Both Emptywheel at Firedoglake and Glenn Greenwald at Salon.com have done a stellar job tracking the Cheneyesque descent (H/T EW) of the Obama Justice Department when it comes to the question of executive privilege over classified material, especially when it comes to the courts. We already have witnessed the spectacle of the U.S. pressuring a British court on the suppression of documents in the Binyam Mohamed case.
As the Guardian reports it, "UK officials provided the CIA with information used in Mohamed's interrogation in Morocco, where he says he was tortured." For all the frenzied attempt to hide secrets, demands for an investigation grow in Britain.
Ministers yesterday came under increased pressure to set up an independent inquiry into the role of British security and intelligence agents in the US practice of rendering terror suspects to foreign prisons to be secretly and inhumanely interrogated.Back in the U.S., it's a similar story. In the al-Haramain case, now in the Ninth Circuit Court of Appeals in San Francisco under Judge Vaughn Walker, an Islamic charity was targeted as "terrorist" and subjected to warrantless wiretapping... or was it that it was caught up in a data-mining sweep under illegal mass surveillance and a "terrorist" case built out of whole cloth? We can't be sure, and partly because the government won't release its documents, and al-Haramain's suit cannot go forward. It's even stranger when the primary document, a log of calls, was initially and mistakenly released to the plaintiffs, who returned it, and now can't get it back in order to pursue their case.
The Quest for Unlimited Executive Power Under Two Administrations
The position taken by the Department of Justice in the latest filing in the case is Bush/Cheney/Ashcroft-Gonzalez-kind outrageous, making preposterous assertions about executive power. Greenwald caught the situation perfectly:
The brief filed by Obama on Friday afternoon (.pdf) has to be read to believed. It is literally arguing that no court has the power to order that classified documents be used in a judicial proceeding; instead, it is the President -- and the President alone -- who possesses that decision-making power under Article II, and no court order is binding on the President to the extent it purports to direct that such information be made available for use in a judicial proceeding....The twistings and turnings of the al-Haramain case are being reported and dissected in excruciatingly minute but important detail by Emptywheel and her cohort of experts over at FDL, and the reader is kindly directed there to hear the latest news, e.g., "On Friday, Obama's DOJ submitted four new declarations--presumably to correct the 'inaccurate' information provided in May 2006." What might that "inaccurate" information be? Head on over to EW at FDL and see what the cognoscenti think.
... after a few symbolic (and potentially important) decrees in the first week, which I praised at the time -- the Obama administration's approach to civil liberties, constitutional protections and the reining in of executive power abuses has been absolutely abysmal. None of this has anything to do with complaints that he hasn't yet done enough. It's the opposite: these are all affirmative, even extraordinary, actions undertaken by the Obama DOJ not merely to copy, but in the Al-Haramain case, virtually to surpass, the worst aspects of the Bush/Cheney/Addington use of extreme secrecy and assertions of unlimited executive power.
Did I say "Two"? I Meant "Ninety-Two".
In the other big news of the day, the ACLU revealed that the CIA now admits that it destroyed not two, as previously revealed, but 92 interrogation videotapes of "high-profile" prisoners in their custody. The revelation came as part of the ongoing Freedom of Information Act lawsuit by the ACLU to obtain documents from the CIA. The case is in the U.S. District Court in the Southern District of New York.
The admission of greater destruction of evidence came in a letter today from the U.S. attorneys to Judge Alvin Hellerstein. Noting that John Durham's criminal investigation into "the destruction of certain videotaped interrogations of detainees by the Central Intelligence Agency" is essentially over, and that the court will likely order an identifying list of destroyed records, with "summaries, transcripts, or memoranda" regarding these records "and any reconstruction of the records' contents," the government, agreeing to gather the appropriate materials, made the following comment:
In the meantime, the CIA can now identify the number of videotapes that were destroyed.... Ninety-two videotapes were destroyed. This information is included in the CIA Office of Inspector General's Special Review Report, a redacted version of which was previously produced to the Plaintiffs. The CIA will unredact this information from the report and produce it to the Plaintiffs.The government also promised to identify and witnesses who have seen the tapes or had custody of them prior to their destruction.
Finally, we note that certain of the information ... may be classified or statutorily protected from disclosure, such as the names of CIA employees who have reviewed the tapes.
One wonders why it took that long to make the admission, and we can suppose that Durham already knew something of the amount of destroyed material, as part of his investigation, and that the CIA is doing its best to organize a limited hangout of some sort. I note what the government notes, i.e., that "certain of the information ... may be classified or statutorily protected from disclosure." It remains to be seen how far they will go in hiding more of their crimes.
