Short Shots in Anti-Torture Wars

With little time to post for the next few days, I wanted to give my readers a few juicy morsels to chew over.

There's Emptywheel's analysis at Firedoglake of the new Department of Justice brief, re the withdrawal of the “Enemy Combatant” definition for Guantanamo "detainees". Most are lauding it as some great victory. But it's yet another Obama cosmetic miracle: looks like progress on the outside, but is plain old ugly Bush on the inside. From EW's article:

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces. [my emphasis]

The President has the authority ... the President determines ... the President has the authority.

You see, it's still the same unitary power, stripped of the baggage of Bush's vocabulary. And even as they abandon Bush's vocabulary, they progressively expand the reach of that authority to include just about all those whom Bush already determined were enemy combatants, no matter how nebulous that person's ties to al Qaeda.

Meanwhile, the Obama administration is doing its best to derail the lawsuit by Rasul et al. against Donald Rumsfeld and former Bush administration officials for "torture; prolonged arbitrary detention; cruel, inhuman or degrading treatment; cruel and unusual punishment; denial of liberties without due process, and preventing the exercise and expression of their religious beliefs." None of these victims were ever charged with a crime.

Daphne Eviatar at The Washington Independent reports (H/T to Stephen Soldz):

Dismissed at the urging of the Bush administration, the case was appealed to the U.S. Supreme Court. In December, the case was sent back to the U.S. Circuit Court of Appeals in Washington for reconsideration, because the Supreme Court had ruled in Boumediene v. Bush that Guantanamo detainees have the right to challenge their detentions. It wasn’t clear what effect that ruling might have on the Rasul case.

Although some civil rights lawyers had hoped the Obama administration would change the government’s position — or at least try to settle this case, which is at the very least an embarrassment to the United States – the former prisoners had no such luck. Today, the Justice Department filed a brief arguing, as it did in Padilla’s case against Yoo, that government officials are not liable for torture, abuse, denial of due process or religious rights, because the right of Guantanamo prisoners not to suffer those abuses at the hands of the U.S. government was not clearly established at the time.

That would seem to contradict previous statements by President Obama and Attorney General Eric Holder that torture (including waterboarding) and other abuses are clearly illegal, now and always, and that the president can’t simply override that prohibition.

And meanwhile, on the homefront, you'd never know it because the silence is so deafening, but the ACLU released a major study on the effects of the Patriot Act. Their press release states:

“Reclaiming Patriotism” reveals that in the years since its passage, the Patriot Act has paved the way for the expansion of government-sponsored surveillance including the gutting of the Foreign Intelligence Surveillance Act (FISA) and a recent revamping of the Attorney General Guidelines to allow law enforcement to conduct physical surveillance without suspicion. Indeed, over the last eight years, numerous expansions of executive authority have worked in tandem to infringe upon our rights. Only by understanding the larger picture of the combined effects of Patriot Act, the amendments to FISA, the guidelines for physical surveillance and other expansions of power can Congress make an informed, consistent and principled decision about whether and how to amend all of these very powerful surveillance tools.

You can go read the report at this link.

Finally, the other day I reported on the attempt by former British Ambassador to Uzbekistan Craig Murray's to speak before a hearing of the UK Parliamentary Joint Committee on Human Rights on the subject of the UK government's policy on intelligence cooperation with torture abroad. JCHR shunted aside the request more than once. I'm still not sure he actually spoke, but his website posted today this article, Trying Again to Stop Torture: My Formal Statement for the Joint Committee on Human Rights. Here's the conclusion from Murray, fighting the fight against state-sanctioned torture from Great Britain:

Conclusions

1. All CIA intelligence is received by the UK. MI6 has seen the fruits of every CIA waterboarding session and rendition torture. Very many will have been passed on to ministers and senior officials.

2. Ministers decided the principle of the universality of the UK/US intelligence sharing agreement was more important than any aversion to torture. We could not refuse this material from the CIA without compromising the basic agreement.

3. Ministers did know they were receiving intelligence from torture. There was a definite, internally promulgated and legally cleared policy to receive intelligence from torture, directed in person by Jack Straw.

4. The format of intelligence reports contains a deliberate double blind; by excluding the name of the detainee from the final report, Ministers can state they have never knowingly seen intelligence from torture.

5. The government’s public lines that we do not condone, endorse, encourage or instigate torture, even that we condemn it and work against it, do not answer the key question:

“Are we prepared on a regular basis to receive intelligence from torture?”

That question is capable of a one word answer. The true answer is yes. The government refuses to give a straight answer.