|DOJ Watchdog 'Revising' Highly Critical Report On John Yoo's Legal Work|
|Written by Jason Leopold|
|Tuesday, 31 March 2009 00:00|
By Jason Leopold
|DOJ Watchdog 'Revising' Highly Critical Report On John Yoo's Legal Work|
|Written by Jason Leopold|
|Tuesday, 31 March 2009 00:00|
By Jason Leopold
No doubt can any longer exist that the United States has engaged in torture. Recently released chunks of a report by the International Commission of the Red Cross (ICRC) make it distressingly clear that our government has not only systematically tortured, but lied about it through barefaced denials: "We do not torture." As journalist Mark Danner, who leaked the report, points out: "The ICRC is the guardian of the Geneva Conventions, and when it uses those words"--words like torture or cruel and degrading--"they have the force of law." A strong prima facie case exists that war crimes of the worst order have been committed.
These crimes cannot be ignored without terrible consequences for our society. A Commission of Inquiry is now essential. The Commission, if it is to be effective, needs to be independent, nonpartisan and impartial. It needs to be composed of persons who are above the fray of politics and known for their ethical integrity. It needs the full cooperation of the executive branch. It probably also needs subpoena power. It should not grant blanket immunity, because its findings may well compel the Department of Justice to take action.
A Commission is no substitute for prosecution. The American people first deserve a full accounting of what has been done in their names. Yet without prosecution the future of the rule of law is in jeopardy. It would not be too much to say that the foundation of civilization is at stake, for torture is not just one issue among others. It is archetypal. It marks the clear bright line throughout history between civilization and barbarism, between dictatorship and constitutional government.
The time has come for our nation to engage in serious self-examination. The "secret" resort to torture has already corrupted our society. Once torture enters into a system, it is very hard to get it out. Torture always comes home. It does not remain confined to the remote corners of detention facilities in the war zone. It always returns to police stations, to state prisons, even to households. A young Presbyterian minister once told me that he had been trying to figure out all his life what had gone wrong with his father. Why was he always so violent and volatile at home? He eventually learned that in Vietnam his father had served in the Special Forces. After participating in the Phoenix Program involving CIA torture and assassinations, he was never the same.
Torture corrupts everything it touches. It corrupts the medical profession when, as Danner makes chillingly clear, torture doctors monitor the victim's vital signs so that pain can be inflicted to the breaking point without death. It corrupts the psychological profession when torture psychologists help "reverse engineer" techniques of abuse and recommend which ones will be effective. It corrupts the legal profession when torture lawyers draft government memos in torture's support and devise rationales for war crimes after the fact. It corrupts the media when craven journalists cannot call waterboarding by its proper name while consistently looking the other way. It corrupts the military by undermining the essentials of honor, professionalism and morale. It corrupts the "entertainment" industry by broadcasting forms of mass propaganda that glorify torturers, wonderfully transforming them from monsters into heroes. Not least, it corrupts our nation's religious communities, who by their silence and needless ignorance become torture's willing enablers.
As Rabbi Abraham Joshua Heschel insisted, while few may be guilty, all are responsible. We must all must take responsibility for our nation's lapse from dignity into torture, from the rule of law into unspeakable crimes. At every level of our common life, we need a season of repentance and renewal. In 1863 Abraham Lincoln called our nation to repentance, to a confession of national sins. Now more than ever we need to do this again. The United States must never again allow itself to be driven by blinding fears and bitter resentments in responding to national tragedy. In a dangerous world torture only undermines our security, while also corrupting our souls.
I think not:
|David Edwards and Stephen C. Webster|
the Raw Story Friday March 27, 2009
Is it any surprised that a man who spends free time making sculptures out of barbed wirestill does not believe his approval of torturing prisoners was wrong?
"I think history will be very kind to the President," said former Attorney General John Ashcroft, speaking recently at the University of Texas at Austin. "I don't have a mark on my conscience."
