Friday, February 26, 2010

Two More Essential Articles on OPR/OLC Torture Scandal

I'm too busy to be writing up my own article today. Luckily, there's a lot of excellent work being done right now on the torture situation, coming on the heels of revelations in the DoJ's OPR report on the torture memos, and its ignoble conclusion by DoJ fixer David Margolis to overrule the judgment of the report.

Here's an article by Marcy Wheeler at Emptywheel, who has found a crucial piece of extra evidence by carefully sifting through the OPR report, and drawing on her knowledge of the torture scandal:

What If They DID Use Mock Burial with Abu Zubaydah? 

In my last post [The Mock Burial in the OPR Report], I showed that the CIA asked DOJ to approve the use of mock burial, but DOJ refused. I noted that the ICRC report doesn’t appear to show that Abu Zubaydah was subjected to mock burial (though he was subject to confinement in both a small and a larger box).

But what if he was? What if, in the period before the torture memos, James Mitchell subjected Abu Zubaydah to mock burial, and DOJ later refused to give it retroactive approval?

After all, John Yoo specifically said that mock burial violates the torture statute. If he said that–and OPR has records–then what does that mean for those who authorized and carried out mock burial?
Wheeler goes on to describe what she found in the OPR report to back up this thesis. Raw Story picked up her analysis and now has published their own story about it.

Meanwhile, Scott Horton continues his excellent deconstruction/analysis of the Margolis memorandum which exonerated torture memo authors John Yoo and Jay Bybee, concluding their collaboration with the CIA in constructing the torture program was merely, in the matter of writing the torture memos, "bad judgment."

More Investigations for the Torture Lawyers

I am just back from the Alliance For Justice’s panel discussion on the OPR Report, at which I spoke, at the Washington office of Wilmer Hale. The show-stealer was the presentation by Georgetown professor Michael Frisch, one of the District of Columbia’s leading legal ethics experts and a long-time enforcer for the D.C. Bar Council.

Frisch eviscerated both the OPR report and the David Margolis memo. The key ethics inquiry, he argued, was under Rule 1.2(d)—whether Yoo, Bybee, and Bradbury were actually counseling a crime. In this case, the evidence that their advice was designed to facilitate torture is clear-cut, torture is a felony, and multiple players putting a scheme in place to torture is a conspiracy to torture. Yet neither the OPR report nor David Margolis even considered this question, focusing all their energy instead on two weak and rarely enforced provisions of the ethics code dealing with the duty of candor and the duty to exercise independent professional judgment....

... the [New York] Times [25 February editorial] zeroes in on what strikes me as the fishiest part of the whole DOJ ethics escapade: the “disappearance” of John Yoo’s and Patrick Philbin’s emails. Emails at an institution like the Justice Department don’t just “disappear.” Someone deleted them. Moreover, for a deletion to be effective enough to avoid an investigation, extraordinary steps have to be taken. In a criminal investigation (as should have taken place), this would have been an act of criminal obstruction. What’s out there that they don’t want us to see?
We, the American people, must demand clear, open, and fair investigations of the government's torture program, and this investigation must be allowed to go wherever it must -- into the executive branch (military, CIA, Justice Department), the Congress, private contractors, etc. A clear evil is eating away at our society, and its most serious symptom is the torture and murder of human beings, and the covering up of these crimes.

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