Failure to faithfully execute the laws against torture

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an excerpt from Obama's Continuing 'Terror War' Policies by Ernest A. Canning, 

c/o the Brad Blog:

But for me, as an attorney, who like all attorneys has taken a solemn oath to support and defend the Constitution and laws of these United States, and as the son of a man who was tortured --- waterboarded --- by the Japanese during World War II, it is the question of torture which has led me to join with Pilger in asking, again, who is this man?

Early in this new administration, even before I published a five part series on "The History of CIA Torture" (Part I, II, III, IV & V), in which I traced the current torture scandal to a more than 50-year history of CIA torture transcending multiple administrations, I wrote in "Prosecute or Perish," warning that nothing less than the very survival of our Constitutional democracy and the rule of law hinged upon factually warranted criminal investigations and prosecutions of all who authorized or participated in torture inside the Bush/Cheney cabal.

In "Fixing the Facts and Legal Opinions Around the Torture Policy," I expressed dismay when the President told CIA employees, who tortured under the quasi-legal sophistries authored by the likes of John Yoo and Jay S. Bibee, they would not be prosecuted. The President said this was "a time for reflection, not retribution...nothing will be gained by spending our time and energy laying blame for the past." White House Press Secretary Robert Gibb explained that the President insisted on "looking forward."

I pointed out that the remarks from a President, who was a Harvard Law School scholar and former Professor of Constitutional Law at the University of Chicago, made no sense whatsoever; that it would be impossible to ever prosecute anyonewithout "looking back" at the crime already committed.

Law Professor Jonathan Turley blasted the effort to equate law enforcement with "retribution."

He is trying to lay the ground work for principle when he is doing an unprincipled thing....President Obama himself has said that water boarding is torture, and torture itself violates four treaties and is considered a war crime. So the refusal to allow it to be investigated is to obstruct a war crimes investigation....There aren't any convenient or inconvenient times to investigate war crimes. You don't have a choice....You have an obligation to do it, and what I think the President is desperately trying to do is to sell this idea that somehow it's a principled thing not to investigate war crimes because it's going to be painful...It will be politically unpopular because an investigation will go directly to the doorstep of President Bush...and there's not going to be a lot of defenses that can be raised for ordering a torture program.

Yet, the Obama administration has done nothing to bring those who authorized torture or authored the quasi-legal sophistries, aka "torture memos," before the bar of justice. Where last May the Justice Department had prepared an initial draft of an ethics report that would recommend state bar proceedings against John Yoo and Jay Bibee, the latter a sitting judge on a federal appellate bench, on Jan. 30 of this yearNewsweek reported that even this relatively minor semblance at accountability turned into a complete white-wash. The Justice Department's Office of Professional Responsibility struck the recommendations for state bar discipline --- this at the same time that a Spanish court "has opened formal criminal investigations into the suspected torture of a Spanish national held at Guantánamo," naming Yoo, Bibee, and Alberto Gonzales as the "intellectual authors" of that man's torture.

However, as noted by attorney Scott Horton, while the Justice Department has not sought state bar discipline, its memos may contain damning information describing "meetings inside the White House with [V.P. Cheney's] staff, in the course of which they are giving direct guidance to John Yoo and others exactly how this memo is to be written and what it is to provide, and everything they ask for and require John Yoo puts into the memo." This level of structured control over what went into the torture memos would be consistent with much of what Jane Mayer has to say about the dictatorial reign of Richard B. Cheney and David Addington in The Dark Side.

Was the latest Justice Department white-wash intended to shield Obama White House complicity in torture?

Had it stopped there; had the Feb. 2, 2010, news coverage on Democracy Now been limited to the President's decision to recklessly expand spending on the military-industrial complex, including the never-ending wars in Afghanistan and Iraq, to $741 billion; which includes "a $7 billion increase in nuclear spending despite a pledge to cut the US arsenal and seek a nuclear weapons-free world," even as the Labor Department is to experience a 32% cut in unemployment and stimulus spending; had the Democracy Now broadcast simply reported the deaths of 123 more civilians in predator drone strikes; had it done no more than recount that CIA operatives have been allowed to work for private firms, or that Maher Ahrar's attorneys had to file a petition to the U.S. Supreme Court seeking justice for the torture that innocent Canadian suffered as a direct result of Bush/Cheney's abominable "extraordinary rendition" practice; justice denied because it is opposed by Eric Holder's Department of Injustice, I probably would have refrained from writing this piece.

But the Democracy Now segment, "'America's Secret Afghan Prisons': Investigation Unearths New U.S. Torture Site, Abuse Allegations in Afghanistan," (video below) and The Nation magazine's, "America's Secret Afghan Prisons," by Anand Gopal, are so truly disturbing that they have shaken me to the core.

In a nutshell, if accurate, they reveal, as claimed by Scott Horton, that President Obama's Jan. 22, 2009, "executive order" to shut down the "secret prisons" was very carefully tailored so that it was only CIA black sites that were closed." They left open the same type of black sites under the Joint Special Operations Command (JSOC), according to Horton. "A major UN report on secret detention policies around the world concludes the practice could reach the threshold of a crime against humanity," according to Amy Goodman.

The Gopal article, if accurate, reflects an ongoing campaign of vicious night raids by U.S. special forces that would do the Gestapo proud. One entailed a raid on the home of "Majidullah Qarar, the spokesman for Afghanistan's agriculture minister," whose cousins, a baker and a man who simply sells carrots at a local bizarre, were gunned down without provocation, as U.S. forces barged into Qarar's home, while "terrified children lay glued to their beds." They ransacked the house, located a man, Rahman, a young Afghan government employee whom the U.S. military "suspected" of having al Qaeda connections; carted him off to a helicopter and then the first of a series of prisons. Part of a growing number of Afghans who have joined the ranks of the disappeared, Rahman has not been seen or heard from since, despite Qarar's connections inside the Afghan government.

The stories, if accurate, suggest that the Obama administration is up to its eyeballs in the same brutal techniques for which the Bush/Cheney regime has been, at least outside the confines of the U.S., universally condemned --- a conclusion that is further bolstered by a claim made by five U.S. citizens in custody in Pakistan, one of whom handed a note to a reporter which read, "Since our arrest, the US, FBI and Pakistani police have tortured us. They are trying to set us up... Help us." Per Amy Goodman, one of their lawyers claimed they were subjected to electric shock.

If true, one has to ask whether Obama had backed off his Constitutional duty to see that the laws be faithfully executed in order to shield himself from the same charges for torture he intended to carry out. If it turns out to be true --- and that is still a very big if --- the immediate legal course would be a Congressional investigation with an eye towards possible impeachment, to determine if the President was aware of these policies and condoned them in anyway, in violation of his oath of office and duty to the American people to uphold our laws and Constitution.

* * *

The 02/02/10 'Democracy Now! segment, "America's Secret Afghan Prisons": Investigation Unearths New U.S. Torture Site, Abuse Allegations in Afghanistan," follows below...

UPDATE 02/03/10:The U.S. military has now admitted that it is operating inside Pakistan as three U.S. soldiers were amongst ten people killed by a roadside bomb while the American soldiers were en route to a development project.


Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).

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This page contains a single entry published on February 3, 2010 2:01 PM.

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