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.

http://www.nytimes.com/2009/05/21/us/politics/21obama.html

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.

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/

Propelling prisoners' heads into concrete walls by means of towels wrapped around their necks, savage beatings with fists and rifles that left prisoners crippled, hanging prisoners by the arms with their arms strung up behind them, depriving prisoners of sleep for weeks on end, which has been thought the worst torture possible for 500 years, causing prisoners to freeze -- sometimes to death, and waterboarding are but a partial list of the torture methods ordered by America's highest officials. In the "Preliminary Memorandum of the Justice Robert H. Jackson Conference on Federal Prosecutions of War Criminals," law school Dean Lawrence Velvel, the founder of the Jackson Conference, details the full spectrum of tortures performed in wholesale combinations -- not one torture by itself -- on detainees around the world. His Preliminary Memorandum is a precursor to a formal legal complaint to be filed with the Justice Department this spring.

The Preliminary Memorandum identifies 31 culprits and details the war crimes they committed, the laws they broke, and the many fulsome warnings they received regarding their actions from numerous governmental lawyers and officials high and low, including the Judge Advocate Generals of all the armed services. The culprits who should be prosecuted include Bush, Cheney, Gonzales, Addington, Tenet, Bybee, Yoo, Haynes, Chertoff and others. Furthermore, the Preliminary Memorandum calls the Bush administration's illegal acts "an attempted constitutional revolution that succeeded for years." It began six days after 9/11, when Bush secretly gave the CIA permission to "murder . . . people all over the world." It continued in a series of secret, wholly specious legal memos authorizing torture, electronic eavesdropping, wholesale violations of law, and Presidential usurpation of the role of Congress.

Public pressure eventually forced the administration to declassify a few of the memos. These purported to authorize war crimes outlawed by the Geneva Conventions and U.S. anti-torture laws. Among them was John Yoo's infamous "torture memo" defining torture as "requiring the pain associated with organ failure or death," saying torture supposedly couldn't exist if the torturer wanted information, and urging that the President could do anything he wanted, including paying no attention whatever to Congressional laws. Meanwhile, Bush administration officials and lawyers ignored extensive warnings given them by government officials that they were engaging in criminal acts; the warnings were given both orally and in extensive memos.

Obama Must Not Ignore Abuses of Bush Era: Another Test Comes Tomorrow with the Case Against Jeppesen Dataplan

President Obama has failed an early test of his commitment to break with Bush administration policies by blocking the public disclosure of descriptions of torture and abuse suffered by a terror suspect. It's hard to tell if this is a wrongheaded effort to protect the Bush administration from embarrassment or if the Obama team is still just getting its footing. Let's hope it's the latter.

Binyam Mohamed was captured by U.S. and British intelligence officials in Pakistan in 2002, rendered to Morocco and is now a prisoner in Guantanamo Bay. All the charges against Mohamed have been dropped. He says that confessions were tortured out of him. But a statement provided by the United States to British intelligence about Mohamed's mistreatment won't be made part of an opinion by the British High Court because the Bush administration threatened to end intelligence-sharing if it was included. And the Obama administration is going along with that position.

How is it that Obama, who made a dramatic public showing of reversing the Bush administration's terror suspect treatment policies in his first days in office, would continue to use faux claims of national security to keep the public in the dark about the abuses inflicted on prisoners?

According to the British court, the disclosure would have involved "seven very short paragraphs amounting to about 25 lines," summarizing reports on Mohamed's treatment by the United States. The passages, the court said, would have given credence to Mohamed's allegations. There was no danger of compromising intelligence information, the court noted, as all names had been redacted from the documents.

This is not the way to fulfill a campaign promise to return us to the rule of law. What we did to Mohamed needs to be publicly acknowledged. Moving on does not mean covering up.

Another test comes on Monday, when oral arguments are scheduled in a case involving President Bush's rendition policy. The five men who brought suit, including Mohamed, were seized and removed to countries known to torture prisoners or to overseas secret CIA-run prisons -- a policy that CIA Director nominee Leon Panetta vowed to end in his confirmation testimony on Thursday. His claim the next day that he didn't know if rendition for the purpose of abusive interrogation was Bush administration policy is hardly credible and once again suggests Obama administration waffling.