The Crime of Destruction of Evidence in its Historical Context
I think there are two places in which we have the CIA on record, in-house, so to speak, re taping coercive interrogations (torture). In the KUBARK manual, audio taping of interrogations is recommended, as helping with planning and ongoing interrogations. They had lots of uses for such recordings, as this snippet from KUBARK (CIA counterintellgence interrogation manual, 1961) indicates:
A session with the witness may be recorded. If the witness denounces the interrogatee there is no problem. If he does not, the interrogator makes an effort to draw him out about a hostile agent recently convicted in court or otherwise known to the witness. During the next interrogation session with the source, a part of the taped denunciation can be played back to him if necessary.Much more recently, in the minutes to the 10/02/02 "counter-resistance strategy" meeting with LTC Beaver, other DoD personnel, and Dave Becker of DIA and CIA general counsel John Fredman, we get the following exchange:
Becker: Videotapes are subject to too much scrutiny in court. We don't want the LEA people in aggressive sessions anyway. [By "LEA," they mean "law enforcement agency", and most particularly, the FBI. - Valtin]As many have noted, there are thousands of hours of videotape, and not only of CIA torture. There were likely lots of tapes made at Guantanamo, too (and many likely also destroyed).
LTC Beaver: LEA choice not to participate in these types of interrogations is more ethical and moral as opposed to legal.
Fredman: The videotaping of even totally legal techniques will look "ugly".
The destruction of interrogation evidence was a primary consideration of these criminals from very early on, as evidenced by this story, now little remembered from last June:
The Pentagon urged interrogators at Guantanamo Bay to destroy handwritten notes in case they were called to testify about potentially harsh treatment of detainees, a military defense lawyer said Sunday.Put this all together with the supposed "disarray" of Guantanamo files, and we have a massive cover-up of crimes of a magnitude we have yet to fathom. One thing is for sure, the amount of destroyed tapes and material is far more than even this limited hangout will attest.
The lawyer for Toronto-born Omar Khadr, Lt. Cmdr. William Kuebler, said the instructions were included in an operations manual shown to him by prosecutors and suggest the U.S. deliberately thwarted evidence that could help terror suspects defend themselves at trial.
The destruction of evidence -- in this case amounting to obstruction of justice -- is nothing new for the CIA. In the early 1970s, the Director of Central Intelligence, William Colby, along with the head of the CIA's Office Technical Services destroyed most of the agency's MKULTRA files, as then-CIA chief Admiral Stanfield Turner admitted to a Senate panel in 1977. MKULTRA was a massive mind control, "behavioral modification" program. It ran, officially, from 1953-1964, and included even "terminal" experiments with the use of drugs on unwitting subjects. The results of its various studies were incorporated into the CIA model of coercive interrogation, codified in its KUBARK counter-intelligence interrogation manual in the early 1960s. This manual was only declassified in the 1990s. The National Security Archive describes some of the relevant sections in that manual. Warning: those who read this may suffer vertiginous deja vu, thinking of various headlines and exposes in the past seven years:
Under the subheading, "Threats and Fears," the CIA authors note that "the threat of coercion usually weakens or destroys resistance more effectively than coercion itself. The threat to inflict pain, for example, can trigger fears more damaging than the immediate sensation of pain." Under the subheading "Pain," the guidelines discuss the theories behind various thresholds of pain, and recommend that a subject's "resistance is likelier to be sapped by pain which he seems to inflict upon himself" such rather than by direct torture. The report suggests forcing the detainee to stand at attention for long periods of time. A section on sensory deprivations suggests imprisoning detainees in rooms without sensory stimuli of any kind, "in a cell which has no light," for example. "An environment still more subject to control, such as water-tank or iron lung, is even more effective," the KUBARK manual concludes.
Government Secrecy and the Struggle for a Free Society
Secrecy is almost always used to protect crimes from the public. It is shameful that an administration that prides itself on transparency -- indeed, Attorney General Holder released today the text of the missing Office of Legal Counsel memos from the post-9/11 era -- has, when it comes to torture and wiretapping, committed itself to such an abysmal recrudescence of Bush-era claims of executive supremacy.
It is not enough to ban waterboarding, as the government has now announced, when abusive techniques of interrogation, including sensory deprivation, isolation, sleep deprivation and manipulation of phobic fears is still part of the U.S. arsenal of interrogation techniques, as in the current Army Field Manual.
The CIA is almost an entirely different story. As a rogue element in government, recipient of untold billions of dollars and influence in far-reaching parts of government and society as a whole, it is ceased being, if it ever was, an agent of the democracy it claims to serve, and is instead one of the most dangerous, out-of-control elements inside government. One can only hope that the Durham investigation comes to the necessary conclusions, and that criminal prosecutions begin the restoration of law and order throughout the government.
What seems likely, though, is that the entrenched powers will fight a tooth-and-nail struggle against any restriction upon their freedom of action. Only a period of social struggle, such as occurred in the 1960s and 1970s, will provide the sufficient societal impetus and defense to fight back against these anti-democratic interests and the law-breakers that enable them. One way to begin this fight would be by supporting the call for prosecutions initiated by the National Lawyers Guild and a number of other prominent individuals and groups. If one cannot bring themselves to support that, then one must at a support the call for investigations coming from the Congressional offices of Sen. Patrick Leahy and Rep. John Conyers.
Wiretapping, Torture, Stonewalling by government, and Obstruction of Justice by the agencies and players involved -- Watergate was not easy, and this will not be so either. But I feel the tide turning, and we must complete what the Vietnam and Watergate eras failed to achieve: a social revolution in how power is conducted in this country, and an end to militarism and imperialist foreign policy as the raison d'etre for U.S. power.