Meanwhile in a second case in the 9th Circuit Court, the Obama administration has increased its defense of secrecy surrounding an alleged CIA program of torture flight, http://www.sfgate.com/cgi-bin/
New York Times
April 19, 2009
The Torturers' Manifesto
To read the four newly released memos on prisoner interrogation written by George W. Bush's Justice Department is to take a journey into depravity.
Their language is the precise bureaucratese favored by dungeon masters throughout history. They detail how to fashion a collar for slamming a prisoner against a wall, exactly how many days he can be kept without sleep (11), and what, specifically, he should be told before being locked in a box with an insect -- all to stop just short of having a jury decide that these acts violate the laws against torture and abusive treatment of prisoners.
In one of the more nauseating passages, Jay Bybee, then an assistant attorney general and now a federal judge, wrote admiringly about a contraption for waterboarding that would lurch a prisoner upright if he stopped breathing while water was poured over his face. He praised the Central Intelligence Agency for having doctors ready to perform an emergency tracheotomy if necessary.
These memos are not an honest attempt to set the legal limits on interrogations, which was the authors' statutory obligation. They were written to provide legal immunity for acts that are clearly illegal, immoral and a violation of this country's most basic values.
Medical personnel were also said to be present when prisoners were shackled in a "stress standing position". The detainees were "monitored by health personnel who in some instances recommended stopping the method of ill-treatment, or recommended its continuation, but with adjustments", according to the report.
The Red Cross concluded: "The alleged participation of health personnel in the interrogation process and, either directly or indirectly, in the infliction of ill-treatment constituted a gross breach of medical ethics and, in some cases, amounted to participation in torture and/or cruel inhuman or degrading treatment."
WASHINGTON -- The Central Intelligence Agency destroyed 92 videotapes from the agency's detainee interrogation program, a far larger number than previously believed, the Justice Department said in a court filing Monday.
The disclosures in a New York federal court case marked the first major step by President Barack Obama's administration to reveal details of the controversial detention program approved by the Bush White House after the terrorist attacks of Sept. 11, 2001.
The Obama administration is still uncertain about how to pursue allegations of wrongdoing against officials in the Bush administration. CIA Director Leon Panetta said last week he opposed prosecuting CIA officers who followed legal advice in putting suspects through such tactics as waterboarding, a form of simulated drowning that the Obama administration labeled torture.
At the same time, Mr. Obama is making significant breaks with the past, including the move Monday to disclose long-secret information. The government made the disclosures in response to a lawsuit filed by the American Civil Liberties Union seeking details of the CIA program.
"We want to give the people that work in the CIA the tools they need to keep us safe, but do so in a way that also protects our values," said White House spokesman Robert Gibbs.
The Justice Department on Monday released memorandums that had laid the groundwork for the Bush administration's broad assertion of presidential power, overriding congressional oversight, international treaties and constitutional freedoms.
In one memo, Department of Justice lawyers said the president could order the U.S. military to mobilize domestically to combat terrorism, in contravention of laws that generally prohibit such use of the military on U.S. soil. Other memos described the president's power to conduct surveillance without court warrants.
Many of the legal opinions were written by John C. Yoo, a former official in the Justice Department's Office of Legal Counsel, and now a professor at the University of California, Berkeley. The Obama administration is defending Mr. Yoo and other former Bush officials who are being sued over their national-security legal work. In an October 2001 memo, Mr. Yoo asserted that "the president has both the constitutional and statutory authority to use the armed forces in military operations, against terrorists within the United States." He added that such a move wouldn't be subject to Fourth Amendment restrictions on unreasonable searches and seizures so long as they are acting in a military, not law-enforcement, function.
The government also released memos from the final months of the Bush administration that renounced the legal reasoning of the early post-9/11 period. In one October 2008 memo, a top Justice official called earlier opinions "either incorrect or highly questionable."
Continue reading here.
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.
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
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."
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.
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 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.
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."
Eleven days after 9/11, John Yoo, a former deputy in the Justice Department's Office of Legal Counsel, drafted a 20-page memorandum that offered up theories on how the Bush administration could sidestep Fourth Amendment protections against unreasonable searches and seizures in the event the U.S. military used "deadly force in a manner that endangered the lives of United States citizens."
Yoo came up with a number of different scenarios. He suggested shooting down a jetliner hijacked by terrorists; setting up military checkpoints inside a U.S. city; implementing surveillance methods far more superior than those available to law enforcement; or using military forces "to raid or attack dwellings where terrorists were thought to be, despite risks that third parties could be killed or injured by exchanges of fire," says a copy of the little known Sept. 21, 2001 memo.
Yoo is the author of an August 2002 legal opinion, widely referred to as the "Torture Memo," that gave interrogators the legal authority to use brutal methods against suspected terrorists.
He drafted the Sept. 21, 2001 memo in response to a question posed by Timothy E. Flanigan, the former deputy White House counsel, who wanted to know "the legality of the use of military force to prevent or deter terrorist activity inside the United States,'' according to a copy of Flanigan's memo.Yoo wrote that his ideas would likely be seen as violating the Fourth Amendment. But he said the terrorist attacks on 9/11 and the prospect that future attacks would require the military to be deployed inside the U.S. meant President Bush would "be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties."