 News in London broadcast an excellent report on Mohamed's plight, featuring the heroic work of Mohamed's lawyer, Air Force Lt. Col. Yvonne Bradley.  The report was broadcast the night before the hearing in San Fransisco where the Obama DOJ adopted Bush's state secrets argument.  It is highly worth watching, and as one reviews the full extent of already disclosed facts about what happened here, one can only marvel at how patently frivolous is the Obama DOJ's claim that litigation of this case would risk disclosure of vital state secrets:

Bush policymaker escapes Berkeley's wrath

John Yoo at Chapman University
Don Bartletti / Los Angeles Times
John Yoo, visiting professor at Chapman University's law school, crafted a policy on harsh interrogation tactics as an attorney for the Justice Department. The policy was later withdrawn.

By Susannah Rosenblatt Los Angeles Times
February 10, 2009

UC Berkeley Professor John Yoo, who crafted the administration's policy on torture, is teaching at Chapman University School of Law in Orange, where the protests against him aren't as intense.
"The break from the rule of law in Guantánamo could only happen in a context where, instead of fellow humans, the prisoners there were dehumanized and demonized as the faceless other - the worst of the worst." 

from  Abraham Lincoln on Guantánamo    

As we approach the 200th anniversary of Abraham Lincoln's birth, our sixteenth president provides what sounds like a call to action regarding the policies and injustices that resulted from the law-free zone in Guantánamo: "To correct the evils, great and small, which spring from want of sympathy, and from positive enmity, among strangers, as nations, or as individuals, is one of the highest functions of civilization." The reference to strangers is what caught my eye. The break from the rule of law in Guantánamo could only happen in a context where, instead of fellow humans, the prisoners there were dehumanized and demonized as the faceless other - the worst of the worst. 

Time Is Running Out

By DAPHNE EVIATAR 2/10/09 3:30 PM

When Sen. Pat Leahy (D-Vt.) yesterday proposed to an audience at Georgetown University the creation of a "truth and reconciliation commission" to investigate Bush administration lawbreaking, he specifically did not call for an investigation that could lead to prosecutions, which is the normal response when individuals are suspected of having broken the law. That may be because of one under-reported fact: time for prosecutions is fast running out.

As Chris Anders, Senior Legislative Counsel at the American Civil Liberties Union pointed out to me the other day, the statute of limitations on prosecuting federal criminal cases is only five years.  Some of the most brutal activity that we know about, such as the beatings and waterboarding of detainees by the CIA, started back in 2002, which means the statute on some of those crimes has already run out.

Although the statute of limitations for torture is eight years, anyone accused is sure to argue that their conduct wasn't technically "torture" and try to use as a shield the infamous John Yoo "torture memos" from the Office of Legal Counsel - defining torture as inflicting only the most extreme pain such as accompanies death or organ failure.

"So lots of conduct for people involved in torture and assault, unless death resulted, the statute of limitations probably has lapsed on most of those claims," says Anders. (If death results, there is no statute of limitations. According to Human Rights First, at least 100 detainees died in U.S. custody between August 2002 and February 2006.)

Even the abuses at Abu Ghraib might have taken place too early to prosecute now. The mistreatment of detainees and the gruesome photographs depicting it surfaced in mid-April of 2004.  "At least some abuse tactics were being used after Abu Ghraib, we believe," said Anders. It might not be too late to prosecute some of the abuses.

But Attorney General Eric Holder would have to act quickly to appoint a special prosecutor, as advocates such as the ACLU and the Center for Constitutional Rights have proposed.

Rep. John Conyers (D-Mich.), meanwhile, has proposed the most expansive bill on the subject. H.R. 104, which has ten co-sponsors, would create a National Commission on Presidential War Powers and Civil Liberties. The commission would be charged with investigating "the broad range of policies of the Administration of President George W. Bush that were undertaken under claims of unreviewable war powers" including indefinite detention, "enhanced interrogation techniques", "extraordinary rendition", domestic warrantless wiretapping, and more.

In his subsequent report, "Reining In the Imperial Presidency," Conyers recommends extending the relevant statues of limitations, as AfterDowningStreet.org, which is trying to win support for the idea, points out today.

Conyers' bill hasn't gotten a whole lot of attention, probably because the mainstream media as a whole has been skeptical that a majority in Congress would ever vote to pass such a bill, or that President Obama would support it. (He evaded the question again at his news conference last night.)  But with Leahy's proposal yesterday for an investigatory commission, and statements from Sen. Sheldon Whitehouse (D-R.I.) and others, the momentum is building.

The clock is ticking, though; time to act is running out.


State Secrets

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Obama's Justice Department backs Bush secrecy on renditions suit

Stephen C. Webster
Published: Monday February 9, 2009

An attorney for President Obama's Department of Justice has told the Ninth U.S. Circuit Court of Appeals that it supports the Bush administration's controversial state secrets defense in a lawsuit over the prior president's "extraordinary rendition" program.

"The case involves five men who claim to have been victims of extraordinary rendition -- including current Guantanamo detainee Binyam Mohamed, another plaintiff in jail in Egypt, one in jail in Morocco, and two now free," reports ABC News. "They sued a San Jose Boeing subsidiary, Jeppesen Dataplan, accusing the flight-planning company of aiding the CIA in flying them to other countries and secret CIA camps where they were tortured."

