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Stephen Colbert on Chuck Todd and torture investigations

Amazingly, reports that Eric Holder is considering commencing an investigation into Bush-era torture crimes has created extreme consternation in multiple Beltway circles despite how narrow and limited those investigations would be.  As I wrote last week, numerous reports indicate that Holder wants to replicate the Abu Ghraib travesty by investigating only low-level interrogators who exceeded the torture limits approved by John Yoo and George Bush, and not investigate the high-level policy makers who instituted the criminal torture regime or the DOJ lawyers who authorized it. 

Since then, the Newsweek reporter who first printed what DOJ officials told him about Holder's intentions, Daniel Klaidman, confirmed in an interview on The Young Turks that Holder intends to confine any investigations only to "rogue" interrogators who exceeded John Yoo's torture permission slips while shielding high-level Bush officials who acted in accordance with Yoo's decrees.  Proving yet again that there is nothing more difficult than satirizing our rotted political culture, here is what I wrote about Holder's intentions last week:

Holder's plan, at least at the moment, is -- from the start -- to confine the prosecutors' authority to investigate to CIA agents who went beyond what John Yoo and George Bush decreed could be done ("he used more water than Yoo said he could"; "he tied him up for longer than Yoo authorized"; "the room was colder and the freezing water icier than Yoo allowed"). At least if these reports are accurate (and, for several reasons, that's unclear), anyone who "merely" did what John Yoo said was legal -- meaning everyone who matters -- will be shielded and immunized...

Read the complete Salon.com article here

A federal judge has ruled that John Yoo, a former Bush administration lawyer who wrote crucial memorandums justifying harsh interrogation techniques, will have to answer in court to accusations that his work led to a prisoner's being tortured and deprived of his constitutional rights. The government had asked Judge Jeffrey S. White of Federal District Court in San Francisco to dismiss the case filed by Jose Padilla, an American citizen who spent more than three years in a military brig as an enemy combatant. Judge White denied most elements of Mr. Yoo's motion and quoted a passage from the Federalist Papers that in times of war, nations, to be more safe, "at length become willing to run the risk of being less free."
http://tinyurl.com/mlgbpj

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/article.cgi?f=/c/a/2009/06/13/BAD5186LUA.DTL.

New York Times

April 19, 2009
Editorial

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 committed a "gross breach of medical ethics" by taking part in torture in Guantánamo, a leaked International Committee of the Red Cross document has revealed.

The 40-page confidential report, written in 2007, describes how medical staff working for the CIA monitored prisoners' vital signs to make sure they did not drown while being subjected to waterboarding, during which water is poured over a cloth placed over a person's nose and mouth.

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."

Today, London-based journalist and author of "The Guantanamo Files: The Stories of the 774 Detainees in America's Illegal Prison," releases the first definitive list of the 779 prisoners held in the United States prison of Guantanamo Bay, Cuba.

The list, which is the result of three years' research and writing about Guantánamo, provides details of the 533 prisoners who have been released, and includes, for the first time ever, accurate dates for their release. It also provides details of the 241 prisoners who are still held, including the 59 prisoners who have been cleared for release. Although some stories are still unknown, the stories of nearly 700 prisoners are referenced either by links to Andy's extensive archive of articles about Guantánamo, or to the chapters in "The Guantánamo Files"
where they can be found.

Andy Worthington underscores:

"It is my hope that this project will provide an invaluable research tool for those seeking to understand how it came to pass that the government of the United States turned its back on domestic and international law, establishing torture as official US policy, and holding men without charge or trial neither as prisoners of war, protected by the Geneva Conventions, nor as criminal suspects to be put forward for trial in a federal court, but as 'illegal enemy combatants.'

"I also hope that it provides a compelling explanation of how that same government, under the leadership of George W. Bush, Dick Cheney and Donald Rumsfeld, established a prison in which the overwhelming majority of those held -- at least 93 percent of the 779 men and boys imprisoned in total -- were either completely innocent people, seized as a result of dubious intelligence or sold for bounty payments, or Taliban foot soldiers, recruited to fight an inter-Muslim civil war that began long before the terrorist attacks of September 11, 2001, and that had nothing to do with al-Qaeda, Osama bin Laden or international terrorism."