The litigants suffered medieval tortures, including one who was deliberately cut all over and then had stinging liquid poured into his wounds. They are suing a subsidiary of Boeing Co., Jeppesen Dataplan, that allegedly arranged the flights.

The Ninth Circuit U.S. Court of Appeals is being asked to rule on the "state secrets privilege," a tactic that the Bush administration widely employed to avoid answering serious allegations of lawless conduct.

The Bush administration would simply claim that the suit jeopardizes "state secrets" and, like magic, the case would go away. The case Monday is an appeal of a federal district court's decision to dismiss the torture victims' suit on state secrets grounds.

We'll have to see whether the Justice Department under Attorney General Eric Holder continues to use this legal maneuver to avoid judicial review of the outrages against humanity committed during the Bush era. So far, the department has not given any indication it will alter its posture in the case.

When our government devastates the lives of human beings and acts in direct contravention of our laws and Constitution, it should not be allowed to hide from justice behind a shield of national secrets.

Federal judges are perfectly capable of reviewing classified evidence, and there are long-standing procedures to guard the nation's secrets in lawsuits. To suggest otherwise means that the executive branch can act with impunity whenever foreign intelligence matters are at issue.

In the Senate, the State Secrets Protection Act would end the blanket immunity the executive branch now claims under the state secrets privilege, and it would be comforting if Obama would throw his support behind it.

Obama is saying all the right things to put America back on the path of right. Now he has to follow up the talk with the walk.

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 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.

by Andy Worthington
January 12, 2009, The Huffington Post

Seven years ago, on January 11, 2002, when photos of the first orange-clad detainees to arrive at a hastily-erected prison at Guantánamo Bay, Cuba were made available to the world's press, defense secretary Donald Rumsfeld reacted to the widespread uproar that greeted the images of the kneeling, shackled men, wearing masks and blacked-out goggles and with earphones completing their sensory deprivation, by stating that it was "probably unfortunate" that the photos were released.

As so often with Rumsfeld's pronouncements, it was difficult to work out quite what he meant. He appeared to be conceding that newspapers like Britain's right-wing Daily Mail, which emblazoned its front page with the word "torture," had a valid point to make, but what he actually meant was that it was unfortunate that the photos had been released because they had led to criticism of the administration's anti-terror policies.

Rumsfeld proceeded to make it clear that he had no doubts about the significance of the prisoners transferred to Guantánamo, even though their treatment was unprecedented. They were, in essence, part of a novel experiment in detention and interrogation, which involved being held neither as prisoners of war nor as criminal suspects but as "enemy combatants" who could be imprisoned without charge or trial. In addition, they were deprived of the protections of the Geneva Conventions so that they could be coercively interrogated, and then, when they did not produce the intelligence that the administration thought they should have produced, they were -- as a highly critical Senate Armed Services Committee report concluded last month -- subjected to Chinese torture techniques, taught in U.S. military schools to train American personnel to resist interrogation if captured.

But none of this mattered to Donald Rumsfeld. "These people are committed terrorists," he declared on January 22, 2002, in the same press conference at which he spoke about the photos. "We are keeping them off the street and out of the airlines and out of nuclear power plants and out of ports across this country and across other countries." On a visit to Guantanamo five days later, he called the prisoners "among the most dangerous, best-trained, vicious killers on the face of the earth."

Seven years after Guantanamo opened, it should be abundantly clear that neither Rumsfeld nor Vice President Dick Cheney, President Bush or any of the other defenders of Guantanamo who indulged in similarly hysterical rhetoric, had any idea what they were talking about.

Continue reading Worthington's Seven Years of Guantanamo, Seven Years of Torture and Lies.

Bush says torture still necessary
David Edwards and Andrew McLemore

With days left in office and an abysmal approval rating, President Bush is still defending the use of torture.

In an interview on Fox News, Bush told Brit Hume that he approved enhanced interrogation tactics for suspected terrorists like Khalid Sheikh Mohammed.