"Under the Bush administration, the U.S. government used false claims of national security to dodge judicial scrutiny of extraordinary rendition," Ben Wizner, an ACLU staff attorney, said in a Monday media advisory. "This case presents the first test of the Obama administration's dedication to transparency and willingness to act on its condemnation of torture and rendition. The administration should unequivocally reject the Bush administration's abuse of the state secrets privilege and permit this case to go forward. Victims of extraordinary rendition deserve their day in court."

"A source inside of the Ninth U.S. District Court tells ABC News that a representative of the Justice Department stood up to say that its position hasn't changed, that new administration stands behind arguments that previous administration made, with no ambiguity at all," continued ABC. "The DOJ lawyer said the entire subject matter remains a state secret."

"The Bush administration's claim is that the 'very subject matter' of the suit is a state secret," said the New York Times in a Wednesday editorial. "We can understand why the Bush team would not want evidence of illegal detentions and torture presented in court, but the argument is preposterous."

"We hope the judges will have the courage to stand up to the government,"said the LA Times on Saturday.

"The Attorney General has directed that senior Justice Department officials review all assertions of the State Secrets privilege to ensure that the privilege is being invoked only in legally appropriate situations," Matt Miller, a spokesman for the Department of Justice, said in a prepared statement. "It is vital that we protect information that, if released, could jeopardize national security." 

"The Justice Department will ensure the privilege is not invoked to hide from the American people information about their government's actions that they have a right to know," Miller continued. "This administration will be transparent and open, consistent with our national security obligations."

"If the Obama administration does not change course, ACLU attorney Wizner will feel betrayed," reported National Public Radio on Sunday.

"It is hard for me to believe that a lawyer representing the United States, representing President Obama and Attorney General Eric Holder, will take the same extreme positions that I've been fighting against for the last several years," Wizner said on NPR's All Things Considered. "It's inconceivable, given the rhetoric that we've heard from candidate and President Obama." 

WASHINGTON (CNN) -- A key Democrat Monday called for the formation of a commission to launch a wide-ranging investigation of alleged wrongdoing by the Bush administration's Justice Department.

Senate Judiciary Committee Chairman Patrick Leahy, D-Vermont, called establishment of such a commission a "middle ground" between those who are demanding prosecutions, and those who simply want to put past disputes to rest.

"I don't want to embarrass anybody. I don't want to punish anybody. I just want the truth to come out so this never happens again," Leahy told a student audience at the Georgetown University Law Center.

A senior Republican dismissed Leahy's proposal as "politics as usual."

Leahy said he wanted a "truth and reconciliation commission" to conduct a "comprehensive" investigation into what he called illegal warrantless wiretapping and torture as well as politically-motivated hirings and firings.

He said he was open to whether such a commission would be congressionally appointed or would include Administration-appointed members similar to the 9/11 Commission. He did say any such commission should have power to subpoena witnesses and be able to grant immunity from prosecution except for perjury.

Leahy's comments are likely to re-ignite a simmering debate about how actively to focus on past political and legal policy disputes.

Attorney General Eric Holder and President Obama have indicated they are cool to focusing too heavily on past arguments, with the President warning against "criminalizing policy disputes".

Holder has promised some unspecified internal reviews at the Justice Department.

Holder's office had no immediate comment on Leahy's remarks.

House Democrats led by Judiciary Committee Chairman John Conyers have urged an aggressive approach to holding Republican partisans accountable for Justice Department failures during eight years under three Attorneys General.

Meanwhile, Congressional Republicans have strongly rejected any further investigations.

The top House Judiciary Committee GOP member Monday blasted Leahy's proposal.

"No good purpose is served by continuing to persecute those who served in the previous administration," said Rep. Lamar Smith, R-Texas. "President Obama promised to usher in an era of "change" and bipartisan harmony. Unfortunately, the continued effort by some Democrats to unjustly malign former Bush Administration officials is politics as usual," Smith said.

Smith cited the four detailed reports stemming from Inspector General investigations, and said recommendations made have been implemented. He said Democrats also had already conducted a two year inquiry in public hearings.

"Rather than continuing to waste taxpayers time and money on fruitless finger-pointing, Congress should focus on the future and what we can do to help the American people during these difficult times," Smith added.

Panetta endorses rendition

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Rendition case in S.F. to test Obama policies

Monday, February 9, 2009

(02-08) 17:05 PST -- The public is likely to get its first close look at the Obama administration's policies on torture, secrecy and prisoners' rights in a San Francisco courtroom today, when federal judges press a government lawyer for a position on the practice known as extraordinary rendition.

Five men - one now imprisoned in Egypt, one in Morocco, one at Guantanamo Bay and two who have been released without charges - are asking the Ninth U.S. Circuit Court of Appeals to reinstate a lawsuit that accuses a San Jose flight-planning company of helping the CIA transport them to overseas dungeons for interrogation and torture.