Links to the list are included below:

Part 1 (ISNs 002 to 200):
http://www.andyworthington.co.uk/guantanamo-the-definitive-prisoner-list-part-1/

Part 2 (ISNs 201 to 496):
http://www.andyworthington.co.uk/guantanamo-the-definitive-prisoner-list-part-2/

Part 3 (ISNs 497 to 732):
http://www.andyworthington.co.uk/guantanamo-the-definitive-prisoner-list-part-3/

Part 4 (ISNs 743 to 10030):
http://www.andyworthington.co.uk/guantanamo-the-definitive-prisoner-list-part-4/

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THE WALL STREET JOURNAL
BY SIOBHAN GORMAN and EVAN PEREZ

MARCH 3, 2009

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.

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 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.

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."

By ANDREW O. SELSKY, Associated Press

John Yoo advocated the position that the terrorist attacks and the prospect of future attacks would require the military to be deployed inside the U.S., and that President Bush would "be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties."

On Tuesday, January 13th, 2009, House Judiciary Committee Chairman John Conyers released a 486-page report Tuesday that called for a wide-ranging probe into the Bush Administration's broad assertion of executive powers. In the report, Conyers referred to a previously unpublished Oct. 23, 2001 Justice Department memorandum authored by John Yoo and sent to then-White House Counsel Alberto Gonzales and Pentagon General Counsel William Haynes. The memo provided President George W. Bush with various scenarios that would allow him to sidestep Fourth Amendment protections against unreasonable searches and seizures.

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."
"We think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection," Yoo's memo stated. 

Continue reading here.

Dangerous Executive Orders

By David Swanson

2009-01-25

The Center for Constitutional Rights has expressed concern that President Obama's executive order banning torture may contain a loophole. But no president has any right to declare torture legal or illegal, with or without loopholes. And if we accept that presidents have such powers, even if our new president does good with them, then loopholes will be the least of our worries.

Torture is, and has long been, illegal in every case, without exception. It is banned by our Bill of Rights, the Universal Declaration of Human Rights, the Geneva Convention relative to the Treatment of Prisoners of War, the International Covenant on Civil and Political Rights, the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, and Title 18, U.S. Code, Section 2340A. Nothing any president can do can change this or unchange it, weaken it or strengthen it in any way.

Preventing torture does not require new legislation from Congress or new orders from a new president. It requires enforcing existing laws. In fact, adherence to the Convention Against Torture, which under Article VI of our Constitution is the supreme law of the land, requires the criminal prosecution of torturers and anyone complicit in torture.

Most of the seemingly noble steps taken by Congress in recent years and by President Obama in his first week have served to disguise the fact that torture always was, still is, and shall continue to be illegal.

In 2005, John McCain championed the McCain Detainee Amendment to the Defense Appropriations bill for 2005, which passed the Congress and was signed into law by President Bush. This was yet another law banning torture. It was not needed, but no harm done, right? Wrong. Passing laws like this serves to create the illusion that torture was previously legal. And that allows the new laws to create exceptions. In fact, McCain allowed a major loophole for the CIA. And that would have been bad enough. But President Bush tacked on a "signing statement" throwing out the entire ban on torture. So, with Congress trying to ban torture, and the president eliminating the ban, people could hardly be blamed for believing torture was legal.

President Bush also signed executive orders and ordered the creation of legal opinions claiming that torture was legal. President Obama's new order revokes one of Bush's. But Obama has no more right to undo the legalization of torture than Bush had to legalize it in the first place. Only Congress has or should have the power to legislate. Obama's new order requires adherence to laws, rather than claiming the right to violate them, and yet there is a wide gap between publishing an order requiring adherence to the laws and actually enforcing the laws by indicting violators.

The same order that President Obama uses to ban torture also orders the closure of all CIA detention facilities. Congress never authorized the creation of such things in the first place. Ordering their closure is the right thing to do. But if a president can give the order to close them, what is to prevent another president giving the order to reopen them? The answer should be all of the laws and treaties violated.

Obama's executive order largely orders the government to cease violating various laws. But in so doing, rather than strengthening the laws, the new president weakens them almost to the point of nonexistence. For, what power does a law have to control behavior if it is never enforced? What deterrent value can be found in a law the violation of which results merely in a formal order to begin obeying it? And what status are we supposed to give all the other violated laws for which no such formal orders have been given?

Rather than picking certain of Bush's unconstitutional executive orders or signing statements to revoke, leaving the others in apparent need of revocation, President Obama should simply announce that he will not give any consideration to any past orders or statements that claim the right to legalize the illegal. And the new attorney general should appoint a special prosecutor to indict and prosecute the previous president, vice president, and all top officials who violated laws.

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Source URL: http://www.afterdowningstreet.org/node/39276