"My view is the techniques were necessary and are necessary," Bush said.

The Bush administration has faced scathing criticism from those who say waterboarding and other enhanced interrogation tactics approved by Bush to be torture.

The president disagreed with notion that such tactics amount to torture.

"I firmly reject the word 'torture,'" Bush said.

The Bush administration helped create an unclear legal landscape (at best) as to whether waterboarding was outlawed.

President-elect Barack Obama rejects the Bush administration's equivocations about waterboarding, however.

"Vice President Cheney, I think, continues to defend what he calls extraordinary measures or procedures when it comes to interrogations and from my view waterboarding is torture," Obama said.

Are US Officials Guilty of War Crimes?
by Andy Worthington

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.

Cheney Admits to Approving Torture
by Carol Jensen

While President Bush and his little band of accomplices have hit the television circuit in a futile attempt at a last-minute revamping of his disastrous presidency, the other half of this destructive-duo, Dick Cheney, has taken a totally different approach that might be labeled the in-your-face confession exit interviews.

Cheney, on ABC News, confessed openly that he took part in ordering aggressive interrogation techniques including waterboarding. It appears that the vice president, in his personal quest to transform his office as outlined by the Constitution, has gone over the edge when it comes to America's tradition that no one is above the law and has placed himself in a position that he certainly should not be bragging about on national television.

During the ABC News interview, Cheney was asked directly about the torture technique known as waterboarding. He replied that, "I was aware of the program, certainly, and involved in helping get the process cleared." He was adamant in his belief that waterboarding was a valid method of interrogation that was appropriate to use on terrorism suspects. This indeed presents a strange twist for the Bush Administration in that they have repeatedly stated that they have not tortured anyone.

But of course Vice President Cheney refuses to acknowledge that courts in the United States of America, where the rest of us live, have long held that waterboarding is in fact defined as torture. Waterboarding is an outlawed interrogation technique where water is poured into someone's nose and mouth until he or she nearly drowns. The federal War Crimes Act does in fact define torture of this sort as a war crime punishable by life imprisonment or even the death penalty if the victim happens to die during a torture session.

Under U.S. law, anyone can and should be held accountable, even the vice president, if he knew that any one of his subordinates did or might commit a war crime and he failed to act to prevent or stop that act from taking place.

Cheney's recent comments are the first in which he has directly acknowledged that he personally played a pivotal role in approving the CIA's use of numerous and controversial interrogation techniques after Sept. 11. Cheney almost seemed proud of his participation with CIA operatives when he said that the CIA officials "in effect came in and wanted to know what they could and couldn't do. They talked to me, as well as others, to explain what they wanted to do. And I supported it," as was reported by the Associated Press.

The vice president needs to be reminded that torture has been banned by both international treaties, which the United States signed on to (the Geneva Conventions), as well as by the aforementioned United States law, which has with good foresight included torture bans in the United States Criminal Code.

Is Dick Cheney now vocalizing in public the fact that orders to torture in the ongoing "war on terror" came from the top down, and were not merely perpetrated by a small group of rogue underlings as the public was initially led to believe? Is the vice president making it imperative that President Bush should include his name on the list of those to be preemptively pardoned before he leaves office on Jan. 20? The American public does not have long to wait before we find out. The fact that Cheney has contradicted the president so openly makes one wonder what else he could possibly have on his mind.

Attorney General Michael Mukasey insists that there is no need for Bush to pardon anyone because there is no evidence that anyone developed the policies "for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful." But as Lt. Gen. Antonio Taguba, who investigated the Abu Ghraib scandal, said, "There is no longer doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account," as was reported by Marjorie Cohn at Common Dreams.

The actions taken during the Bush-Cheney Administration have not, in fact, as the vice president claimed in his ABC News interview, destroyed al Qaeda and saved American lives, but rather have had quite the opposite effect. Al Qaeda numbers have grown and attacks on U.S. troops increased. And the intelligence community has for decades known that information obtained during torture sessions is unreliable at best. Never mind that torture is a war crime.