The suit against Jeppesen Dataplan, a Boeing Co. subsidiary, has never gone to trial. The Bush administration intervened and persuaded U.S. District Judge James Ware to dismiss the case in February 2008 on the grounds that allowing it to proceed could expose state secrets and harm national security.

The Justice Department has urged the appeals court to uphold Ware's ruling, saying that if the case goes to court, it could disclose ultra-sensitive information - the CIA's alleged relationship with a private company, its methods of holding and interrogating suspected terrorists, and the alleged cooperation of foreign governments. The department filed a supporting brief containing classified information under seal.

Obama's course unclear

But those arguments were made when George W. Bush was president. The American Civil Liberties Union, which represents the plaintiffs suing Jeppesen, is looking for President Obama to reverse course.

"The administration should unequivocally reject the Bush administration's abuse of the state secrets privilege and permit this case to go forward," said ACLU attorney Ben Wizner. "Victims of extraordinary rendition deserve their day in court."

Iowa City, throw a shoe at John Yoo

Guest Opinion

David Goodner

Issue date: 2/9/09 Section: Opinions
The UI is getting into a bad habit of paying war criminals to lecture on our campus. Last year, it was former presidential adviser Karl Rove, a man who, as head of the Iraq Study Group, orchestrated the neoconservative, far-right agenda to deliberately and intentionally mislead the American people into a war for oil in Iraq.

Rove was driven out of town by the largest student protest movement Iowa City has seen since the Vietnam War. But apparently the university didn't take the hint.

This year, the UI College of Law has invited University of California-Berkeley Professor John Yoo to deliver a private lecture to law-school faculty this Thursday at 12:40 p.m. Yoo is the former deputy assistant attorney general who, in 2002, wrote or cowrote the infamous "Torture Memos" that attempted to give legal justification for the torture of enemy combatants held at Guantánamo Bay and Abu Ghraib.

The United States is bound by the Geneva Conventions, the Convention Against Torture, Article VI of the U.S. Constitution, the U.S. War Crimes Act, and the Uniform Code of Military Justice to not engage in torture. But Yoo doesn't see it that way. In his memos, he narrowly defined torture as inflicting pain "equivalent in intensity to the pain accompanying death, organ failure, or serious impairment of bodily functions."

By Yoo's definition, then, long-term sensory deprivation, sticking needles under a suspects' fingernails, beating them on the balls of their feet, shocking them with electric cattle prods, dunking their heads in buckets of feces and urine, waterboarding them to the point where they lose consciousness, reviving them, then waterboarding them again, none of these are torture. In lawyer speak this is known as an "interpretive denial." What we do isn't torture, it's "enhanced interrogation."

Yoo even went so far as to say that the president has the right to crush the testicles of a child. During a debate in Chicago on Dec. 1, 2005, international human-rights lawyer Doug Cassel asked Yoo, "If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?"
Obama Must Not Ignore Abuses of Bush Era: Another Test Comes Tomorrow with the Case Against Jeppesen Dataplan

President Obama has failed an early test of his commitment to break with Bush administration policies by blocking the public disclosure of descriptions of torture and abuse suffered by a terror suspect. It's hard to tell if this is a wrongheaded effort to protect the Bush administration from embarrassment or if the Obama team is still just getting its footing. Let's hope it's the latter.

Binyam Mohamed was captured by U.S. and British intelligence officials in Pakistan in 2002, rendered to Morocco and is now a prisoner in Guantanamo Bay. All the charges against Mohamed have been dropped. He says that confessions were tortured out of him. But a statement provided by the United States to British intelligence about Mohamed's mistreatment won't be made part of an opinion by the British High Court because the Bush administration threatened to end intelligence-sharing if it was included. And the Obama administration is going along with that position.

How is it that Obama, who made a dramatic public showing of reversing the Bush administration's terror suspect treatment policies in his first days in office, would continue to use faux claims of national security to keep the public in the dark about the abuses inflicted on prisoners?

According to the British court, the disclosure would have involved "seven very short paragraphs amounting to about 25 lines," summarizing reports on Mohamed's treatment by the United States. The passages, the court said, would have given credence to Mohamed's allegations. There was no danger of compromising intelligence information, the court noted, as all names had been redacted from the documents.

This is not the way to fulfill a campaign promise to return us to the rule of law. What we did to Mohamed needs to be publicly acknowledged. Moving on does not mean covering up.

Another test comes on Monday, when oral arguments are scheduled in a case involving President Bush's rendition policy. The five men who brought suit, including Mohamed, were seized and removed to countries known to torture prisoners or to overseas secret CIA-run prisons -- a policy that CIA Director nominee Leon Panetta vowed to end in his confirmation testimony on Thursday. His claim the next day that he didn't know if rendition for the purpose of abusive interrogation was Bush administration policy is hardly credible and once again suggests Obama administration waffling.

The litigants suffered medieval tortures, including one who was deliberately cut all over and then had stinging liquid poured into his wounds. They are suing a subsidiary of Boeing Co., Jeppesen Dataplan, that allegedly arranged the flights.

The Ninth Circuit U.S. Court of Appeals is being asked to rule on the "state secrets privilege," a tactic that the Bush administration widely employed to avoid answering serious allegations of lawless conduct.

The Bush administration would simply claim that the suit jeopardizes "state secrets" and, like magic, the case would go away. The case Monday is an appeal of a federal district court's decision to dismiss the torture victims' suit on state secrets grounds.

We'll have to see whether the Justice Department under Attorney General Eric Holder continues to use this legal maneuver to avoid judicial review of the outrages against humanity committed during the Bush era. So far, the department has not given any indication it will alter its posture in the case.

When our government devastates the lives of human beings and acts in direct contravention of our laws and Constitution, it should not be allowed to hide from justice behind a shield of national secrets.

Federal judges are perfectly capable of reviewing classified evidence, and there are long-standing procedures to guard the nation's secrets in lawsuits. To suggest otherwise means that the executive branch can act with impunity whenever foreign intelligence matters are at issue.

In the Senate, the State Secrets Protection Act would end the blanket immunity the executive branch now claims under the state secrets privilege, and it would be comforting if Obama would throw his support behind it.

Obama is saying all the right things to put America back on the path of right. Now he has to follow up the talk with the walk.

Sunday, 8th February 2009

The prospect of revenge and justice against the kidnappers and torturers of the Bush administration have been prime drivers for many Obama activists which explains the huge cloud of disillusionment that is spreading across Washington. The activists could stand a rollback on the Iraqi withdrawal, a troop build up in Afghanistan, even the unwillingness to seek the impeachment of Bush and Cheney. But the final straw has come with the confirmation hearing of Leon Panetta, the incoming head of the Central Intelligence Agency.

It was the CIA who kidnapped people off the streets of foreign capitals, hid them away in secret prisons where they were tortured or sent them to third countries where other brutal regimes could do the torturing on America's behalf.  When Leon Panetta was announced as the nominee for the CIA, there was cheering among the rank and file and a frisson of fear at CIA headquarters at Langley. After all, Panetta had been one of the fiercest critics of the torture and rendition program which he described repeatedly as clearly illegal. Here, at last, the activists thought, someone would be held accountable. But at his confirmation hearings last week Panetta said that no action will be taken against anyone who might have carried out what he and others considered illegal acts in the Bush years.

This has produced sighs of relief in the intelligence community where many feared they might become embroiled in a long and legally expensive witch hunt that would derail their careers and jeopardize their freedoms.

Panetta also made clear that much of the torture business will continue as usual and nobody from the Bush years will be held accountable. While waterboarding has been banned, CIA agents will still be allowed to kidnap suspects and hold them for an undefined time without trial. The Red Cross will be given access to the suspects but when and under what circumstances is not clear.

Continue reading here.

Top US lawyer warns of deaths at Guantánamo

Binyam Mohamed, a UK resident held in Guantánamo Bay.

Binyam Mohamed, a UK resident held in Guantánamo Bay. Photograph: PA

Lieutenant-Colonel Yvonne Bradley, an American military lawyer, will step through the grand entrance of the Foreign and Commonwealth Office in London tomorrow and demand the release of her client - a British resident who claims he was repeatedly tortured at the behest of US intelligence officials - from Guantánamo Bay. Bradley will also request the disclosure of 42 secret documents that allegedly chronicle not only how Binyam Mohamed was tortured, but may also corroborate claims that Britain was complicit in his treatment.

But first, Bradley, a US military attorney for 20 years, will reveal that Mohamed, 31, is dying in his Guantánamo cell and that conditions inside the Cuban prison camp have deteriorated badly since Barack Obama took office. Fifty of its 260 detainees are on hunger strike and, say witnesses, are being strapped to chairs and force-fed, with those who resist being beaten. At least 20 are described as being so unhealthy they are on a "critical list", according to Bradley.

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Claims of Torture Abroad Face Test Monday in Court

Published: February 5, 2009
A case to be heard in San Francisco on Monday could provide an early look at whether President Obama will fully break with the previous administration on questions of government secrecy concerning the transfer of terrorism suspects to countries where they may face torture.

Binyam Mohamed, one of five detainees suing a subsidiary of the Boeing Company.

    The hearing grows out of a lawsuit filed on behalf of an Ethiopian native,Binyam Mohamed, and four other detainees against a subsidiary of the Boeing Company. The suit maintains that the subsidiary, Jeppesen Dataplan, helped arrange rendition flights that took the detainees to nations where, they say, they were tortured.

    The suit was filed by the American Civil Liberties Union in the Federal District Court in San Francisco in May 2007. It was dismissed last February after the Bush administration asserted the "state secrets privilege," claiming that the disclosure of information in the case could damage national security.

    In the appeal, to be heard Monday by a three-judge panel of the United States Court of Appeals for the Ninth Circuit, the civil liberties union argues that the government has engaged in an inappropriate blanket use of the privilege and that the case should be allowed to proceed.

    "Every single torture case filed against a U.S. official has been thrown out without any adjudication of law or facts" because of the early and broad use of the state secrets privilege, said Ben Wizner, an A.C.L.U. lawyer.

    The practical effect, Mr. Wizner said, is that detainees are blocked from the courts, and so "there aren't any checks and balances over the conduct."

