Thursday, April 16, 2009

"Good" and "Bad" Faith & the Torture Memos

Astute commenter, Mary, over at Emptywheel/FDL, has a very interesting quick assessment of what is not in these torture memos. And what's not there to rely on opens up a huge gap re possible criminal liability, even by Holder's standards:
Aside and apart from how appalling the memos are, they have a few less emotional issues that emerge after you look at them. [And here they are, linked: August 1, 2002 Bybee/Yoo memo; May 10, 2005 Stephen Bradbury memo #1; May 10, 2005 Stephen Bradbury memo #2; May 30, 2005 Stephen Bradbury memo.]

I’ve mentioned before in connection with other memos released that, despite the assertions that people were “relying” on them in “good faith” that they just simply were not reliance opinions. In large part bc they had no facts (and Bradbury alludes to this too in later day sainthood before he left office and referencing general policy issues v. specific fact settings) and as a result, they just did not meet the standards for reliance.

The above linked memos, by contrast, are the actual “reliance” memos and that brings you to some of the other areas of difficulty.

Mad Dog gets to the first one - because they are more fact recitation dense, the individuals highlighted in the authorization chain and also in the chain of certifying to OLC what they say was going on come to the fore on liability. Brennan, Tenet, and in particular Rizzo, OMS and really revolting physician/psychologists. There you have a lot of issues, including the fact there appear to be some glaring and intentional misrepresenations which may go to invalidating chunks of the opinions EVEN IF you bought into any of it (for example, the mental status information on Zubaydah). You also have the complete lack of due diligence in general by Bybee/Yoo and Bradbury. Their whole fact recitations are premised on “you tell us this” and “you tell us that” and “you tell us that all this is fine and hunky dory” and then gets to the conclusions based on assumptions of veracity of all the underlying info.

Despite a lot of effort to pad out the stats and facts, there’s no fact recitation of contacts with DOJ/FBI persons present during some of the interview or non-CIA input on issues like sleep deprivation etc.

But even if you then put the misrepresentations and lack of due diligence aside you get to one of the major problems.

There’s a lot the opinions don’t discuss and don’t authorize.

What was done with Jamadi - what was done with Qhatani (although non-CIA), what was done with the detainee who froze to death in 2002 - none of those kinds of hypothermia to the point of death or turning blue and beatings to death are authorized by the memos.

Then there are other things that aren’t discussed - like the issue of disappearing someone for years. That’s not something that happens to SERE members and issues of disappearing someone and taking to to a foreign country and isolating them for years etc. (especially when you also have issues like their anxiety for what is happening to their families - etc) Nothing in the memos authorize that, nothing discusses it in a torture context, nothing discusses it in a cumulative context (despite the fact that the disappearances had been going on for years in isolation by the time Bradbury issued his report).

Nothing about dumping someone the way el-Masri was dumped and leaving him to have to try to figure out if he really is crazy as he tries to sell his story - nothing about the divorces and family problems (el-Masri returned to find his wife had divorced him) Nothing, also, about the effect of having family members disappeared on those who remain. It doesn’t have any long term, lasting mental effect for a young child to grow up with a disappeared parent who, when returned, has been a torture victim?

Nothing about threats of rape and harm to family. Nothing about simulated sodomy. Nothing about anal penetrations. Nothing about kidnap by stealth. Nothing about conspiracy to send to places where more intense pressure will be applied (Syria, Morocco, etc.) or about threats to send to such places. Nothing about — a whole long list of things. And very little indeed about how anything they say applies to anyone who is a “mistake” There’s a sideways reference in the cumulative effects memo to what about people who are not “high value” detainees (which would include people who are innocent of being combatants)

There’s a lot more worth attention and discussion, but one thing the release of the memos does is basically take away the “authorized by good faith reliance on OLC opinions” response for many actions, even if you leave the revolting memos untouched. And you put Rizzo in particular right in the track back for specific factual representations to OLC that may very well be incorrect and have been used specifically to elicit an opinion for reliance that is based on false information.
A lot more to think about re accountability and liability for prosecutions. I thank Mary and all the intelligent bloggers and commenters over at FDL, for once again providing the best instant analysis.

1 comment:

Uncle $cam said...

When the Rule of Law is IllegalLaura Nader, Professor of Anthropology at the University of California, Berkeley and co-author (with Ugo Mattei) of Plunder: When the Rule of Law is Illegal. The talk was given at the Law of the Commons Conference March 13, 2009 at Seattle University and sponsored by the Seattle Chapter of the National Lawyers Guild.

It's not the hysterical laughter that bothers me, it's my inability to stop ...

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