Speaking with former Nixon White House counsel John Dean on Thursday night, MSNBC's Keith Olbermann tried to make sense of Ashcroft's justification for signing off on waterboarding.
"There are things that you can call waterboarding that I am thoroughly convinced are not torture," said Ashcroft in a video shot by an attendee at the UT lecture. "There are things that you can call waterboarding that might be torture. And the point that ought to be understood is that throwing a term around recklessly for its emotional content doesn't really get you anywhere."
"Are there multiple forms of waterboarding that I don't know about? One that's legal and one that's illegal?" asked an incredulous Olbermann.
"Maybe this is a defense that John Yoo came up with, the memo hasn't been released yet, that says how much water you pour may make it waterboarding or not waterboarding," said Dean. "But, this is pretty silly, actually."
Olbermann wondered aloud whether Ashcroft had joined the Bush legacy tour and if this appearance was an attempt to soften the blow from allegedly pending memo dumps by the Obama Justice Department.
The first series of Bush-era memos to be released by the Obama administration pertained to legal justifications of torture that were rescinded in the final days of Bush's second term.
"These memos provide the very definition of tyranny," Constitutional law professor Jonathan Turley told Olbermann on March 5. "These memos include everything that a petty despot would want."
"General Ashcroft was read into these activities and did approve these activities...from the beginning, I believe, from the very beginning," Ashcroft's predecessor, Alberto Gonzales, told the Senate Judiciary Committee in July, 2007.
"... Must be great to go through life without a conscience or without embarrassment," concluded Olbermann.
This video is from MSNBC's Countdown, broadcast Mar. 26, 2009.
It's interesting to note the contrast when someone charges government complicity with torture in the United Kingdom, versus here in the United States.
Ever since Binyam Mohamed -- the Ethiopian-born Guantanamo detainee who claims he was tortured as part of the CIA's "extraordinary rendition" program (and whom I've written about previously here) -- was returned to Britain, his case has caused an uproar there because he claims that the British intelligence agents colluded with the United States government in his torture.
Today, Baroness Patricia Scotland QC -- said she would refer the evidence, both classified and not, to the police, to begin an investigation.
"I have expressed to the Commissioner the hope that the investigation can be taken forward as expeditiously as possible given the seriousness and sensitivity of the issues involved," she said ina statement released today.
Meanwhile, here in the United States, despite repeated calls for the attorney general to launch an investigation into the CIA's extraordinary rendition practices and the torture of detainees at Abu Ghraib, Bagram and Guantanamo Bay, Attorney General Eric Holder has equivocated (as has President Obama) and no such criminal investigation has begun. (The Senate Select Committee on Intelligence, on the other hand, is investigating the CIA's practices, as I've reported, but not for criminal culpability. And a previous Senate Armed Services Committee investigation, despitedamning results that orders for abusive and inhumane conduct came from the highest levels of the Bush administration, has likewise not led to a criminal investigation.)
When Mohamed and other torture victims brought their case to court by suing Jeppesen Dataplan, the private Boeing subsidiary that assisted the CIA perform renditions, the U.S. government moved to have their case dismissed.
As Glenn Greenwald at Salon has noted, nobody in the United Kingdom is making the Obama administration's argument -- that we ought to all look forward rather than backward. And it's not like the United Kingdom doesn't have an economic crisis of its own to deal with, too.
So why is the British prosecutor willing to look "backward" to find out whether crimes were committed, while we seem committed only to burying our heads deeper in the sand?
Published: Monday March 23, 2009
Lawyers have filed two court challenges against the Obama administration's treatment of Guantanamo detainees and its future plans for the men, most of whom have been held for years without trial.
One motion obtained by AFP on Monday was filed on behalf of Chinese Uighur, Huzaifat Parhat. He was among 17 Uighur ordered released by a US court in June seven years after their arrest, but who remain in detention at the remote US naval base at Guantanamo Bay, southern Cuba.
