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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.
by Andy Worthington
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Will the Bush administration be held accountable for war crimes? The answer ought to be yes, if the verdict of the Senate Armed Services Committee Inquiry into the Treatment of Detainees in US Custody is to mean anything. The bipartisan report, released on December 11 by senators Carl Levin and John McCain, concluded that the torture and abuse of prisoners was the direct result of policies authorized or implemented by senior officials within the current administration, including President George W. Bush, former Defense Secretary Donald Rumsfeld, and Vice President Dick Cheney's former legal counsel (and now chief of staff) David Addington.
Since the scandal of the abuse of prisoners at Abu Ghraib prison in Iraq broke in April 2004, over a dozen investigations have identified problems concerning the treatment of prisoners in Iraq, Afghanistan and Guantanamo, but until now no official report has looked up the chain of command to blame senior officials for authorizing torture and instigating abusive policies. The Bush administration has been able to maintain, as it did in the wake of the Abu Ghraib scandal, that any abuse was the result of the rogue activities of "a few bad apples."
This is now untenable. As the report states: "The abuse of detainees in US custody cannot simply be attributed to the actions of 'a few bad apples' acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees. Those efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority."
Though containing little new information, the report is damning in its revelation of how senior officials sought out and approved the reverse engineering of techniques taught in the US military's SERE schools (Survival, Evasion, Resistance, Escape) for use on prisoners captured in the "war on terror." These include "stripping detainees of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures." In some circumstances, the measures also included waterboarding, a notorious torture technique which involves controlled drowning.
After noting that these techniques were taught to train personnel "to withstand interrogation techniques considered illegal under the Geneva Conventions," and that they are "based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions," the authors laid out a compelling timeline for the introduction of the techniques, beginning with a crucial memorandum issued by Bush on February 7, 2002. This stated that the protections of the Geneva Conventions, which the authors noted "would have afforded minimum standards for humane treatment," did not apply to prisoners seized in the "war on terror."
Having
established Bush's role as the initial facilitator of abuse, the report
then implicated those directly responsible for implementing torture,
explaining how Pentagon general counsel William J. Haynes II began
soliciting advice from the agency responsible for SERE techniques in
December 2001, and how Addington, Justice Department legal adviser John
Yoo, and White House counsel Alberto Gonzales attempted to redefine
torture in the notorious "Torture Memo" of August 2002. The memo
claimed that the pain endured "must be equivalent to the pain
accompanying serious physical injury, such as organ failure, impairment
of bodily function, or even death."
The authors also noted how Rumsfeld approved the use of SERE techniques at Guantanamo in December 2002 (after Haynes had consulted with other senior officials), and explained how the techniques migrated to Afghanistan in January 2003, and were implemented by Lieutenant General Ricardo Sanchez, the commander of coalition forces in Iraq, in September 2003.
Even so, the report is not without its faults. The authors carefully refrained from ever using the words "torture" or "war crimes," which is a considerable semantic achievement, but one that does little to foster a belief that the officials involved will one day be held accountable for their crimes. They also, curiously, omitted all mention of Vice President Dick Cheney, and ignored the importance of the presidential order of November 2001, which authorized the capture and indefinite detention of "enemy combatants," even though Barton Gellman of The Washington Post has established that Cheney played a significant role in this and all the other crucial documents that led to the torture and abuse of detainees.
Responses in the US media have been mixed. Oddly, most major media outlets chose to focus solely on Rumsfeld's responsibility for implementing abusive techniques. More thoughtful commentators have questioned whether Barack Obama would pursue those responsible, noting that he will be unwilling to antagonize Republicans, whose support he needs to tackle the economic crisis, and that many Democrats in Congress knew about the administration's policies, and in some cases were involved in approving them. A recent article in The Nation noted that such complicity made "an unfettered review seem unlikely," but the article also noted, more hopefully: "A growing body of legal opinion holds that Obama will have a duty to investigate war crimes allegations and, if they are found to have merit, to prosecute the perpetrators."
As of December 17, those concerned with pursuing Bush administration officials for war crimes can at least be assured that the perpetrators now include Cheney. In an interview with ABC News, the vice president stuck to a now-discredited script, declaring "we don't do torture, we never have," but admitted for the first time that he knew about the use of waterboarding on a handful of "high-value detainees," and that he considered its use in their cases "appropriate."
Only time will tell if Cheney's admission will be regarded as a stalwart defense of national security, or as the last defiant gesture of a war criminal.
Huzaifa Parhat, a fruit peddler, has been imprisoned at Guantánamo Bay Detention Center for the last seven years. He is not a terrorist. He's a mistake, a victim of the war against al Qaeda. An interrogator first told him that the military knew he was not a threat to the United States in 2002. Parhat hoped he would soon be free, reunited with his wife and son in China. Again, in 2003, his captors told him he was innocent. Parhat and 16 other Uighurs, a Muslim ethnic minority group, were living in a camp west of the Chinese border in Afghanistan when the U.S. bombing campaign against the Taliban destroyed the village where they were staying. They fled to Pakistan, but were picked up by bounty hunters to whom the U.S. government had offered $5,000 a head for al Qaeda fighters.
The Uighurs were officially cleared for release in 2004, but they remain at Guantánamo. They cannot be repatriated to China, because they might be tortured, and no other country will take them. The U.S. government does not want to allow them into the United States for fear of setting a precedent that might open the door for detainees it still considers dangerous. In 2006, after again being told that they were innocent, and becoming desperate, some of the Uighurs began mouthing off to their captors. They were sent for a time to Camp Six, a $30-million "supermax" prison for holding al Qaeda suspects in isolated cells.
In the tomb-like confines of this concrete prison, some of them began to crack up, says P. Sabin Willett '79, J.D. '83, a Boston-based attorney with Bingham McCutchen, the firm that has represented the Uighurs pro bono since 2005. "The Department of Defense has studied what happens to human beings when they are left alone in spaces like this for a long time and it is grim," Willett notes. "The North Koreans did this to our airmen in the 1950s. The U.S. ambassador to the United Nations went to the floor of the General Assembly and denounced the practice as a step back to the jungle."
Continue reading The War and the Writ: Habeus Corpus and Security in an Age of Terrorism.
Like all other human organizations, the United States has a less than pure record on human rights. The same U.S. founding documents that set some souls soaring with language of universal rights also enslaved other human beings and defined them as property, while also excluding the female majority of the population entirely. We the people have spent the last 232 years working to live up to the best and undo the worst of those founding documents.
Whatever one thinks of Barack Obama, Sarah Palin or Hillary
Clinton, the 2008 presidential election campaign was a historic move to
open up our political life and leadership to all. Eleanor Roosevelt was
no starry-eyed idealist. As a woman, an advocate for the poor and the
wife of a man with a disability, she knew that U.S. rhetoric on human
rights often did not match reality. Lest she forget it, the Soviet and
other Communist delegates to the United Nations continually reminded
her. As she recounted it, they would point out some failure of human
rights in the United States and ask, "'Is that what you consider
democracy, Mrs. Roosevelt?' And I am sorry to say that quite often I
have to say, 'No, that isn't what I consider democracy." [...]
In light of recent federal court decisions, Human Rights Watch stated: "[T]he courts have restored checks and balances to U.S. government detentions." However, the courts ability to rule on the Bush Regime's "unchecked authority to detain" does not ensure that the U.S. will stop the widespread use of torture as a tool for endless war.
Obama's nomination of Eric Holder as the first Black Attorney General of the United States raises serious concerns the continuance of torture. In January 2002, Holder stated that individuals captured in the "war on terror" are not entitled to even the most minimum protections under the Geneva Conventions. However, Holder also argued that detainees should be treated humanely only because (1) doing so would be important in how U.S. captured troops were treated, and (2) it is in U.S. interests to do so to prevent further diminishing of its standing in the world. This position, also advocated by Rumsfeld and John Yoo, on behalf of the Bush Administration, was struck down by the Supreme Court in 2006 in Hamdan v. Rumsfeld. Holder's response to the decision shortly therafter in his speech to the American Constitution Society: "It was disgraceful that the Supreme Court had to order the President to treat detainees in accord with the Geneva Convention."
While it has been stated that Holder has spoken out on the Bush Administration's policy regarding torture, his positions have legitimized, defended, and served as an apologist for extremism in which human lives are expendable.
It is also important to consider how Holder's position on indefinite detentions, one that espouses that individuals can be detained until the war is over "if that is ultimately what [the U.S.] wanted to do," has also been used to justify the use of John Yoo's definition of torture, whether the Executive Branch has declared a state of emergency or not. Holder asserted: "We had the Vietnam War, we had World War II, people were captured during the course of that war were not repatriated until the conclusion of the conflict. So, it's possible they could be there for an extended period of time," negligently and recklessly failing to mention the war crimes and crimes against humanity of U.S. torture in this historical trajectory that locates the U.S.'s position in the world today.
Legal authority states that every human being has the most basic right not to be tortured. There are no exceptions under which this right against torture may be abrogated, no legal justification or evidence that validates the use of torture, and no moral debate that allows for the perpetuation of torture. However, torture practices continue due to the purposeful misrepresentation of anti-torture policies and disregard for law that preserves fundamental human needs. At the heart of these torture violations are those in the highest positions of governmental power that have led the most egregious assaults on human lives during our times, in flagrant violation of legal principles enacted after World War II. This shift can be clearly seen in the U.S.'s institutionalizing the legality of torture, which has transformed a lawless state into, as Amy Bartholomew has stated, "an empire's law that is a form of unilaterally constituted and imposed illegitimate and unaccountable rule by a global power that attempts to perform the role of a global sovereign, declaring itself to be able to set the exception."
This administration did more than commit crimes. It waged war against the law itself. It transformed the Justice Department into a vehicle for voter suppression, and it also summarily dismissed the U.S. attorneys who attempted to investigate its wrongdoing. It issued wartime contracts to substandard vendors with inside connections, and it also defunded efforts to police their performance. It spied on church groups and political protestors, and it also introduced a sweeping surveillance program that was so clearly illegal that virtually the entire senior echelon of the Justice Department threatened to (but did not in fact) tender their resignations over it. It waged an illegal and disastrous war, and it did so by falsely representing to Congress and to the American public nearly every piece of intelligence it had on Iraq. And through it all, as if to underscore its contempt for any authority but its own, the administration issued more than a hundred carefully crafted "signing statements" that raised pervasive doubt about whether the president would even accede to bills that he himself had signed into law.
No prior administration has been so systematically or so brazenly lawless. [...] Indeed, in weighing the enormity of the administration's transgression against the realistic prospect of justice, it is possible to determine not only the crime that calls most clearly for prosecution but also the crime that is most likely to be successfully prosecuted. In both cases, that crime is torture.
There can be no doubt that torture is illegal. There is no wartime exception for torture, nor is there an exception for prisoners or "enemy combatants," nor is there an exception for "enhanced" methods. The authors of the Constitution forbade "cruel and unusual punishment," the details of that prohibition were made explicit in the Geneva Conventions ("No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever"), and that definition has in turn become subject to U.S. enforcement through the Uniform Code of Military Justice, the U.S. Criminal Code, and several acts of Congress. [...]
Nor can there be any doubt that this administration conspired to commit torture: Waterboarding. Hypothermia. Psychotropic drugs. Sexual humaliation. Secretly transporting prisoners to other countries that use even more brutal techniques. The administration has carefully documented these actions and, in many cases, proudly proclaimed them. [...]
Finally, there can be no doubt that the administration was aware of the potential criminality of these acts. In January 2002, White House lawyers began generating a series of memos outlining the administration's motivation for torturing. They claimed that "the war against terrorism is a new kind of war" requiring an enhanced "ability to quickly obtain information from captured terrorists" and that "this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners." [...]
