The Law of Torture: February 2009 Archives

SUMMARY OF PRELIMINARY MEMORANDUM OF THE JUSTICE ROBERT H. JACKSON CONFERENCE ON FEDERAL PROSECUTION OF WAR CRIMINALS

February 23, 2009 12:21 PM | Permalink | TrackBacks (0)

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 DOJ Delays Responding to Request for Key OLC Memos Re Torture and Interrogation Policies

February 15, 2009 9:46 PM | Permalink | TrackBacks (0)

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."

"Middle Ground" to Confront and Resist the Continuance of Torture?

February 9, 2009 11:14 AM | Permalink | TrackBacks (0)

Leahy calls for commission to investigate Bush Justice Department

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.

Obama's Commitment to Torture

February 8, 2009 7:57 PM | Permalink | TrackBacks (0)

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.

The Torture Policies of the Bush Regime: Still Intact and Accelerating

February 8, 2009 7:44 PM | Permalink | TrackBacks (0)

More continuity than change on torture

John Stokes

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.

John Yoo's 2002 Memo: "[B]eyond malpractice" and "raises the specter that [acts of torture] were overlooked."

February 1, 2009 7:54 PM | Permalink | TrackBacks (0)

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."

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