The lawyers filed a motion of contempt against Secretary of Defense Robert Gates denouncing his "continued refusal to comply with a final order" by a Washington appeals court to release Parhat, the document said.
The lawyers also demanded that a new court ruling should include "a threat of sanctions" in order to ensure Gates complies with the order to release Parhat.
The other lawsuit filed by about 15 inmates takes issue with new rules laid down by the administration of US President Barack Obama earlier this month justifying the state's right to hold terror suspects.
On March 13, the Justice Department said it was dropping the "enemy combatant" designation for terror suspects and vowed to apply international law to its detention policies. It said only those who "substantially supported" the Al-Qaeda network, Taliban Islamic militants or "associated forces" would be held under such laws.
But the detainees' lawyers downplayed the new policy as only a "partial retreat" from the positions held under the previous administration of former president George W. Bush.
"The conceptual approach they now advance has not greatly changed," they argued in the court filing.
They also lashed out at the government for justifying detaining suspects without charge or trial solely on the basis of a congressional decision authorizing the US-led "war on terror" after the September 11, 2001 attacks.
The political decision to hold suspects indefinitely without charge because they are deemed too dangerous to be free is a policy choice that under the US Constitution "must be resolved by Congress, not by the executive branch," they wrote.
On Friday, lawyers for 30 detainees filed a motion accusing the Obama administration of violating the Geneva Conventions in its treatment of the estimated 240 prisoners remaining at the controversial prison camp.
Obama has vowed to close the camp within the next 12 months, and has ordered individual reviews of the cases against each of the remaining prisoners.
Human Rights USA, the Center for Constitutional Rights and the American Civil Liberties Union are expected to make their case why the United States must prosecute former Bush administration officials for war crimes and grave violations of international law before the Inter-American Commission for Human Rights this afternoon in Washington.
At a special hearing, leaders of each organization will present evidence and testify about why the commission -- which is a body of the Organization of American States (and includes the United States) -- should issue a recommendation that the United States appoint a special prosecutor to investigate and prosecute war crimes such as torture and abuse of prisoners committed and authorized by senior U.S. officials in the Bush administration.
The International Committee of the Red Cross concluded in a secret report two years ago that the Bush administration's treatment of prisoners "constituted torture" in violation of the Geneva Conventions. The findings were based on interviews with prisoners once held in the CIA's secret black sites.
The revelation was made this weekend when the author and journalist Mark Danner published extensive excerpts of the Red Cross report in the New York Review of Books. In the article, Danner quotes from a speech President Bush delivered from the White House on September 6th, 2006. Danner writes the speech is "perhaps the only historic speech [Bush] ever gave." In it, Bush admitted the US was using what he called "an alternative set of procedures" to interrogate terrorism suspects.
Yesterday I spoke with Mark Danner about the secret Red Cross report he obtained and what it reveals about the Bush administration"s treatment of prisoners. Danner is a contributor to The New York Review of Books and is a Professor of Journalism at the University of California at Berkeley. He is the author of "Torture and Truth."
Mark Danner, contributor to the New York Review of Books. He is a professor of journalism at the University of California at Berkeley and a professor of human rights and journalism at Bard College. He is the author of Torture and Truth.
A review of a Berkeley law professor's memos to the White House about counterterrorism policies prompts calls for his job
By DAVID GLENN The Chronicle of Higher Education
The university, protesters shouted, should fire John C. Yoo, a tenured professor who has taught at the law school since 1993. While on leave at the U.S. Justice Department's Office of Legal Counsel between 2001 and 2003, Mr. Yoo drafted what have come to be known as the "torture memos" -- a series of secret memoranda that gave benediction to President George W. Bush's interrogation and surveillance policies.
Some scholars believe that Mr. Yoo's memoranda were so shoddy that they amounted to professional misconduct. Several of those critics also think that Mr. Yoo's academic job should be in jeopardy. But others -- including some who agree that Mr. Yoo's memoranda were pernicious -- argue that penalizing Mr. Yoo for his work in Washington could set a troubling precedent for academic freedom.