Waterboarding is far from the worst that detainees have suffered under U.S. supervision. Its use is especially worthy of note, however, because it is universally understood that 1) the administration authorized waterboarding, and 2) waterboarding is a serious crime. [...]
Open criminality is a cancer on democracy. It implicates all who know of the conduct and fail to act. Such compliance presents a practical crisis, in that a government that is allowed to torture will inevitably transgress other legal limits. [...][This] ha[s] little to do with a perceived benefit from the use of torture in interrogation. To the contrary, the very criminality of the act ha[s] a talismanic difference. It assert[s] the primacy of the will of the torturer. It ma[kes] a claim, for all to accept or reject, that the ruler is the law. [...]
Reasserting the rule of law is no simple matter. A new administration may--or may not-- bring an end to open torture in the United States, but it will not bring an end to our knowledge and acceptance of what has already taken place. If the people wish to maintain sovereignty, they must also reclaim responsibility for the actions taken in their name. As of yet, they have not. Pursuing the Bush Administration for crimes long known to the public may amount to a kind of hypocrisy, but it is a necessary hypocrisy. The alternative, simply doing nothing, not only ratifies torture; it ratifies the failure of the people to control the actions of their government. [...]
By Frank Rich, The New York Times. Posted to AlterNet July 14, 2008.
Top Bush hands are starting to get sweaty about where they left their fingerprints on U.S. torture policies...
So hot is the speculation that war-crimes trials will eventually follow in foreign or international courts that Lawrence Wilkerson, Colin Powell's former chief of staff, has publicly advised Mr. Feith, Mr. Addington and Alberto Gonzales, among others, to "never travel outside the U.S., except perhaps to Saudi Arabia and Israel."
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Press Release: Massachusetts School Of Law 17/06/08 "ICH" -- - A conference to plan the prosecution of President Bush and other high administration officials for war crimes will be held September 13-14 at the Massachusetts School of Law at Andover . "This is not intended to be a mere discussion of violations of law that have occurred," said convener Lawrence Velvel, dean and cofounder of the school. "It is, rather, intended to be a planning conference at which plans will be laid and necessary organizational structures set up, to pursue the guilty as long as necessary and, if need be, to the ends of the Earth." "We must try to hold Bush administration leaders accountable in courts of justice," Velvel said. "And we must insist on appropriate punishments, including, if guilt is found, the hangings visited upon top German and Japanese war-criminals in the 1940s." Velvel said past practice has been to allow U.S. officials responsible for war crimes in Viet Nam and elsewhere to enjoy immunity from prosecution upon leaving office. "President Johnson retired to his Texas ranch and his Defense Secretary Robert McNamara was named to head the World Bank; Richard Nixon retired to San Clemente and his Secretary of State Henry Kissinger was allowed to grow richer and richer," Velvel said. He noted in the years since the prosecution and punishment of German and Japanese leaders after World War Two those nation's leaders changed their countries' aggressor cultures. One cannot discount contributory cause and effect here, he said. "For Bush, Richard Cheney, Donald Rumsfeld, and John Yoo to spend years in jail or go to the gallows for their crimes would be a powerful lesson to future American leaders," Velvel said. The conference will take up such issues as the nature of domestic and international crimes committed; which high-level Bush officials, including Federal judges and Members of Congress, are chargeable with war crimes; which foreign and domestic tribunals can be used to prosecute them; and the setting up of an umbrella coordinating committee with representatives of legal groups concerned about the war crimes such as the Center for Constitutional Rights, ACLU, National Lawyers Guild, among others. The Massachusetts School of Law at Andover was established in 1988 to provide an affordable, quality legal education to minorities, immigrants and students from low-income households that might otherwise be denied the opportunity to obtain a legal education and practice law. Its founder, Dean Velvel, has been honored by the National Law Journal and cited in various publications for his contributions to the reform of legal education. Further information Jeff Demers at demers@msl.edu 978) 681-0800; or Sherwood Ross, media consultant to MSL, at sherwoodr1@yahoo.com |
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ON THE LAW OF TORTURE...
The President's Executioner
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