Tuesday, May 20, 2008

A Troubled Sewer of a Government: FBI & the Failure to Act on Torture Reports

I begin this very important essay today by publishing a press release from the ACLU. It concerns the Department of Justice Office of the Inspector Report released Tuesday, A Review of the FBI's Involvement in and Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan, and Iraq (438 pages!). I'll have a lot to digest in reading this crucial document, and more to say on it. But it's worth reading the full press release, and let's just say... things look as rotten as we suspected. Bold emphases are my own editorial emphasis.

Justice Department Report Reveals Senior Government Officials Knew Early On Of Interrogation Abuse But Did Not Stop It (5/20/2008)

First Government Report To Identify Rice As Receiving Interrogation Complaints

CONTACT: (212) 549-2689 or 2666; media@aclu.org

NEW YORK - The results of an internal Justice Department investigation released today reveal that officials at the highest level of government — including the White House — received reports on the abuse of prisoners in U.S. military custody overseas as early as 2002. Congress called on the department's Office of the Inspector General (OIG) to conduct the investigation after documents made public through an American Civil Liberties Union Freedom of Information Act (FOIA) request revealed FBI agents at Guantánamo had raised concerns about methods used by military interrogators. Today's government report is the first to identify that then-National Security Advisor Condoleezza Rice received complaints of torture.

"Today's OIG report reveals that top government officials in the Defense Department, CIA and even as high as the White House turned a blind eye to torture and abuse and failed to act aggressively to end it," said Anthony D. Romero, Executive Director of the ACLU. "Moreover, the country's top law enforcement agency — the FBI — did not take measures to enforce the law but only belatedly reported on the law's violations. It's troubling that the government seems to have been more concerned with obscuring the facts than with enforcing the law and stopping the torture and abuse of detainees. Had the government taken action in 2002, perhaps the disgrace of Abu Ghraib and other abuses could have been avoided."

According to the OIG report, which was initiated in December 2004 and took three and a half years to complete, senior administration officials failed to stop torture and abuse even after being made aware of it.

The report reveals the White House had knowledge of reports that originated with individual FBI agents, including concerns about the unlawful nature of interrogation tactics. Some of these discussions involved effectiveness, while others involved legality, the effect of abuse on the admissibility of evidence, and damage to the rule of law.

"Attorney General Michael Mukasey recently testified to Congress that he cannot prosecute anyone for anything approved by Justice Department opinions that authorized detainee abuse. But no one gets immunity for acts they should have known were illegal," said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. "The filtering up of information from FBI agents to high government officials makes claims of immunity even more incredulous."

The report confirms that senior FBI officials knew as early as 2002 that other agencies including the CIA were using abusive interrogation methods. However, the FBI didn't advise its agents to report incidents of abuse until 2004, after the publication of photographs revealing abuse at the Abu Ghraib prison.

The report also reveals that the CIA hampered the OIG investigation by blocking an OIG interview with a detainee who was the subject of aggressive interrogation techniques including waterboarding. According to the report, the Defense Department had granted the OIG permission to interview several detainees including Zayn Abidin Muhammed Hussein Abu Zubaydah stating the interviews would not interfere with their attempts to obtain intelligence from the detainees. However, the CIA acting general counsel objected to the OIG team interviewing Zubaydah. The OIG was also denied access to classified information about CIA-controlled facilities, what occurred there, and what legal authorities governed their operations.

"We are deeply troubled by the CIA's efforts to frustrate the Inspector General's investigation by denying the inspector general access to critical information and a key prisoner," said Jameel Jaffer, Director of the ACLU National Security Project. "The report only underscores the pressing need for an independent and comprehensive investigation of prisoner abuse. It's unacceptable that, four years after the publication of the Abu Ghraib photographs, no senior official has been held accountable. Most of those who ought to have been held accountable have been nominated and confirmed to higher posts instead."

"This new report should become exhibit A at the next congressional hearing on the Bush administration's use of torture," said Christopher Anders, Senior Legislative Counsel to the ACLU. "The House Judiciary Committee is in the middle of the first thorough congressional review of the development and implementation of the torture policies at the top levels of government. The questions are who did what and what crimes were committed. This Justice Department report helps answer both questions."

In October 2003, the ACLU and the New York Civil Liberties Union — along with the Center for Constitutional Rights, Physicians for Human Rights, Veterans for Common Sense, and Veterans for Peace — filed a FOIA request for records concerning the treatment of prisoners in U.S. custody abroad. To date, more than 100,000 pages of government documents have been released in response to the FOIA request — including the Bush administration's 2003 "torture memo" written by John Yoo when he was a deputy at the DOJ's Office of Legal Counsel.

The ACLU filed another FOIA request in April 2008 demanding the release of the OIG report after media reports that the investigation had been completed for months. Today's report confirms that the Defense Department used its classification review to delay the release of the report.
Addendum (5/21/08):

The fallout from the DOJ OIG report is spreading across the print press and blog world. You can almost sense the despair behind the written words, as the evidence of profound failure and monstrous subversion at the top, and impotent protest in the ranks, is infecting those commentators and reporters who survived the Bush years with a shred of ethical dignity. Consider Eric Lichtblau and Scott Shane's story in today's New York Times (bold emphases are mine):
The report says that the F.B.I. agents took their concerns to higher-ups, but that their concerns often fell on deaf ears: officials at senior levels at the F.B.I., the Justice Department, the Defense Department and the National Security Council were all made aware of the F.B.I. agents’ complaints, but little appears to have been done as a result.