    In a conference call with reporters on Thursday, Anthony D. Romero, executive director of the A.C.L.U., noted that as a presidential candidate, Mr. Obama pledged to break with the past on the issues of rendition and torture. His Justice Department, however, has not yet signaled whether it will continue to assert the broad state secrets claim, alter it or simply ask for more time to consider its options.

    "The baton has been passed," Mr. Romero said. "The runner must run in the same direction or change course."

    A spokesman for the Justice Department, Charles Miller, declined to comment on the case, as did a White House spokesman, Ben LaBolt.

    But whatever the government's lawyer says on Monday will speak volumes about the administration's views, Mr. Wizner said.

    "If he repeats the Bush administration's argument that this case must be dismissed at the outset," Mr.Wizner said, "then we'll know that despite the change of administration, the policy of the United States that torture victims be shut out of the courtroom has continued."

    John Yoo, the architect of the infamous torture memo, has arrived in Southern California for the Spring 2009 semester at Chapman University Law School.  Carrying on with the work of the Fire John Yoo group in Berkeley, WCW-LA activists and Code Pink-Orange County joined forces on January 30th to "welcome" Yoo at a Chapman conference, "Lincoln's Constitutionalism in Time of War: Lessons for the War on Terror?".  Within minutes of standing in orange jumpsuits at the conference registration table, we were threatened with arrest for trespassing.  Private property trumps human rights!

    We decided to take our message outside where activists lined the sidewalk in front of the Law School and met students, professors and administrators who are outraged that this war criminal has been invited to be a "distinguished visiting professor" on a campus that is proud of its liberal arts tradition, complete with a peace studies major.  Orange ribbons and bandanas were taken up enthusiastically.  In response to the WCW posters that read "Torture = War Crime" and "John Yoo = War Criminal" and the "No Torture" banner, a few people who went by were pro-torture, but most people grabbed flyers and/or gave their support.  A number of people didn't know much about who John Yoo is or that he's now on their campus, so we are planning an event with a Chapman law professor to give people the information they need about Yoo's crimes and how they can become activists in this anti-torture campaign.  An editor of the campus newspaper interviewed us and took photos for a major article that they are planning about Yoo.

    Inside the conference, John Yoo met his match in an elderly Korean man who travelled 3 hours each way, taking 5 buses, to attend the conference and speak out against Yoo.  In addition, Marjorie Cohn, Katherine Darmer, and others brought out powerful arguments on the panels.

    We returned on February 2nd for the first day of classes with a larger group including some Chapman students.  In addition to WCW and Code Pink, there were people from Military Families Speak Out, Amnesty International, Orange County Peace Coalition, OC Peace & Freedom Party, and OC Democratic Club.   A journalism student interviewed us after she readily took up the class assignment to cover this story, and she left with an orange ribbon on her backpack.

     So, seeds have been planted, and emails are flying back and forth between different groups and individuals about the next steps.  Lots of potential -  banner drops, regular presence in front of the law school during his classes combined with the weekly peace vigil at a nearby busy intersection, film showings of movies like Rendition (now that the Obama administration has decided to continue this heinous practice of kidnapping people and sending them to countries who will carry out torture for the U.S.).

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    Obama's Prisoner Dilemma: Reject Torture, Defend Torturers

    By David Kravets  WIRED  EmailFebruary 04, 2009 

    Obama_mail_500pxPresident Barack Obama finds himself in a quandary of sorts over his public position opposing torture and secret detentions.

    The new U.S. president has renounced those Bush administration practices, but government lawyers continue to defend the previous administration's top officials accused of authorizing and carrying out those policies.

    "The Obama administration, from day one, said waterboarding is torture," says Mary Dryovage, a civil rights lawyer who represents federal employees suing the government. "How can one simultaneously state waterboarding is a crime and represent one of the architects of one of the legal arguments in support of waterboarding, which is defined in the Geneva Conventions as a war crime?"

    Chief among those enjoying a taxpayer-funded defense is John Yoo, now a Boalt Hall School of Law scholar at the University of California, Berkeley. As a Bush administration lawyer, Yoo wrote the so-called torture memos the previous administration invoked to rationalize torture of enemy combatants.

    The Justice Department is supplying Yoo with several government lawyers to defend himself in federal court in San Francisco, in a lawsuit (.pdf) brought by Jose Padilla. The one-time alleged "dirty bomber," Padilla claims Yoo's internal legal opinions paved the way for his harsh interrogation while he was secretly held without charges at a Navy brig in South Carolina.

    Statement of Dean John C. Eastman 

    Regarding the Appointment of Professor John Yoo as the 2009 Fletcher Jones Distinguished Visiting Professor at Chapman University School of Law


    December 15, 2008 


    Chapman University officials have received several notes of concern about my decision 

    to offer Professor John Yoo a distinguished visitorship at the Chapman University School 

    of Law.  Professor Yoo has been a well-regarded member of the law faculty at the 

    University of California, Berkeley's Boalt Hall School of Law since 1993, one of the top 

    law schools in the nation.  He visited at the University of Chicago in 2003 and held the 

    Distinguished Fulbright Chair in Law at the University of Trento (Italy) in 2006.  While I 

    acknowledge the controversy surrounding the legal positions Professor Yoo articulated 

    during his tenure as deputy assistant attorney general in the Office of Legal Counsel of 

    the U.S. Department of Justice during the administration of President George W. Bush, 

    we are very much looking forward to Professor Yoo's visit at Chapman University, 

    where our students and, indeed, the entire academic community here at Chapman, can 

    engage him in a serious, yet civil, scholarly discussion of the issues on which he provided 

    legal counsel while serving in the administration. 