Now the debate over Mr. Yoo's presence at Berkeley has taken on new urgency. At the beginning of March, the government released several previously undisclosed memoranda by Mr. Yoo. And the Justice Department will soon complete a review of his conduct. According to a Newsweek report, the department might allege that Mr. Yoo improperly colluded with the White House to craft justifications for dubious counterterrorist policies. It could be the credible charge of misconduct that critics have been waiting for.
A Higher Standard
At the center of the storm sits Christopher Edley Jr., dean of Boalt Hall, who is fielding anxious phone calls from faculty members and students.
"The analogy on everyone's mind here is the McCarthy era, when professors were harassed and sometimes prosecuted for their outside political endeavors," Mr. Edley says. "That explains the attractiveness of a bright-line rule that requires an actual criminal conviction before a professor can be disciplined for outside work."
But Mr. Edley also says that a higher standard should apply to law professors and other instructors in professional schools. In those fields, Mr. Edley says, the university should investigate credible allegations of serious off-campus professional misconduct, even if a criminal conviction is nowhere in sight.
"Law professors, after all, are charged with preparing the next generation of professionals to live their lives according to our ethical canons," he says.
If the Justice Department's review includes serious allegations, Mr. Edley says, the university might be justified in formally reviewing Mr. Yoo's extracurricular activities. Such a move very likely would be triggered by the universitywide Academic Senate; the dean cannot initiate it. Mr. Edley emphasizes that he is speaking hypothetically, and he says that any punishment need not necessarily include revocation of tenure. The university's rules allow far milder sanctions, including written censure and a reduction in salary.
Former Department of Defense General Counsel Recommended Torture, Harsh Interrogation Techniques
San Francisco - The National Lawyers Guild San Francisco Bay Area Chapter (NLGSF) is filing a complaintwith the California State Bar today against former Department of Defense General Counsel William Haynes. The complaint against Haynes, who now works for the Chevron Corporation in San Ramon, states that he "breached his duty as a lawyer and advocated for harsh tactics amounting to torture in violation of U.S. and international law ... advocacy that directly lead to detainee abuses at the Guantanamo Bay and Abu Ghraib facilities."
While Congress debates whether senior Bush administration officials should be called to account for the torture, humiliation and indefinite detention of prisoners taken during the "war on terror," some of those prisoners aren't waiting around for lawmakers to make up their minds. A growing number of private lawsuits brought by former detainees against former Bush officials are slowly making their way through the courts. And to the dismay of some of its strongest supporters, the Obama administration has, in every case so far, taken the side of the Bush administration, arguing that these cases should all be dismissed.
Just reading through the disturbingInternational Red Cross report on torture under the Bush-Cheney regime, and the idea that anyone would argue against war crimes investigations is now ridiculous. Make sure you read all the way through the post. You'll come out the other sideknowing that Bush and Cheney deserve all that's coming to them. And so does notorious UC Berkeley Law Professor John Yoo. If it hadn't been for him, they could have never gotten away with it. It's unbelievable that Berkeley keeps him on staff. Just as unbelievable is what our country did in the so-called "War on Terror." -- Robert Gammon
43 pp., February 2007
We think time and elections will cleanse our fallen world but they will not. Since November, George W. Bush and his administration have seemed to be rushing away from us at accelerating speed, a dark comet hurtling toward the ends of the universe. The phrase "War on Terror"--the signal slogan of that administration, so cherished by the man who took pride in proclaiming that he was "a wartime president"--has acquired in its pronouncement a permanent pair of quotation marks, suggesting something questionable, something mildly embarrassing: something past. And yet the decisions that that president made, especially the monumental decisions taken after the attacks of September 11, 2001--decisions about rendition, surveillance, interrogation--lie strewn about us still, unclaimed and unburied, like corpses freshly dead.