The report quotes passionate objections from F.B.I. officials who grew increasingly concerned about the reports of practices like intimidating inmates with snarling dogs, parading them in the nude before female soldiers, or “short-shackling” them to the floor for many hours in extreme heat or cold....

Many of the abuses the report describes have previously been disclosed, but it was not known that F.B.I. agents had gone so far as to document accusations of abuse in a “war crimes file” at Guantánamo. The report does not say how many incidents were included in the file after it was started in 2002, but the “war crimes” label showed just how seriously F.B.I. agents took the accusations. Sometime in 2003, however, an F.B.I. official ordered the file closed because “investigating detainee allegations of abuse was not the F.B.I.’s mission,” the report said.
Nothing could be clearer: torture is the policy of the United States, and even the protests of their own agents in the field are unacceptable. I wonder how many -- or even if any -- FBI agents resigned in protest over this inhumanity and criminality by our own government. While the report lauds the integrity of the agents, I note that few if any chose to resign in protest, or publicly bring this information to the American people who they supposedly serve.

Glenn Greenwald turns his intellecutal guns upon the Congress and the American people themselves, noting:
While there is much rhetorical protest over these torture programs in the halls of Congress and in our elite media institutions, there has been little real action in response. Indeed, it has long been known that we are torturing, holding detainees in secret prisons beyond the reach of law and civilization, sending detainees to the worst human rights abusers to be tortured, and subjecting them ourselves to all sorts of treatment which both our own laws and the treaties to which we are a party plainly prohibit. None of this is new.

But our elite political institutions have decided, collectively, to do nothing about that. Quite the contrary, with regard to many of the revelations of abuse, our elected representatives — with some noble exceptions — have chosen to remain largely in the dark about what was done. When forced by court rulings or media revelations to act at all, they have endorsed and legalized this behavior — not investigated, outlawed or punished it.

A 2006 ruling by the Supreme Court in Hamdan that the President’s interrogation and detention policies violated the law led Congress, on a largely bipartisan basis, to enact The Military Commissions Act to legalize those policies.
Greenwald makes the vital point that the nation is imposing zero consequences for these violations of civilized norms. And he points out that key Democrats -- most crucially, now Speaker of the House Nancy Pelosi -- were aware of and apparently substantively approved this torture (something I pointed out in my essay "No Moral Compass" last December). But, unaccountably, Greenwald asks these same political cowards and collaborationists to clean up their act: "Those political officials who were in a position to put a stop to these abuses but failed to do so have the greatest responsibility to take meaningful action now."

But these officials have already shown themselves incapable or unwilling to take on the CIA, the Defense Department, upper echelons of the FBI and Justice Department, or Bush Administration officials themselves.

America at a Crossroads

What we have is a crisis of civil society in America. Our institutions have demonstrated a creaky inability to restrain crime and injustice at the highest levels of government. The aggressive war against and occupation of Iraq continues unabated, even with major, bloody counterinsurgency actions against civilian targets in Sadr City outside Baghdad, and even as the U.S. population views the war with grave distaste. Domestically, sky-high gas and food prices continue to spiral upwards without any intervention by the politicians, who evidently appear frozen to effect any real reforms, paralyzed by the warlike aims of those who rule this country, afraid perhaps to change anything lest the whole corrupt apparatus totter and fall and they lose their power thereby.

Greenwald concludes, with a sense of desperation that time is growing short:
It is vital to emphasize here that these matters are not obsolete matters of the distant past — something we can all agree to leave behind in the spirit of harmoniously moving forward. The torture, detention and surveillance policies in question are still the formal and official position of our government — and thus can be applied with far greater vigor not merely in the event of a new terrorist attack, but at any time....

This could — and should — still all be reversed. The Congress could aggressively investigate. Criminal prosecutions could be commenced. Our opinion-making elite could sound the alarm. New laws could be passed, reversing the prior endorsements and imposing new restrictions, along with the will to enforce those laws. We still have the ability to vindicate the rule of law and enforce our basic constitutional framework.
It is up to us as citizens to fight this evil, to begin to take action and say "no more". In the hallways of Congress, at state and local legislatures, at union meetings, at PTA meetings, in letters and emails and phone calls, a blizzard of protest... but we are not at the tipping point yet. I don't know when it will come, or even if it will come, but unless the American people stand up and fight for what is right, for themselves and for justice for all, then all may be lost.

1 comment:

Jesselyn Radack said...

Thank you for being the ONLY ONE to pick up on the whistwash aspect of this report. Here's my contribution:

FBI Abuse, Unmentioned
I read with dismay an article [May 21] and an editorial [May 25] on a report by the Justice Department's Office of Inspector General, disclosing that FBI officials challenged abusive interrogation techniques at Guantanamo Bay and other military sites.

Conspicuously absent from this report was any mention of “American Taliban” John Walker Lindh, although the report covers the relevant period.

Lindh – an American citizen and one of the earliest prisoners in the Afghan war – was tortured unmercifully, as shown in a famous photo of him blindfolded and duct-taped naked to a board. The FBI knew about the conditions of his confinement, kept silent about it and did nothing to stop it. Moreover, the FBI denied him access to a lawyer and improperly “Mirandized” him. The confessions elicited from this interrogation formed the basis of his criminal prosecution.

I was the Justice Department ethics attorney in the Lindh case. While I applaud the Office of Inspector General for finally doing its job in exposing the government’s role in detainee abuse, we must not be so desperate for a glimmer of truth and sunshine that we are willing to overlook history.

Homeland Security Director
Government Accountability Project

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