    In this, our position is not unlike that of Christopher Edley, Professor Yoo's Dean at 

    Berkeley, and presently a leading member of President-Elect Barack Obama's transition 

    team.  Dean Edley's position in defense of academic freedom is a model for us all.  It is 

    available at http://www.law.berkeley.edu/news/2008/edley041008.html.  Dean Edley 

    noted that "in Berkeley's classrooms and courtyards our community argues about the 

    legal and moral issues with the intensity and discipline these crucial issues deserve. 

    Those who prefer to avoid these arguments--be they left or right or lazy--will not find 

    Berkeley or any other truly great law school a wholly congenial place to study. For that 

    we make no apology." 


    It would be simple for academic institutions to ignore views from one end or the other of 

    the political spectrum.  Indeed, all too many law schools have faculties that are much too 

    homogenous with respect to their views on contested matters.  We, on the other hand, 

    pride ourselves on having built a law school that is now one of the most ideologically 

    diverse in the nation.  Several members of our faculty have clerked at the Supreme Court, 

    but the Justices for whom they worked run the gamut on the ideological spectrum, from 

    the late Chief Justice Rehnquist and Justice Thomas to Justices Brennan, Stevens, and 

    Souter.  This semester we have Richard Falk as our Bette & Wylie Aitken Distinguished 

    Visiting Professor.  Professor Falk, the Albert G. Milbank Professor of International Law 

    and Practice, Emeritus at Princeton University, is an internationally recognized human 

    rights scholar, but also extremely controversial.  He was recently named the U.N.'s 

    rapporteur on the Palestinian territories, but his views are so hostile to Israel that Israel 

    has denied him a visa.  He has in addition authored the preface to a book that argues that 

    the Bush administration was complicit in the attacks on September 11, commending the 

    book for its "single coherent account" of the accusations, and he is listed by David 

    Horowitz as one of "The 101 Most Dangerous Academics in America."  I have no doubt 

    that people on the other side of the political aisle from Professor Falk are as troubled by 

    his having a visiting appointment at Chapman as others are by John Yoo's appointment, 

    but students and faculty of every political stripe have found his presence here to be both 

    stimulating and thought-provoking, and we fully expect the same result from Professor 

    Yoo's visit. 


    Finally, I would encourage those who object to Professor Yoo's appointment here to read 

    his scholarly work on the subject of Executive power, and in particular the memos he 

    authored while serving in the administration.  Read, too, the full range of serious 

    commentary on that work.  You will find that Yoo's position, while disputed, is far from 

    ignorant or disrespectful of the Constitution.  No less a constitutional law scholar than 

    Harvard's Alan Dershowitz had made similar constitutional arguments in favor of 

    executive power in time of war.  See, for example, 



    In the wake of 9/11, President Bush pledged to use every legal and constitutional tool at 

    his disposal to prevent another attack on our homeland.  Some of the task of identifying 

    the line between legal and illegal, constitutional and unconstitutional, fell to Professor 

    Yoo during his time of service in the administration.  Many believe his legal analysis was 

    flawed, but others, serious constitutional scholars and historians among them, think he 

    got it right or at least made a fair stab at it.  The opportunity to explore some of the most 

    profoundly important legal questions of our age with someone who was actually present 

    and involved in the them, whether it be Professor Falk or Professor Yoo, is a phenomenal 

    opportunity for our students, even (and perhaps especially) those who vehemently 

    disagree with the positions they have taken.  As Dean Edley noted, that is the mark of a 

    truly great law school, and I am honored to say that Chapman is increasingly worthy of 

    being considered in such company, in no small measure due to prominent appointments 

    such as Richard Falk and John Yoo. 

    First, Jail All Bush's Lawyers

    By Robert Parry 
    February 3, 2009

    If new Attorney General Eric Holder really means what he said in his oath - that he will "support and defend the Constitution of the United States" - then he must give serious consideration to prosecuting crimes committed by the Bush administration, including its torturing of detainees.

    And Holder might be advised to begin the process at his own agency, the Department of Justice. To paraphrase Shakespeare, Holder might start by first jailing all of George W. Bush's lawyers.

    The logic of targeting former Justice Department lawyers - the likes of John Yoo and Jay Bybee - is that they were the linchpin for justifying acts that were clearly illegal; they provided the paper cover for both the interrogators in the field and the senior officials back in Washington.

    Bush and Vice President Dick Cheney have repeatedly cited this legal guidance when insisting that the harsh interrogation of "war on terror" detainees - as well as other prisoners from the Iraq and Afghan wars - did not cross the line into torture.