Two years ago, my son Peter gave me a book entitled "The End of America." Its author, Naomi Wolf, issued a warning of how a dictator could take over our country "by invoking emergency decrees to close down civil liberties; creating military tribunals; and criminalizing dissent." Wolf described the "echoes" of such events in America. She made a plausible case that it could happen here. But when I read the book, I did not think so.
I had second thoughts when I found out that the groundwork was being laid for it to happen here by the "torture memos" written by John Yoo, a Justice Department lawyer in the Office of Legal Counsel (OCL) for former President George W. Bush. And I was shocked that all it would take is a government lawyer's made-to-order legal opinion, no matter how flawed, to a president bent on exercising dictatorial powers.
In another move that suggests the Obama Department of Justice is not making many big policy breaks with its predecessor when it comes to the legal rights of Guantanamo Bay detainees, the department filed a brief renewing the government's motion to dismiss the case of Rasul v. Rumsfeld.
The case is very similar to the lawsuit filed by U.S. citizen and former enemy combatant Jose Padilla against former Deputy Assistant Attorney General John Yoo, which I've been following.The plaintiffs in Rasul v. Rumsfeld allege that former Defense Secretary Donald Rumsfeld and other senior Bush officials are responsible for their torture; prolonged arbitrary detention; cruel, inhuman or degrading treatment; cruel and unusual punishment; denial of liberties without due process, and preventing the exercise and expression of their religious beliefs.
Thursday 12 March 2009
by: Jason Leopold, t r u t h o u t | Perspective
"Before we started discussing the issue on campus, as a result of the notoriety of Professor Yoo's visiting appointment, I would have said [torture is] never justifiable. But now I've become a little uncertain." - Chapman University President Jim Doti
Doti does not have an opinion on whether Yoo's memos adhered to the Constitution...
"I'm aware of the investigation, but I don't know very much about it."
The question has come up a lot lately, particularly since oral arguments last week in Jose Padilla's lawsuit against John Yoo made clear that the federal judge was taking the case very seriously. After all, it was a bit odd to see Barack Obama's Justice Department defending Yoo -- who Padilla's lawyers claim is responsible for their client being tortured in U.S. custody -- and urging the court to dismiss the case.
When the Center for Independent Media's own Ed Brayton put the question to me on his radio show last week, I had to admit I wasn't really sure of the answer. Like many people, I assumed that the government was required to defend a former employee being called to account for something he did while in government office. But does the DOJ always have to defend government employees, or are there limits? If that former employee has broken -- or at the very least twisted -- the law, can the Justice Department refuse?
I asked Justice Department spokesman Charles Miller yesterday, who responded by sending me a lengthy excerpt from the relevant section of the Code of Federal Regulations. (I'll spare you the seven pages of fine print.) The quick answer is, according to 28 C.F.R. § 50.15, a former federal employee "may be provided representation in civil, criminal and Congressional proceedings in which he is sued, subpoenaed, or charged in his individual capacity . . . when the actions for which representation is requested reasonably appear to have been performed within the scope of the employee's employment and the Attorney General or his designee determines that providing representation would otherwise be in the interest of the United States."
Having inherited an undifferentiated mass of legal "war on terror" doctrine from the Bush administration's constitutional chop shop, President Obama finds himself in the position of being Bush's Secret-Keeper. Picking its way warily through a minefield of secrecy and privacy claims, the Obama administration this week released nine formerly classified legal opinionsproduced in the Office of Legal Counsel (while holding back others that are being sought) andbrokered a deal whereby Karl Rove and Harriet Miers will finally testify about the U.S. attorney firings (but not publicly). Meanwhile, the administration clings to its bizarre decision to hold fast to the Bush administration's all-encompassing view of the "state secrets" privilege, and theNixonian view of executive power deployed to justify it. The Obama administration has also been quick to embrace the Bush view of secrecy in cases involving the disclosure of Bush era e-mails and has dragged its feet in various other cases seeking Bush-era records. If there is a coherent disclosure principle at work here, I have yet to discern it.
