State Torture: February 2009 Archives

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.

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.

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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."

    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."

    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.

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    About this Archive

    This page is a archive of entries in the State Torture category from February 2009.

    State Torture: January 2009 is the previous archive.

    State Torture: March 2009 is the next archive.

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