    In essence, the Bush-Cheney defense is that independent lawyers at the Justice Department's Office of Legal Counsel and elsewhere gave honest opinions - and that everyone from the President and Vice President, who approved specific interrogation techniques, to the interrogators, who carried out these acts, operated in good faith.

    If, however, that narrative is false - if the lawyers colluded with policymakers in creating legal excuses for criminal acts - then the Bush-Cheney defense collapses. Rather than diligent lawyers providing professional advice, the picture is of consiglieres counseling crime bosses how to skirt the law.

    oral argument pending

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    Torture Case Tests Obama Secrecy Policy

    Will Obama Administration Break From Bush on Extraordinary Rendition?

    By DAPHNE EVIATAR 1/26/09 6:05 AM
    Image by: Matt Mahurin

    Image by: Matt Mahurin

    President Obama's sweeping reversals of torture and state secret policies are about to face an early test.

    After Obama issued an executive order and two presidential memoranda last week proclaiming a new transparency in the workings of the federal government, advocates for open government were thrilled.

    "That was an order we were really looking for," said Michael Ratner, president of the Center for Constitutional Rights.The test of those commitments will come soon in key court cases involving CIA "black sites" and torture that the Bush administration had quashed by claiming they would reveal state secrets and endanger national security. Legal experts say that the Bush Department of Justice used what's known as the "state secrets privilege" - created originally as a narrow evidentiary privilege for sensitive national security information -- as a broad shield to protect the government from exposure of its own misconduct.

    One such case, dealing with the gruesome realities of the CIA's so-called "extraordinary rendition" program, is scheduled for oral argument before a federal appeals court in early February. The position the Obama administration takes in this case may be the first major test of its new policies on transparency in government.

    Physicians for Human Rights' National Student Conference:
    Senator Whitehouse Supports Call for Investigation into Use of Torture by U.S.

    By Philip Marcelo
    Journal Staff Writer
    , Rhode Island news

    PROVIDENCE -- U.S. Sen. Sheldon Whitehouse, speaking at a conference for health and medical professionals at Brown University yesterday, made the case for holding the Bush administration accountable for changing the nation's policy on torture.

    "We need to follow this thing into those dense weeds and shine a bright light into what was done," said the state's junior senator. "We can paper it over if we choose, but the blueprint is still lying there for others to do it all over again. ... It's important that we not let this moment pass."

    Whitehouse, a Democrat, spoke at the close of the first of two days of the Physicians for Human Rights' National Student Conference, an annual gathering of medical, public health, nursing and undergraduate school students.

    Challenging the former administration's use of torture has been one of the key areas of advocacy for the D.C.-based organization, and its leaders passed on to Whitehouse a petition signed by conference goers calling for Congress to form a committee to investigate the federal government's use of torture and other coercive methods of interrogation.

    Nearly 400 students from 75 schools across the nation were at yesterday's conference.

    Whitehouse focused his remarks on why the nation, despite the daunting challenges it faces on the economic front, must confront the issue of torture early in the Obama administration.

    Under Bush, "the U.S. government took part in inhumane, brutal interrogation techniques that were torture," he said. "The question is, what does it mean when a country as a whole heads down a road like this? It is an important story to tell to understand the way democracy works."

    The former state attorney general and former U.S. Attorney for Rhode Island has become a vocal figure nationally on issues of torture and abuse as a member of the Senate Judiciary and the Senate Intelligence committees.

    Whitehouse explained how in 2002, the U.S. Department of Justice's Office of Legal Counsel issued a memo that became the standard for how the federal government under Bush would define acts of torture -- as those acts that caused organ failure or death in their subjects.

    "They got that standard, from all places, from health-care reimbursement law," said Whitehouse. "The words happened to be useful to them, but they were taken out of context."

    Whitehouse pointed out that the Department of Justice in the 1980s prosecuted a county sheriff in Texas for using waterboarding (the practice of simulating drowning by covering a victim's face with a towel and dousing him or her with water) to coerce confessions from suspects.

    Even then, the U.S. government had deemed waterboarding as torture, he said.

    "It's beyond malpractice," said Whitehouse of the 2002 ruling. "It raises the specter that these things were overlooked" purely for political ends, he said.

    Some have argued that digging into the actions of the Bush administration would open deep wounds at a time when the nation is trying to heal. But those at the conference, including Whitehouse, disagreed.

    "It's an issue of accountability," said John Bradshaw, chief policy officer for the Physicians for Human Rights. "We need to re-establish the fact that no one is above the law."

    By ANDREW O. SELSKY, Associated Press

    A senior Navy officer based in Hawaii who once went to the same high school as President Barack Obama will be the next commander of the detention center at Guantánamo Bay, Cuba, the Pentagon said Friday.

    Rear Adm. Thomas H. Copeman III has been assigned as the next commander of the Joint Task Force that runs the U.S. offshore prison camps, said Adm. Gary Roughead, the chief of Naval operations. Copeman is currently the deputy chief of staff for operations, training and readiness for the U.S. Pacific Fleet in Pearl Harbor.

    The Pentagon did not say when Copeman takes over at Guantánamo, but he will preside over a historic period. In one of his first acts as president, Obama ordered the detention center closed within a year. About 245 suspected al Qaeda and Taliban members and others are currently locked up at the U.S. Navy base in southeast Cuba.

    Obama and Copeman graduated from Punahou School in Hawaii two years apart. Copeman has said in previously published reports that he didn't know Obama among the roughly 1,600 students at its high school. The two have since met.

    Copeman is the son and grandson of Navy veterans, like Obama's rival for the White House, Republican nominee John McCain.

    The current commander of Joint Task Force-Guantánamo is Navy Rear Adm. David Thomas. Military press officials at the Pentagon, Pearl Harbor and Guantánamo said they did not know when the change of command would occur. Thomas started a two-year tour of duty last May, according to Navy Cmdr. Pauline Storum, director of public affairs for the joint task force.

    The U.S. military intends to maintain the Guantánamo base, now commanded by Navy Capt. Steve Blaisdell, even after the detention center closes.

    Mark your calendars

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    Oral arguments in  Mohamed et al. v. Jeppesen Dataplan, Inc.  scheduled for Monday February 9   

    United States Court of Appeals - 9th Circuit

    95 Seventh Street

    San Francisco

    Posted by Suzanne Ito, ACLU 

    On his first full day in office, President Obama addressed his senior staff and cabinet secretaries with remarks that included the following:

    The way to make government responsible is to hold it accountable. And the way to make government accountable is make it transparent so that the American people can know exactly what decisions are being made, how they're being made, and whether their interests are being well served.

    [...]Let me say it as simply as I can: Transparency and the rule of law will be the touchstones of this presidency."
    Music to ears of civil libertarians everywhere, and it's especially welcome news to five men who are the ACLU's clients in our extraordinary rendition lawsuit. These men were kidnapped by the CIA and transported to countries where they were tortured. Jeppesen Dataplan, a subsidiary of the Boeing Company, provided the planes and flight planning services that enabled their rendition. The ACLU sued Jeppesen, charging that the company actively participated in the extraordinary rendition program by providing these services to the CIA to transport these five men.

    As in our previous extraordinary rendition case on behalf of German citizen Khaled el-Masri, the district court in the Jeppesen case allowed the government--then under the Bush administration -- to invoke the state secrets privilege, and accepted its claim that hearing the case in open court would jeopardize national security.

    Well, the ACLU will return to court next month, and the Washington Independent's Daphne Eviatar penned an excellent article about how the upcoming oral arguments in this case will test the Obama administration's commitment to transparency, and opposition to torture. Eviatar writes:

    The test of those commitments will come soon in key court cases involving CIA "black sites" and torture that the Bush administration had quashed by claiming they would reveal state secrets and endanger national security. Legal experts say that the Bush Department of Justice used what's known as the "state secrets privilege" -- created originally as a narrow evidentiary privilege for sensitive national security information -- as a broad shield to protect the government from exposure of its own misconduct.
    Mark your calendars: Oral arguments in Jeppesen are scheduled for February 9. When Eviatar contacted the Justice Department about whether they would change their position in the case, they declined to comment. So it's wait-and-see time: we're hoping for a complete 180 from the new DOJ, and that our clients will finally see their day in court.

    For more on the "extraordinary rendition" program, read  
    The CIA's torture taxi by A.C. Thompson and Trevor Paglen.


    Obama preserves rendition two days after taking office

    Jeremy Gantz
    Published: Sunday February 1, 2009


    Two days after taking the helm of a country ready for change after eight years of George W. Bush, President Obama has allowed one controversial "War on Terror" tactic to remain in place: rendition.

    Despite frequent condemnation of the practice around the world, rendition -- the secret capture, transportation and detention of suspected terrorists to foreign prisons in countries that cooperate with the U.S. -- remains in the CIA's playbook, thanks to a recent executive order issued by President Obama.

    Other executive orders shuttered the CIA's secret prisons and banned the harsh interrogation techniques that have been termed torture. And in his most widely noticed break with his predecessor, Obama signed an order to close Guantanamo Bay's prison within one year.

    But rendition will remain. Obama and his administration appear to believe that the rendition program was one piece of the Bush administration's war on terrorism that it could not afford to discard, the Los Angeles Times reported.

    An administration official told the newspaper anonymously: "Obviously you need to preserve some tools -- you still have to go after the bad guys. The legal advisors working on this looked at rendition. It is controversial in some circles and kicked up a big storm in Europe. But if done within certain parameters, it is an acceptable practice."

    The momentous decision by Obama and his young administration appeared in a small provision of one executive order, which states that instructions to close the CIA's secret prison sites "do not refer to facilities used only to hold people on a short-term, transitory basis."

    Under that language, the Soviet-era black site used by the CIA between 2002 and 2004 and revealed by Raw Story in 2007 would remain open.

    In late 2007, the U.S. House voted to effectively end CIA renditions. But that prohibition, part of a $50 billion Iraq funding bill, was never passed in the Senate. Also in 2007, Congress apologized for the wrongful detainment of Canadian citizen Maher Arar, who was "rendered" to Syria, where he was tortured into making a false confession.

    Flower Power

    Candace Gorman posts about one of her clients at Guantanamo, where the cruelty continues

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