SAN FRANCISCO -- Lawyers for the Obama administration struggled on Friday to persuade a federal judge here to throw out an unusual civil lawsuit against John C. Yoo, the former government lawyer whose memorandums on torture were used by the Bush administration to justify sweeping policies on detention and interrogation.
Despite their efforts, the judge did not seem inclined to dismiss the lawsuit, which was brought by Jose Padilla, an American citizen who spent more than three years in isolation in a military brig as an enemy combatant.
The judge, Jeffrey S. White of Federal District Court, explored the arguments of Mr. Padilla's lawyers thoroughly, but he appeared to be skeptical of elements of the government's argument.
In fact, Judge White, who was appointed by President George W. Bush, even told the government's lawyers that Mr. Yoo's 2001 memorandum stating that the constitutional protections against unreasonable searches and seizures can be overridden was "a pretty scary position."
The case, of course, could go in any direction, and predictions of judges' rulings are often proved wrong. Nonetheless, the lawyers for Mr. Padilla left the courtroom smiling.
"We were very encouraged by the court's questions," said Hope Metcalf, a lawyer with the Allard K. Lowenstein International Human Rights Clinic at Yale Law School.
Mr. Yoo, a visiting faculty member at Chapman University Law School in Orange, Calif., did not attend the hearing.
The memos released by the Obama administration yesterday also include opinions written by Yoo, okaying warrantless wiretaps and the use of the US military against targets inside the United States. Yoo also authored the previously disclosed "Torture Memos," which authorized CIA and military interrogators to torture prisoners in Guantanamo Bay, Abu Ghraib, and elsewhere.
The Justice Deparmtent's Office of Professional Responsibility is finishing an internal investigation of Yoo and is expected to recommend disbarrment proceedings against him and other department lawyers who advocated that Bush be allowed to do essentialy whatever he wanted in the so-called "War on Terror." Bush then used the memos to justify his actions. Yoo is a tenured professor at Berkeley, who took a leave of absence to work for the Bush Justice Department from 2001 to 2003. Yoo has his law license from the state of Pennsylvania. If he's disbarred, it will further pressure UC Berkeley to fire him.
-- Robert Gammon
|DOJ Releases Previously Secret Legal Opinions Written By John Yoo|
|Written by Jason Leopold|
The Public Record
|Monday, 02 March 2009 12:25|
The Department of Justice today released two previously undisclosed Office of Legal Counsel (OLC) memoranda and seven previously undisclosed opinions many of which were written by John Yoo, the former OLC attorney who now teaches law at Chapman University in Orange, Calif.
The documents can be found here.
"Americans deserve a government that operates with transparency and openness," said Attorney General Eric Holder. "It is my goal to make OLC opinions available when possible while still protecting national security information and ensuring robust internal executive branch debate and decision-making."
The two memoranda memorialized that certain legal propositions in ten OLC opinions issued between 2001 and 2003 no longer reflected the views of OLC and "should not be treated as authoritative for any purpose." They further explained that some of the underlying opinions had been withdrawn or superseded and that "caution should be exercised" by the executive branch "before relying in other respects" on the other opinions that had not been superseded or withdrawn.
In light of the legitimate and substantial public interest in many of the questions raised in those opinions and in the evolution of OLC's views on those questions, the Department has released the six of those underlying opinions from 2001-2003 that are not classified and that had not previously been disclosed.
In November 2008, the Department filed a motion in a pending civil action to submit two of those underlying OLC opinions, along with one other, to the court under seal. The Department has determined that there is no longer any reason the three opinions should remain under seal and is therefore withdrawing its motion.
The legal opinions, many of which are explosive in the way in which it gave former President Bush broad, unreviewable war powers, are: