Obama's War Crimes Commission Stands Law on its Head

The Administration's decision to press forward with the first war crimes trial of a child soldier in modern history is unfathomable. That the Administration would then try to ensure a conviction by attempting to rewrite the law to create a new war crime is reprehensible. -- David Frakt, Associate Professor of Law at Western State University College of Law and a Lieutenant Colonel in the U.S. Air Force Reserve JAG Corps; former lead defense counsel with the Office of Military Commissions, Guantanamo.

Lt. Col. Frakt, who was the lead defense counsel in the Guantanamo military commissions trials of Mohammed Jawad and Ali al Bahlul, has written an important analysis of the President Obama's new military commission rules. These rules were released without public comment and only a day before the trial was to start in the case of former child soldier, Omar Khadr.

Frakt does a good job explaining the Orwellian logic of the new military commission rules. Lost within the arcana of who is or is not a "privileged combatant," and thereby appropriate for war crimes charges or trial by military commission, is the insanely twisted logic of the Pentagon, who has strained at gnats, only to bring forth yet another atrocity of justice. As Lt. Col. Frakt explains:

Now, the Department of Defense has once again attempted to revive this discredited interpretation of the offense with a slight twist. In the new Manual the following official comment has been included in explanation of the offense of Murder in Violation of the Law of War: "an accused may be convicted in a military commission. . . if the commission finds that the accused engaged in conduct traditionally triable by military commission... even if such conduct does not violate the international law of war." Astoundingly, according to the Pentagon, a detainee may be convicted of murder in violation of the law of war even if they did not actually violate the law of war.

So you can be found guilty of violation of the laws of war, even if you never violated the laws of war. In other words, according to the prosecutors, we can pretty well bloody do what we want to do. Catch-22, anyone?

News reports describe how Khadr is being forced to wear black-out goggles and earmuffs when being taken to the trial, and after undergoing humiliating searches. This kind of treatment can only be meant to assert power and omnipotence over Khadr, and influence the military and observers at the trial that this 23 year old man, captured as a 15 year old, and tortured at Bagram and Guantanamo, is somehow a danger akin to Hannibal Lecter.

This whole trial is emblamatic of the false promise and true face of the Obama administration, which has tried to paper over the worst excesses of the previous administrtion with glitzy wallpaper and superglue, but in the end have nothing new to offer but the same old policies of torture, indefinite detention, bogus military commissions (aka kangaroo courts), and secret prisons, not to mention frame-ups, and draconian attacks on justice, as in the recent case of Syed Fahad Hashmi, a U.S. citizen held in solitary confinement for three years in a NYC jail on trumped-up or exaggerated charges of "material support to terrorism".

From an important story by Andy Worthington, who describes government attempts to influence the judicial process:

Before the trial, Theoharis and Fayad Hashmi’s many supporters had pointed out how the prosecution was trying to rig the proceedings, with the government asking for jurors to be anonymous and kept under extra security (a request that was granted by Judge Loretta Preska) in a filing in which the government’s lawyers claimed that “jurors will see in the gallery of the courtroom a significant number of the defendant’s supporters, naturally leading to juror speculation that at least some of these spectators might share the defendant’s violent radical Islamic leanings.”

With this in mind, Fayad Hashmi may have decided that a plea bargain provided his only opportunity to avoid a 70-year prison sentence, but whatever the truth, his treatment over the last four years, and the paucity of the evidence against him, appears only to demonstrate that the overreaction of the Bush years in relation to the perceived terrorist threat is as exaggerated as ever.

For more on the Khadr trial, follow the coverage by Spencer Ackerman at The Washington Independent, and his own blog, Attackerman. Spencer is in Guantanamo covering the trial.

Inno al sole

Pietro Mascagni - Iris, Inno al sole (Atto I)

Coro del Teatro alla Scala, Maestro del Coro Giuseppe Conca
Orchestra del Teatro dell'Opera di Roma, Direttore Giuseppe Morelli

European Union: Protest Sanctions Against Judge Garzón

The following is a press release from Human Rights Watch, dated April 22, 2010, describing the protest of the European Union against possible prosecution and suspension of Spanish Judge Baltasar Garzón, who has been investigating crimes of the previous Fascist regime of Francisco Franco. Judge Garzón has previously brought charges against other international figures for torture and crimes against humanity, such as former Chilean dictator Augusto Pinochet.

(Brussels) – The president of the European Union Council, Herman van Rompuy, and EU member states should express their concern over the prosecution and the potential suspension of Judge Baltasar Garzón of Spain for investigating Franco-era abuses, Human Rights Watch said today.

Garzón, of Spain’s National Audience tribunal, faces trial and suspension from his duties for investigating alleged cases of illegal detention and forced disappearances committed in Spain between 1936 and 1952. A Supreme Court investigating magistrate, Luciano Varela, has ruled that by intentionally bypassing Spain's 1977 amnesty law for "political acts," Garzón committed an abuse of power.

"Garzón sought justice for victims of human rights abuses abroad and now he's being punished for trying to do the same at home," said Lotte Leicht, EU advocacy director at Human Rights Watch. "The decision leaves Spain and Europe open to the charge of double standards and undermines the EU's credibility and effectiveness in the fight against impunity for serious crimes."

Varela’s decisions are expected to lead to a criminal prosecution of Garzón, and as a result, Spain’s General Council of the Judiciary (Consejo General del Poder Judicial) will consider Garzón’s temporary suspension.

However, Garzón’s decision not to apply Spain’s amnesty is supported by international conventional and customary law, which impose on states a duty to investigate the worst international crimes, including crimes against humanity. The sanctions against Garzón are not only a blow to the families of victims of serious crimes in Spain, Human Rights Watch said. The sanctions also risk undermining the EU’s collective credibility and effectiveness in seeking justice for current human rights crimes, be they in Darfur, the Democratic Republic of Congo, or Sri Lanka.

Under international law, governments have an obligation to ensure that victims of human rights abuses have equal and effective access to justice, as well as an effective remedy – including justice, truth, and adequate reparations – after they suffer a violation. The International Covenant on Civil and Political Rights (ICCPR), which Spain ratified in 1977 – before adopting the amnesty law - specifically states that governments have an obligation “to ensure that any person whose rights or freedoms … are violated shall have an effective remedy.”

In 2008, the UN Human Rights Committee, in charge of monitoring compliance with the ICCPR, called on Spain to repeal the 1977 amnesty law and to ensure that domestic courts do not apply limitation periods to crimes against humanity. In 2009, the Committee against Torture also recommended that Spain “ensure that acts of torture, which also include enforced disappearances, are not offences subject to amnesty” and asked Spain to “continue to step up its efforts to help the families of victims to find out what happened to the missing persons, to identify them, and to have their remains exhumed, if possible.”

The European Court of Human Rights held in 2009 (Ould Dah v France No. 13113/03, Decision on admissibility) as a general principle, that an amnesty law is generally incompatible with states’ duty to investigate acts of torture or barbarity.

On the other side of world events, and the globe, Scott Horton reminds us that justice for past crimes against humanity is not an impossibility:

Reynaldo Bignone served as Argentina’s head of state from 1982-83. He was involved in the military coup d’état that brought down Isabel Perón in 1976. Together with a number of other leaders of the military government that followed Perón, he was recently tried in Buenos Aires on charges that he authorized the torture and mistreatment of prisoners, kidnapping, and the operation of extralegal prisons, together with other crimes against humanity....

Bignone was convicted and received a 25-year sentence this week. His plea that he be allowed to serve his term under house arrest was denied because of the gravity of his crimes. He was ordered transferred to a prison outside of Buenos Aires....

The case of Reynaldo Bignone may make instructive reading for former Vice President Dick Cheney and CIA Deputy Director Steven Kappes. Cheney is in retirement, and Kappes is preparing to leave the agency. Both should be cautious about any future travel plans.

One imagines that Judge Garzón has read this news with some satisfaction, as he led international prosecutions of former members of the Argentinian military back in the 1990s.

Psychologists Notes May Indicate Zubaydah Torture Experimentation

Originally posted at Truthout

One interesting nugget found in newly released CIA documents related to the destruction of 92 torture tapes concerns the unreported existence of psychologist's notes as a standard part of the interrogation protocol.

In a "top secret" paper (undated) entitled "The CIA Interrogation of Abu Zubaydah, March 2001 - January 2003," in a section that, though heavily redacted, describes the review of the tapes by a CIA attorney from the Office of General Counsel, "interrogation materials" are described as consisting of "videotapes, logbook, notebook, and psychologist's notes."

(The "March 2001" date on the report is surely incorrect, and should say March 2002, when Zubaydah was captured and brought into the CIA interrogation process. There are many errors and outright lies in the report. One of them concerns the affirmative statement that Zubaydah was "the author of a seminal Al Qaeda manual on resistance to interrogation methods." This is a step beyond the conditional language used to assert the same claim in other CIA documents. The al-Qaeda manual's authorship is considered unknown. It was discovered in May 2000 on a computer drive belonging to Anas al-Liby in Manchester, England. Al-Liby was reportedly working then with purported double or triple agent, FBI informant and former US Special Forces member, Ali Mohamed. Al-Liby himself, was, according to a November 2002 story in the UK Guardian, a member of a Libyan al-Qaeda cell that was paid by British intelligence in 1996 to attempt an assassination of Muammar Gaddafi.)

The content of those psychologist notes, should they become available, will indicate to what end CIA interrogators and/or behavioral scientists were measuring the responses of Zubaydah or other prisoners to variations in the interrogation techniques' application. Variables of interest to CIA psychologists might include head movements and hand movements, facial expressions or microexpressions, used in detecting deception or behavioral manifestations of stress. These types of observation are synonymous with computer analysis and argue for the use of a digital video system or the transfer of analog video into data stored on magnetic or optical media. The same release of documents to the ACLU that contained the "The CIA Interrogation of Abu Zubaydah," also described CIA officials asking for "instructions" regarding the "disposition of hard drives and magnetic media" associated with the torture of Zubaydah.

In his or her notes, the CIA psychologist-analyst also would be describing mood; affect (appropriate or not, what it was); observed variations in consciousness, including instances of possible dissociation; and particularly unusual behaviors (e.g., urinating on oneself, or continually masturbating, as Zubaydah was reported to do as a soothing activity for a person highly stressed and regressed).

The examination of psychological variables, such as could be determined upon videotape review, does not rule out other forms of data that could be drawn from the prisoner interrogations. The CIA has noted that it took preliminary medical examinations of prisoners, and that while they were subjected to "enhanced interrogation techniques" they were medically and psychologically monitored daily. Such medical forms of monitoring would include variables associated with the experience of "uncontrollable stress."

Studying "Uncontrollable Stress" and "Learned Helplessness"

In a number of professional studies, the terms "uncontrollable stress" and "learned helplessness" are used interchangeably, as in this example. The term learned helplessness itself was fashioned by psychologist, researcher and former American Psychological (APA) President Martin Seligman. The theory was taken up by military psychologists James Mitchell and Bruce Jessen to describe the kinds of effects on prisoners the enhanced interrogation techniques were meant to produce. While Seligman spoke to a SERE meeting in 2002 on the subject of learned helplessness, he denies he had any connection with the formation of the Bush-era torture program. Last August, Scott Shane of The New York Times reported that Mitchell visited Seligman's home, accompanied by CIA psychologist Kirk Hubbard, where "a small group of professors and law enforcement and intelligence officers gathered ... to brainstorm about Muslim extremism."

CIA and Department of Defense (DoD) researchers are known to have experimented (including upon SERE mock torture trainees) with the use of a number of techniques to measure such uncontrollable stress, including functional magnetic resonance imaging (fMRI), acoustic startle eye-blink response (ASER), heart rate variability (HRV), testosterone and neuroendrocrine sampling, particularly of cortisol and neuropeptide-Y (NPY).

Psychologist's notes might also include preliminary hypotheses in relation to these reactions and the psychological theories of learned helplessness that were driving the interrogations. Perhaps - and this would be even more important - we would discover evidence that the psychologist(s) were conjuring suggestions about ways to manipulate the situation on a day-by-day basis.

From what is known or speculated about a second taping system used in the interrogation of Zubaydah, it seems likely that psychologist notes were also an integral part of the process involved in the use of those tapes.

The specific use of psychologist's notes corroborates earlier information that ongoing psychological and medical observations were playing a key role in the CIA interrogation process. This was clearly revealed in the various Office of Legal Counsel memos released last year. According to a report by Sheri Fink at ProPublica in May 2009, descriptions of CIA cables released to the ACLU at that time (see PDFs here and here) showed that "medical update[s]" and "behavioral comments" regarding the interrogation of Zubaydah were sent from CIA personnel in the "field" to CIA headquarters on a daily basis. Fink elaborates:

On five occasions between Aug. 4 and Aug. 9, [2002] an additional cable was sent containing "medical information" along with such information as the strategies for interrogation sessions, raw intelligence, the use of interrogation techniques to elicit information, and the reactions to those techniques. The fact that medical information was included in these cables hints that Abu Zubaydah was medically monitored during or after being subjected to those techniques. Both professional organizations and human rights groups have rejected as unethical any monitoring role for medical personnel.

A number of psychologists have been associated with the CIA interrogation program, either directly through participation in the planning and implementation of the torture, or by supporting the presence of psychologists in the interrogation process. The latter issue embroiled the APA in a controversy that led to the exodus of many members. A number of the presidents and other prominent members of the APA have been connected in one way or another to the CIA and DoD interrogation programs, in clear violation of the organization's own ethical standards.

Last August, Physicians for Human Rights released a white paper that raised the question of medical collaboration with the CIA in constructing its torture interrogation program.

"The [CIA] Inspector General's report confirms much of what had been reported about the essential role played by health professionals in designing, deploying, monitoring and legitimizing the program of torture, but also raises disturbing new questions which require further investigation," stated the study "Aiding Torture: Health Professionals' Ethics and Human Rights Violations Demonstrated in the May 2004 CIA Inspector General's Report."

"The possibility that health professionals monitored techniques to assess and improve their effectiveness, constituting possible unethical human experimentation, urgently needs to be thoroughly investigated."

ACLU/PEN Event, April 29, NYC -- “Face to Face: Confronting the Torturers"

This week, the ACLU will be co-hosting an event at the annual PEN World Voices Festival. “Face to Face: Confronting the Torturers” will take place on Thursday, April 29 at 9:30 p.m. at Joe’s Pub in Manhattan. The program will include dramatic readings meant to provoke reflection on what it means to “confront” torturers, both figuratively and literally (more information below). Tickets can be purchased online here or at the door.

Thanks for helping to spread the word about this event by forwarding this invitation to others than might be interested in attending.

Hopefully my readers will pass this info along as well!

Joe's Pub is at 425 Lafayette Street in Manhattan, with event scheduled at 9:30-10:45 pm. It will feature readings by Aasif Mandvi from The Daily Show, Alina Bronsky, Mohsin Hamid, Elias Khoury, Sofi Oksanen, and others. With special remarks by Jameel Jaffer, ACLU, and Larry Siems of PEN American Center.

Tickets $15/$10 at www.joespub.com or call (212) 967-7555.

Bush Signing Statements Withholding Information to Congress on Torture

Originally posted at Firedoglake

Every once in a while, a news story crops up about yet another lie or omission regarding the briefings the CIA gave to Congressional intelligence committees on their interrogation aka torture program during the Bush years. Marcy Wheeler has been assiduously covering this for months, even years now, gathering together the disparate reports from a mostly disinterested mainstream press.

A few examples will suffice.

There was the time in July 2009 when House Intelligence Chairman Silvestre Reyes complained that his committee "has been misled, has not been provided full and complete notifications, and (in at least one occasion) was affirmatively lied to." Only months before, in a well-publicized press conference, House Speaker Nancy Pelosi accused the CIA of lying to Congress. "They didn't tell us everything," Pelosi complained. The Speaker's complaints followed CIA's release of a list (PDF) that purported to show how it had briefed Congress over the years on the interrogations program. The list, in Marcy Wheeler's words, was illustrative of CIA "playing around with its obligation to inform the intelligence committees." Her deconstruction of the list is juicy reading.

Sometimes, as Wheeler also recently reported, the efforts to sabotage Congressional oversight came from within, as in early 2003 when then-new Senate Intelligence Committee chair Pat Roberts scotched all plans to send a committee staffer to review CIA interrogation sites on behalf of the committee.

What isn't often mentioned was how the CIA was given the green light to lie and obfuscate by their superiors in the Executive Branch. It's well known that former President Bush used an unprecedented amount of signing statements during his administration, nullifying dozens, if not hundred of provisions in the bills he signed. A Pulitzer Prize winning account of this was written up by Charlie Savage in the Boston Globe in 2006. One should read the entire article (as well as others on the subject by Dahlia Lithwick and John Dean), but I'm only going to mainly concentrate on the signing statements that targeted Congressional oversight demands.

Bush Tells GOP-ruled Congress Back Off

Not long after 9/11, Congress sent President Bush the "Intelligence Authorization Act for Fiscal Year 2002" (PDF) for signing into law. In a signing statement dated December 23, 2001, Bush brushed aside the first of many attempts to get Congressional notification and oversight over Bush military and intelligence policies. As is well-known, he used justifications of executive power to dismiss what he didn't like.

Section 305 of the Act amends section 502 of the National Security Act of 1947, which relates to executive branch reports to the Congress under the intelligence oversight provisions of the National Security Act. Section 305 purports to require that reports submitted to the congressional intelligence committees by the executive branch on significant anticipated intelligence activities or significant intelligence failures always be in written form, with a concise statement of facts pertinent to the report and an explanation of the significance of the activity or failure.

Section 502 of the National Security Act as amended by section 305 of the Act shall be construed for all purposes, specifically including for the purpose of the establishment of standards and procedures under section 502(c) of the National Security Act by the Director of Central Intelligence, in a manner consistent with the President's constitutional authority to withhold information the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties. [Emphasis added]

This was not a one-time protest by the President, nor the end of Congressional attempts, under both Democrats and Republicans, to obtain factual material from the military and intelligence agencies whereby to conduct oversight. There were many of these, at least sixteen by my count, over the eight years of the Bush administration. This does not count how many times signing statements were used to nullify other policies and laws passed by Congress. For a list of pertinent signing statements, with some examples of the provisions Bush wished to cancel, see here. For a full reference to all the signing statements see the Georgetown Law Library's Presidential Signing Statements Research Guide and the listing of all signing statements by George W. Bush, as well as Barack Obama, to date, here.

More Denials for Congressional Notification

As the U.S. veered to "the dark side," and began expanding its gulag of secret prisons, rendition kidnappings to torture, and the construction of new CIA torture prisons, even the GOP-led Congress asked for fig leafs of oversight. Many of these programs were undertaken as Special Access Programs (SAPs), which are highly compartmentalized and secretive. When Congress passed a law in January 2002 that all funding to initiate special access programs be prohibited "until 30 calendar days of congressional session have elapsed after the executive branch has notified the congressional defense committees of initiation of the program," Bush balked.

Although 30-day advance notice can be provided in most situations as a matter of comity, situations may arise, especially in wartime, in which the President must promptly establish special access controls on classified national security information under his constitutional grants of the executive power and authority as Commander in Chief of the Armed Forces.

The executive branch shall construe section 8007 in a manner consistent with the constitutional authority of the President.

In other words, the President could establish his super-secret intelligence and torture programs anytime he wanted, "especially" though not only "in wartime", and there was nothing Congress could do about it. Though what Congress did do was try again, and again, and again, like a modern version of Oliver Twist asking the master for more gruel.

Year after year Congress passed laws as part of different defense appropriations bills and intelligence authorization acts, calling for notification, limiting of defense funds, attachment of requirements to spending money, etc., and year after year, Bush effectively nullified those laws by executive fiat. It's no wonder CIA saw no reason they had to give briefings to Congress, as they answered only to a President who ruled, not by comity, but by "executive power and authority as Commander in Chief of the Armed Forces." In essence, during the Bush years, there was a military dictatorship.

In 2004, Congress passed the "Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005" (HTML link). In it, they tried to limit the U.S. intervention into Colombia to a maximum of 800 military personnel and 600 contractors. Moreover, no military personnel were to engage in combat operations. A Bush signing statement declared that that law would only be construed "in a manner consistent with the President's constitutional authority as Commander in Chief and to supervise the unitary executive branch."

While policies were shredded by executive fiat, Congressional oversight was almost entirely eviscerated, particularly on intelligence matters. In his December 17, 2004 signing statement for the "Intelligence Reform and Terrorism Prevention Act of 2004" (P.L. 108-458), Bush's cancellation of Congressional powers of oversight was in full throttle.

The executive branch shall construe provisions in the Act that mandate submission of information to the Congress, entities within or outside the executive branch, or the public, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information that could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties. [Emphasis added]

Bush found -- or rather David Addington, who is widely believed to have drafted many of these signing statements -- fifteen different laws that called for such mandated submissions to Congress referenced in this single bill, and identified them all as subject only to his will and decision regarding compliance. No wonder he fashioned himself, "The Great Decider."

DoJ and DTA: Two Notable Instances of Presidential Nullification

It wasn't always reporting about defense or intelligence matters that was removed from Congressional scrutiny. In late 2002, Congress passed the "21st Century Department of Justice Appropriations Authorization Act" (P.L. 107-273). This new law included provisions to provide "substantial obligations for reporting to the Congress activities of the Department of Justice involving challenges to or nonenforcement of law that conflicts with the Constitution." Bush called it an imposition upon the Executive and that he would, "in a manner consistent with the constitutional authorities of the President to supervise the unitary executive branch... withhold information the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties" (emphasis added).

The biggest flap over the signing statements came on December 30, 2005, when the president issued his statement H.R. 2863, the "Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006" (P.L. 109-148), a law which contained within it the provisions of the much-fought-over Detainee Treatment Act (DTA). The DTA was supposed to prohibit all inhumane treatment of prisoners, including those at Guantanamo, and limit techniques used in interrogations to those allowed in the Army Field Manual (AFM). (Note: The version of the Army Field Manual then in use did not include the special techniques allocated to in the version implemented nine months later in the revised AFM, primarily in its Appendix M.)

The legislation that implemented the DTA had some serious problems, including stark limitations on prisoner habeas rights and the allowance of use of evidence by torture. (See this analysis by Tom Malinowski at Human Rights Watch.) But even what limitations upon prisoner treatment and interrogation rules as it did have, Bush nullified with his typical legalistic appeal to the unitary executive.

The executive branch shall construe Title X in Division A of the Act [Detainee Treatment Act of 2005], relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

One could go on and on documenting and listing the ways in which the Bush administration attempted to block Congressional intent, and hence the nation's intent, when it came to the passage of laws and the conduct of oversight over Executive Branch affairs. Over and over again, Congress came back with attempts in the next set of appropriations or other laws to try and establish some provisions where oversight and Congressional mandate had some effect, and did this even under GOP leadership. Where they failed was in their inability to communicate what was happening to the American people. Not until 2006 was there a press conference called to complain about Executive Branch obfuscation and lies to Congress, and that came only have CIA tweaked Nancy Pelosi's nose.

President Barack Obama has kept his word, when he indicated he would not rule by presidential signing statement, or de facto line-item veto. But there are a lot of promises he has not kept -- on the FISA law, on transparency in government, on providing real reform of government, or even on cutting back entirely on torture (see this excellent article, or this New York Times op-ed). Most distressingly, he has indicated he will not pursue those who implemented torture as a policy within the Bush administration.

We have seen in the most recent historical period that Constitutional guarantees are paper-thin in 21st century America. Recent court rulings that have blatantly called out the use of torture by the CIA in its prisons and rendition sites, have gone practically ignored by the mainstream press. (See this latest excellent article by Andy Worthington on Judge Kennedy's amazing opinion in the Uthman habeas case.) Presidential/Executive power, even under Obama, is one of the most greatest dangers to Americans today. This is most notable in the Obama administration's contention that it can assassinate American citizens without due process.

The Bush signing statements are not, unfortunately, an aberrant chapter in modern American history. They were the excrescence of a process of executive expansion of power that continues even today.

Israeli Ethnic Cleansing of "Infiltrators", by Which They Mean Palestinian Families

CarolynC has an important diary up at FDL/The Seminal describing the latest legal moves by Israel to remove Palestinians from the West Bank, deporting them to the Gaza gulag, where they are jammed into one of the most densely populated, and immiserated, small regions on the planet.

Binyamin Netanyahu’s project to colonize East Jerusalem gained momentum with the first eviction of a Palestinian, Ahmad Sabah, from the West Bank to Gaza, forcibly separating him from his wife and children. Juan Cole writes that his deportation kicks off Netanyahu’s plan to ethnically cleanse the West Bank of Palestinians, making more room for Israeli colonists. He adds that Gaza, a poverty-stricken region blockaded by the Israelis, appears to have become the chosen dumping ground for the Palestinians Netanyahu plans to deport.

In an article entitled "IDF Order Will Enable Mass Deportation From West Bank," Haaretz confirms that the purpose of the policy is to enable the exile of large numbers of Palestinians to Gaza:

A new military order aimed at preventing infiltration will come into force this week, enabling the deportation of tens of thousands of Palestinians from the West Bank, or their indictment on charges carrying prison terms of up to seven years.

Despite some tut-tuts by the Obama administration, the Israelis maintain overwhelming support from the U.S. Congress, including key Democrats. In fact, as CarolynC's article points out, Sen. Chuck Schumer went apoplectic over even the most mild-mannered criticisms by the State Deparment about how Israeli actions were harming the "peace process."

On a day in which President Obama again failed to label the 1,500,000 deaths in the Armenian Genocide as “genocide,” this story of ethnic cleansing in another portion of the former Ottoman Empire is an ominous foreshadowing of greater violence and retribution to come. The actions of Congressional Democrats such as Sen. Schumer are despicable.

This is a speed-up of ethnic cleansing of the West Bank and Jerusalem that has been going on for some time. One of the most ominous aspects of the new military order is the expansion of who is considered an “infiltrator” — a word meant to conjure up the worse sorts of connotations, and place anyone so labeled as a person that can be treated with extreme prejudice.

From the Haaretz article:

The new order defines anyone who enters the West Bank illegally as an infiltrator, as well as “a person who is present in the area and does not lawfully hold a permit.” The order takes the original 1969 definition of infiltrator to the extreme, as the term originally applied only to those illegally staying in Israel after having passed through countries then classified as enemy states – Jordan, Egypt, Lebanon and Syria.

The order’s language is both general and ambiguous, stipulating that the term infiltrator will also be applied to Palestinian residents of Jerusalem, citizens of countries with which Israel has friendly ties (such as the United States) and Israeli citizens, whether Arab or Jewish. All this depends on the judgment of Israel Defense Forces commanders in the field....

Another group expected to be particularly harmed by the new rules are Palestinians who moved to the West Bank under family reunification provisions, which Israel stopped granting for several years.

The actions of the Israeli government must be condemned, and the military order rescinded. Congress must hear from its constituents that the policy of Israeli ethnic cleansing of Palestinians from the West Bank is not supported by the American people.

Chet Baker Live (Belgium 1964) : Time After Time

Take a nice Saturday break, Chet Baker-style.



If no video, try here.

Edward Horgan Speaks on Irish Government Culpability in Torture

Duke University on demand has posted Edward Horgan's talk at the the Duke University conference, "Weaving a Net of Accountability: Taking on extraordinary rendition at the state and regional level". The conference was held on April 8-10. Dr. Horgan's 10-year visa to enter the United States was withdrawn weeks before he was to attend. Many feel that it was a vindictive move by the U.S. government against a staunch critic of the U.S. policy of extraordinary rendition, and of country's like Ireland, that have cooperated with that policy, which kidnaps suspects and sends them to foreign countries, where many are tortured.

Dr. Horgan is a former Irish Defence Forces officer and co-founder of ShannonWatch, an organization that has protested the use of Shannon Airport for both renditions and U.S. military stopovers for operations aimed at the wars in Iraq and Afghanistan. I reported on the Horgan visa story here and here.



H/T to Stephen Soldz, who was also a speaker at the Duke conference

Federal Judge Grants Habeas To Gitmo Prisoner Because of Torture

Originally posted at FDL/The Seminal

It seems like just yesterday that I was talking about Andy Worthington's "Guantánamo Habeas Week." Well, as of today he can update his Guantánamo Habeas Scorecard, because the same judge who denied the habeas petition for Yasin Ismail last week, Judge Henry H. Kennedy, Jr. of the U.S. District Court, Washington, DC, approved the petition for a different prisoner, Uthman Abdul Rahim Mohammed Uthman, primarily because the evidence against him had been produced by torture. (See quote from the decision below.) The two tortured "witnesses" against Uthman were presumed al-Qaida members, also held at Guantanamo, Sharqwi Abdu Ali Al-Hajj and Sanad Yislam Ali Al Kazimi.

This brings the scorecard to 35 of 48 34 of 47 [see update at end of article] habeas cases from Guantanamo decided against the government. I don't know how many of them were due to tortured evidence. One would be too many, but it is far, far more than one. The U.S. released a cascade of evil when it decided it would torture whomever they could get their hands on, all to create a false narrative of fear, of a "homeland" under increasing attack by waves and waves of jihadists, armed with fictional "dirty bombs" and visions of heavenly virgins.

That a nation would fall, hook-line-and-sinker, for the lies of the son of a man who himself pardoned government officials who traded with a supposed national enemy so they could send guns to terrorists in Central America, would be laughable, if the lost blood and treasure were not so great. It took a gigantic terrorist attack in America, and a host of smaller but frightening anthrax attacks to push the nation into apoplexy. But rather than calm the nation, the leaders of America fanned the flames and built a serious but isolated group of terrorists into a phantasmic army for never-ending war. They used torture to extort with violence the evidence they needed, and Boeing, Raytheon, Mitre, and a host of defense and tech companies, and a generation of academia, were thrown billions of dollars to staff and plan and arm this never-ending war.

But the war drive had one flaw: it was built on lies, on tortured lies, and its legitimacy is defeated by a statistic. 35 out of 48 34 out of 47, lies, tortured and/or flimsy evidence, years spent in isolation, beaten, sleep deprived, and worse, some who didn't come out alive, all to feed a war machine whose economy dwarfs those of most countries in the world.

When will it end? How many op-eds by soldiers apologizing for atrocities will we have to bear? How vast the vengeance awaiting this nation from the sons and daughters and other relatives of those slaughtered for no reason, or tortured so some could be rich with defense company profits?

Read the latest story of another innocent granted petition for release from a government that held him for near a decade in a tropical hell because they had no evidence but what they could manufacture by coercion, and, then reflect. Consider that this decision will not allow Mr. Uthman to finally walk out of prison, because the U.S. government doesn't know what to do with him and prisoners like him. Reflect, then act.

The latest habeas decision was reported by Andy Jones at Blog of Legal Times:

A federal trial judge in Washington today granted a petition for a writ of habeas corpus from a detainee who has been held at the Guantanamo Bay, Cuba, detention facility since 2002. The judge found the government had failed to demonstrate that the detainee was a member of al-Qaida.

The Obama administration contends that Uthman Abdul Rahim Mohammed Uthman, a Yemeni citizen, traveled to Afghanistan to join al-Qaida and became a fighter and bodyguard for Osama bin Laden. Uthman, who contends he is not an al-Qaida member, argues that he went to Afghanistan to teach the Quran to children....

In a 20-page opinion [PDF], Judge Henry Kennedy Jr. of the U.S. District Court for the District of Columbia concluded that evidence was not credible because both men had been recently tortured when they made their statements.

From Judge Kennedy's unclassified decision:

The Court will not rely on the statements of Hajj or Kazimi because there is unrebutted evidence in the record that, at the time of the interrogations at which they [Al-Hajj and Kazimi] made the statements, both men had recently been tortured.

a. Evidence of torture

Uthman has submitted to the Court a declaration of Kristin B. Wilhelm, an attorney who represents Hajj, summarizing Hajj's description to her of his treatment while in custody. The declaration states that while held in Jordan, Hajj "was regularly beaten and threatened with electrocution and molestation," and he eventually "manufactured facts" and confessed to his interrogators' allegations "in order to make the torture stop." JE 142 at 2. After transfer to a secret CIA-run prison in Kabul, Afghanistan, Hajj was reportedly "kept in complete darkness and was subject to continuous loud music." Id. at 3.

Uthman has also submitted a declaration of Martha Rayner, a Professor at Fordham University Law School who represents Kazimi, regarding Kazimi's description of his treatment in detention. Rayner reports that while Kazimi was detained outside the United States, his interrogators beat him; held him naked and shackled in a dark, cold cell; dropped him into cold water while his hands and legs were bound; and sexually abused him. Kazimi told Rayner that eventually "[h]e made up his mind to say' Yes' to anything the interrogators said to avoid further torture." JE 145 ~ 13. According to Rayner's declaration, Kazimi was relocated to a prison run by the CIA where he was always in darkness and where he was hooded, given injections, beaten, hit with electric cables, suspended from above, made to be naked, and subjected to continuous loud music. Kazimi reported trying to kill himself on three occasions. He told Rayner that he realized "he could mitigate the torture by telling the interrogators what they wanted to hear." Id. ~ 34. Next, Kazimi was moved to a U.S. detention facility in Bagram, Afghanistan, where, he told Rayner, he was isolated, shackled, "psychologically tortured and traumatized by guards'desecration of the Koran" and interrogated "day and night, and very frequently." Id. ~ 37. Kazimi told Rayner that he "tried very hard" to tell his interrogators at Bagram the same information he had told his previous interrogators "so they would not hurt him." Id. ~ 42.

b. Failure to rebut

Respondents replied to these declarations by presenting as a witness a criminal investigator for CITF [Criminal Investigation Task Force] , but the testimony of the investigator fails to effectively rebut the evidence of abuse of Hajj and Kazimi. The investigator conducted interviews of Hajj and Kazimi in June 2004 at the Air Force Base in Bagram, Afghanistan at which both men were then held, as well as later that year in Guantanamo Bay. The FM40s [intelligence reports] that report each man's identification of a photograph of Uthman as Hudaifa, an Usama bin Laden bodyguard, are the investigator's summaries of the Bagram interviews. See JE 28 at 1; JE 29 at 1.5 The investigator's testimony added to the record persuasive evidence that the investigator herself did not mistreat Hajj or Kazimi and that the investigator did not observe any torture, or even any signs of abuse in the demeanor or physical state of either man, while the investigator was with them. But the investigator has no knowledge of the circumstances of either detainee's confinement before his arrival at Bagram and quite limited knowledge of his treatment there. The investigator testified to meeting with each man in an interrogation room on several days for approximately four hours at a time. The investigator did not see Hajj or Kazimi other than during those four-hour sessions and did not inquire of them, or anyone else, about their treatment in the various prisons in which they were held.

Update, Thursday morning: Andy Worthington kindly writes, "The Uthman opinion is actually from a decision made last month, so the score's still 34-13, but it's an important opinion, with the judge's explicit reference to torture. The opinion was made available last month, then inexplicably withdrawn - although the Miami Herald kept it on its website."

Chat Online with Military Attorneys Representing Guantanamo Prisoners

Virtually Speaking with Jay Ackroyd is hosting a an online discussion with two military attorneys who have represented detainees held at Guantanamo's prison. According to the website:

Lt. Col. Barry Wingard and Lt. Cmdr. Kevin Bogucki, the U.S. military attorneys for Kuwaiti Guantanamo Bay detainee Fayiz Al Kandari, will hold a virtual town hall meeting at Virtually Speaking Studios. The attorneys will share Fayiz’s story, discuss legal developments in his case, provide their views on the Obama administration’s detention policies and take questions from the audience.

Lt. Col. Wingard, a Judge Advocate General (JAG) in the Air Force, has served 26 years in the U.S. military and is a veteran of both the Bosnia and Iraq conflicts. Lt. Cmdr. Bogucki, a Judge Advocate General (JAG) in the Navy, previously represented former Kuwaiti detainee Fouad Al Rabiah, an innocent man who was released from Guantanamo Bay in December 2009.

Fayiz Al Kandari, who was sold into U.S. custody in 2001, has been imprisoned for more than eight years.

Time: April 26, 2010 from 6pm to 7pm
Location: http://slurl.com/secondlife/Virtually%20Speaking/158/138/32
Event Type: jsb
Organized By: BookemJackson Streeter for Jackson Street Books

Fayiz Mohammed Ahmed al-Kandari. Al-Kandari is a Kuwaiti citizen, who has been imprisoned at Guantanamo since 2002. Al-Kandari's case has been championed by well-known blogger GottaLaff at The Political Carnival.

As I wrote last December:

Like a number of idealistic Muslims, Fayiz al-Kandari was caught up at a young age by the suffering of Muslims in the war in Bosnia. He became very active in charity work, and this work led him to Afghanistan....

But Fayiz became one of a number of Arabs (he is originally from a well-to-do Kuwaiti family) who was sold to the Americans for bounty money.

Andy Worthington describes what happened next:

In Guantánamo, Fayiz al-Kandari’s refusal to accept that “there is no innocent person here” has marked him out as a particularly resistant prisoner — and resistant prisoners are given a particularly hard time. Over the years, he has been subjected to a vast array of “enhanced interrogation techniques,” which, as Lt. Col. Wingard described them, “have included but are not limited to sleep deprivation, physical and verbal assaults, attempts at sexual humiliation through the use of female interrogators, the “frequent flier program,” the prolonged use of stress positions, the use of dogs, the use of loud music and strobe lights, and the use of extreme heat and cold.”

Despite all this, he has not been “broken,” and has been able, unlike Fouad al-Rabiah and numerous other prisoners, to resist making false confessions about his own activities. He has also refused to make false confessions about the activities of other prisoners, despite being offered many opportunities to do so, and despite being told about others who have made false allegations against him.

Al Kandari's attorney, Major Barry Wingard, has made clear that the evidence against his client is based on far-fetched hearsay evidence. Wingard has been outspoken in his criticism of the Guantanamo military commissions and the use of "enhanced interrogation techniques" and other inhumane types of treatment.

Fayiz al-Kandari, along with over a hundred other Guantanamo prisoners, deserve their fair day in court. The prisoners who have been granted release via habeas petitions or other legal remedy, but who are still held in Guantanamo for an indefinite confinement, should be released immediately. Let them be allowed to live freely in the country that incarcerated and held them illegally, and tortured them. If there is some chargeable crime, and evidence of such crime, let them be tried as anyone would be, in a court of law, not a bogus military kangaroo court.

Andy Worthington Kicks Off "Guantánamo Habeas Week"

Andy Worthington, who has conscientiously and effectively documented the fates of hundreds of prisoners held at the U.S. prison at Guantanamo (see his book The Guantanamo Files), has posted a "Habeas Corpus Scorecard" at his website.

Surely it is a scandal that the government has been shown not to have a reason to hold 34 of the 47 Guantánamo cases brought before Federal judges with habeas petitions. In other words, the courts have refused to accept the U.S. government's claim that these people are dangerous, the "worst of the worst," in almost three-quarters of the cases that have come before them. As Worthington describes it, the explanation for this incredible statistic lies in the flimsiness of the cases. And even more:

Primarily, the judges have exposed that the government has been relying, to an extraordinary extent, on confessions extracted through the torture or coercion of the prisoners themselves, or through the torture, coercion or bribery of other prisoners, either in Guantánamo, the CIA’s secret prisons, or proxy prisons run on behalf of the CIA in other countries.

This week, Worthington plans to dedicate his postings to covering these 47 cases decided to date, in what he calls "Guantánamo Habeas Week". His first entry in the series considers the case of Yasin Qasem Muhammad Ismail, a Yemeni who was captured (or sold to U.S. forces) in Afghanistan in 2001. He was either 19 or 22 at the time (as his age is uncertain). There is plausible evidence, from his testimony and witnesses, that Ismail, a small-time jihadist at best (despite claims from the government that he was "Emir" of the Bagram front), was tortured at Guantanamo. Despite that, his habeas petition was denied by Judge Henry H. Kennedy, Jr. of the U.S. District Court, Washington, DC. His unclassified opinion in the case has not yet been released.

Worthington writes of the plight of prisoners like Ismail:

If anything, Ismail — and other prisoners who have lost their habeas petitions, like Ghaleb al-Bihani, who served as a cook for Arab forces supporting the Taliban — should have been held as prisoners of war and protected from ill-treatment according to the Geneva Conventions. On this basis, they could be held until the end of hostilities, and we would now be arguing about whether it is conceivable that an invasion to overthrow the Taliban, which began eight and a half years ago, and which met its immediate aims, leading to the fall of the Taliban as Afghanistan’s government and the election of Hamid Karzai as the Afghan President, is legitimately part of a “War on Terror” that might last forever, and that, as a result, even the most minor players in that initial conflict can be detained indefinitely.

As it stands, however, Yasin Ismail — a man who, by all accounts, never took up arms against anyone — remains imprisoned in Guantánamo on an apparently legal basis, and those of us who regard his continued detention as an overreaction, to put it mildly, must also reflect on the fact that, far from being treated humanely for the last eight years, he has been subjected to physical abuse and sexual humiliation for no justifiable reason, but that this is considered irrelevant to the case against him.

This kind of injustice is even more galling in the light, as Worthington points out, of revelations in a sworn statement by Colonel Lawrence Wilkerson, former Chief of Staff to Secretary of State Colin Powell, that the vast majority of the prisoners at Guantanamo were not dangerous at all. In fact, they were never even properly vetted, but sucked up by U.S. forces for political reasons, and neither Bush, nor Cheney, nor Rumsfeld cared a whit about the innocence of any of these people. Wilkerson says former Vice President Cheney, for instance, "had absolutely no concern that the vast majority of Guantánamo detainees were innocent, or that there was a lack of any useable evidence for the great majority of them."

From Mr. Wilkerson's filing (PDF):

With respect to the assertions by Mr. Hamad that he was wrongfully seized and detained, it became apparent to me as early as August 2002, and probably earlier to other State Department personnel who were focused on these issues, that many of the prisoners detained at Guantánamo had been taken into custody without regard to whether they were truly enemy combatants, or in fact whether many of them were enemies at all. I soon realized from my conversations with military colleagues as well as foreign service officers in the field that many of the detainees were, in fact, victims of incompetent battlefield vetting. There was no meaningful way to determine whether they were terrorists, Taliban, or simply innocent civilians picked up on a very confused battlefield or in the territory of another state such as Pakistan....

It was clear to me that, as I learned about how the majority of the Guantánamo prisoners had been detained, the initial group of 742 detainees had not been detained under the processes I was used to as a military officer. It was also becoming more and more clear that many of the men were innocent, or at a minimum their guilt was impossible to determine let alone prove in any court of law, civilian or military. If there were any evidence, the chain protecting it had been completely ignored.

So it comes as no surprise that the majority of the habeas cases have been granted by the courts. Yet still, many of these prisoners formally freed remain in Guantanamo, and others, unable to obtain a lawyer, or too depressed or ignorant to defend themselves, remain in the limbo of indefinite detention, while the Obama administration debates how to keep some of them in prison for the rest of their lives, feeding the Cheneyesque lie that these people are the worst criminals on the planet.

If some of them are criminals, then let that be decided in a court of law. Hundreds of thousands have died over the decades to make that principle stand. Let us not unceremoniously bury it because of fear-mongering.

I applaud Andy Worthington's work in telling us these prisoners' stories, and hope readers will follow his new series, and show him support. I hope readers will also look carefully at his excellent analysis behind issues such as the resuscitated military commissions, the trials of the terrorist suspects, and the continuing obeisance to the deeply flawed Authorization for the Use of Military Force passed after 9/11.

I also applaud those other news sources who are keeping track of the habeas decisions, such as The Washington Independent, Center for Constitutional Rights, and the Miami Herald. They're all worth looking at.

Bill Quigly Deconstructs Right-Wing Myths About U.S. "Socialism"

Bill Quigley has written a very well-received op-ed at Truthout, Nine Myths About Socialism in the US. The entire article is worth reading. The right-wings huffing and puffing about the socialist actions of the U.S. government are laughable, if they weren't also seriously deranged. Here's the list of myths, but you'll have to go to the article itself to see how thoroughly Quigley debunks them.

Myth No. 1: The US Government Is Involved in Class Warfare, Attacking the Rich to Lift Up the Poor.

Myth No. 2: The US Already Has the Greatest Health Care System in the World.

Myth No. 3: There Is Less Poverty in the US Than Anywhere.

Myth No. 4: The US Is Generous in Its Treatment of Families With Children.

Myth No. 5: The US Is Very Supportive of Its Workers.

Myth No. 6: Poor People Have More Chance of Becoming Rich in the US Than Anywhere Else.

Myth No. 7: The US Spends Generously on Public Education.

Myth No. 8: The US Government Is Redistributing Income From the Rich to the Poor.

Myth No. 9: The US Generously Gives Foreign Aid to Countries Across the World.

What's amazing is that the truth is the diametric opposite of each of these statements. The right-wing and their media puppets have done a great job in selling a bill of goods to the American people. But it's difficult when every day one wakes up and looks around and sees that the accepted wisdom is so different from what one has been spoon-fed.

The American people will not remain indifferent to such deceit forever, and that is why I offer Myth No. 10: The United States is the freest country in the world.

Fact: According to the New York Times, the United States imprisons one out of 99 of its people. One in nine black men, ages 20 to 34, are incarcerated. Approximately 1.6 million people who live in America, live their lives in cages.

The United States imprisons more people than any other nation in the world. China is second, with 1.5 million people behind bars. The gap is even wider in percentage terms.

Germany imprisons 93 out of every 100,000 people, according to the International Center for Prison Studies at King’s College in London. The comparable number for the United States is roughly eight times that, or 750 out of 100,000.

Accepted wisdom promulgated by the mainstream media, and particularly (but not only) by its right-wing components, such as Fox News, is mostly a pack of lies. My thanks to Bill Quigley for writing such a concise and informative expose of the mythology of a self-deluded group of ideologues.

CIA Second Taping System Reported in Zubaydah Interrogation

Originally posted at Firedoglake/The Seminal

Jason Leopold has published an important article on Abu Zubaydah and the questions swirling around the destruction of the videotapes of his interrogation by the CIA. The Truthout reporter writes that a number of intelligence sources have described a hitherto unreported second taping system that was used on Zubaydah at the black site CIA prison in Thailand where the interrogations took place in 2002-2003.

Reportedly, this second set of tapes appear to have been used to collect "’data’ about Zubaydah, specifically, how much mental and physical pain he could endure after each torture session he was subjected to that took place prior to the issuance of OLC legal memos in August 2002." This data was then used to shape the parameters of the torture program and the types of legal approval John Yoo, Jay Bybee and Steven Bradbury gave in those legal memos.

It is unknown if the purported second taping system was used on other CIA prisoners at the Thailand black site, but Leopold’s article also reports, in another important angle on the scandal, "that a similar taping system was also set up at a secret site at Guantanamo about a year later where interrogations of other high-value prisoners were also recorded." Last January, Scott Horton at Harper’s published a major expose concerning the possible killings of three prisoners in 2006 at a hitherto unrevealed secret site at Guantanamo unofficially known as Camp No. The prisoners had previously been labeled "suicides" by camp officials.

The issue of the tapes disposal has been under criminal investigation for many months by Special Prosecutor John Durham. Last August, Attorney General Holder also picked Mr. Durham to lead an inquiry into the abuse of prisoners subjected to the CIA’s interrogation program.

The investigation into the destruction of the tapes has included grand jury testimony by some CIA principals and a grant of immunity to CIA attorney John McPherson, who, according to the Washington Post, "reviewed the tapes years before they were destroyed to determine whether they diverged from written records about the interrogations."

Leopold is now reporting that the Senate Intelligence Committee has decided to look into the situation surrounding Abu Zubaydah’s CIA interrogation:

The panel will scrutinize thousands of pages of highly classified documents related to Zubaydah’s detention and torture to determine, among other things, whether the techniques he was subjected to [were] accurately reflected in CIA cable traffic sent back to Langley, whether he ever provided actionable intelligence to his torturers, and how the CIA and other government agencies came to rely on flawed intelligence that led the Bush administration to classify him as the No. 3 person in al-Qaeda and its first high-value detainee, Hill sources said.

As was reported in May 2009, FBI interrogator Ali Soufan, who was one of the early interrogators of Mr. Zubaydah, in his prepared statement to the Senate Armed Services Committee investigating prisoner abuse, mentioned the experimental nature of the CIA’s interrogation methods no less than four times. Mr. Zubaydah himself told the International Committee of the Red Cross that he heard or he suspected the CIA was experimenting with torture techniques upon him. I reported at the time:

It seems likely that Abu Zubaydah was a primary subject of JPRA/SERE’s reverse-engineering of torture techniques, using the paradigm of psychologist and former American Psychological Association president Martin Seligman’s theory of "learned helplessness."

According to a report last month by Mr. Leopold, a national security official said that Abu Zubaydah was used as an "experiment. A guinea pig." News of a second taping system, used to gather specific kinds of psychological or psychiatric data on the CIA’s interrogation subject(s), appear at the same time as revelations stemming from a release of CIA documents to the ACLU that describe CIA officials asking for "instructions" regarding the "disposition of hard drives and magnetic media" associated with the torture of Abu Zubaydah. Marcy Wheeler has been following a number of issues associated with the release of these documents at her Emptywheel blog.

Bush Signing Statements and Intelligence Briefings

History of Signing Statements (Sourcewatch)

Signing Statement for H.R. 2883, the "Intelligence Authorization Act for Fiscal Year 2002" (P.L. 107-108) [Dec. 28., 2001]

Today, I have signed into law H.R. 2883, the "Intelligence Authorization Act for Fiscal Year 2002." The Act authorizes appropriations to fund United States intelligence activities, including activities essential to success in the war against global terrorism. Regrettably, one provision of the Act falls short of the standards of comity and flexibility that should govern the relationship between the executive and legislative branches on sensitive intelligence matters and, in some circumstances, would fall short of constitutional standards.

Section 305 of the Act amends section 502 of the National Security Act of 1947, which relates to executive branch reports to the Congress under the intelligence oversight provisions of the National Security Act. Section 305 purports to require that reports submitted to the congressional intelligence committees by the executive branch on significant anticipated intelligence activities or significant intelligence failures always be in written form, with a concise statement of facts pertinent to the report and an explanation of the significance of the activity or failure.

Section 502 of the National Security Act as amended by section 305 of the Act shall be construed for all purposes, specifically including for the purpose of the establishment of standards and procedures under section 502(c) of the National Security Act by the Director of Central Intelligence, in a manner consistent with the President's constitutional authority to withhold information the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties. Section 502 shall also be construed in a manner consistent with the statutory responsibility of the Director of Central Intelligence to protect intelligence sources and methods and other exceptionally sensitive matters.

Signing Statement for H.R. 3338, the "Department of Defense and Emergency Supplemental Appropriations for Recovery from and Response to Terrorist Attacks on the United States Act, 2002" (P.L. 107-117) [Jan. 10, 2002]

Section 8007 of the Act prohibits use of funds to initiate a special access program until 30 calendar days of congressional session have elapsed after the executive branch has notified the congressional defense committees of initiation of the program.

The U.S. Supreme Court has stated that the President's authority to classify and control access to information bearing on national security flows from the Constitution and does not depend upon a legislative grant of authority.

Although 30-day advance notice can be provided in most situations as a matter of comity, situations may arise, especially in wartime, in which the President must promptly establish special access controls on classified national security information under his constitutional grants of the executive power and authority as Commander in Chief of the Armed Forces.

The executive branch shall construe section 8007 in a manner consistent with the constitutional authority of the President.

Signing Statement for H.R. 5010, the "Department of Defense Appropriations Act, 2003" (P.L. 107-248) [October 23, 2002]

Sections 8007 and 8111 of the Act prohibit the use of funds to initiate a special access program or to initiate a new start program, unless the congressional defense committees receive advance notice of such initiation. The U.S. Supreme Court has stated that the President's authority to classify and control access to information bearing on national security flows from the Constitution and does not depend upon a legislative grant of authority. Although the advance notice contemplated by sections 8007 and 8111 can be provided in most situations as a matter of comity, situations may arise, especially in wartime, in which the President must act promptly under his constitutional grants of executive power and authority as Commander in Chief of the Armed Forces while protecting certain extraordinarily sensitive national security information. The executive branch shall construe sections 8007 and 8111 in a manner consistent with the constitutional authority of the President.

Signing Statement for H.R. 5011, the "Military Construction Appropriations Act, 2003" (P.L. 107-249) [October 23, 2002]

Sections 107, 110, and 113 of the Act provide for notice to the Congress of relocation of activities between military installations, initiation of a new installation abroad, or U.S. military exercises involving $100,000 in construction costs. The U.S. Supreme Court has stated that the President's authority to classify and control access to information bearing on national security flows from the Constitution and does not depend upon a legislative grant of authority. Although the notice can be provided in most situations as a matter of comity, situations may arise, especially in wartime, in which the President must act promptly under his constitutional grants of executive power and authority as Commander in Chief while protecting sensitive national security information. The executive branch shall construe these sections in a manner consistent with the President's constitutional authority.

Signing Statement for H.R. 2215, the "21st Century Department of Justice Appropriations Authorization Act" (P.L. 107-273) [November 4, 2002]

Section 202 of the Act adds a new section 530D to title 28, United States Code, that purports to impose on the executive branch substantial obligations for reporting to the Congress activities of the Department of Justice involving challenges to or nonenforcement of law that conflicts with the Constitution. The executive branch shall construe section 530D of title 28, and related provisions in section 202 of the Act, in a manner consistent with the constitutional authorities of the President to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties. To implement section 202(b)(3) of the Act, the Attorney General, on my behalf, shall advise the heads of executive agencies of the enactment of section 202 and of this direction concerning construction of that section and section 530D of title 28.

Signing Statement for H.R. 4628, the "Intelligence Authorization Act for Fiscal Year 2003" (P.L. 107-306) [November 27, 2002]

Many provisions of the Act, including section 342 and title VIII, establish new requirements for the executive branch to disclose sensitive information. As I have noted in signing last year's Intelligence Authorization Act and other similar legislation, the executive branch shall construe such provisions in a manner consistent with the President's constitutional authority to withhold information the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties.

Signing Statement for H.R. 4546, the "Bob Stump National Defense Authorization Act for Fiscal Year 2003" (P.L. 107-314)

[December 2, 2002]

A number of provisions of the Act establish new requirements for the executive branch to furnish sensitive information to the Congress on various subjects, including sections 221, 1043, 1065 (enacting 10 U.S.C. 127b(f)(2)(C)(ii) and (iii)), 1205, 1206, 1207, and 1209 (enacting section 722 of Public Law 104-293). The executive branch shall construe such provisions in a manner consistent with the President's constitutional authority to with-hold information the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties.

Signing Statement for H.R. 4664, the "National Science Foundation Authorization Act of 2002" (P.L. 107-368) [December 19, 2002]

Several provisions of the Act, including sections 14(a), 14(b) (amending section 201(a)(1) of the National Science Foundation Authorization Act of 1998), and 18(d) call for the submission by the executive branch of specified information or recommendations to the Congress. The executive branch shall construe such provisions in a manner consistent with the President's constitutional authority to supervise the unitary executive branch, to protect the deliberative processes of the Executive, and to submit to the Congress such recommendations as the President judges necessary and expedient.

Signing Statement for H.R. 2658, the "Department of Defense Appropriations Act, 2004" (P.L. 108-87) [October 1, 2003]

Sections 8007 and 8103 of the Act prohibit the use of funds to initiate a special access program or to initiate a new start program, unless the congressional defense committees receive advance notice. The Supreme Court of the United States has stated that the President's authority to classify and control access to information bearing on the national security flows from the Constitution and does not depend upon a legislative grant of authority. Although the advance notice contemplated by sections 8007 and 8103 can be provided in most situations as a matter of comity, situations may arise, especially in wartime, in which the President must act promptly under his constitutional grants of executive power and authority as Commander in Chief of the Armed Forces while protecting certain extraordinarily sensitive national security information. The executive branch shall construe sections 8007 and 8103 in a manner consistent with the constitutional authority of the President.

Signing Statement for H.R. 3289, the "Emergency Supplemental Appropriations Act for Defense and for the Reconstruction of Iraq and Afghanistan, 2004'' (P.L. 108-106) [November 6, 2003]

Sections 1108 and 1113 of the Act prohibit the use of appropriated funds for certain activities unless the congressional defense committees receive advance notice. Although such advance notice can be provided in most situations as a matter of comity, situations may arise in which the President must act promptly pursuant to his constitutional responsibilities while protecting certain extraordinarily sensitive national security information. The executive branch shall construe these sections in a manner consistent with the constitutional authority of the
President to classify and control access to information bearing on the national security.

The Act incorrectly refers to the Coalition Provisional Authority (CPA) as if it were established pursuant to U.N. Security Council resolutions. The executive branch shall construe the provision to refer to the CPA as established under the laws of war for the occupation of Iraq.

Section 2203(b)(2)(C) requires executive agency heads to furnish certain reports to the chairman and ranking minority member of ``[e]ach committee that the head of the executive agency determines has legislative jurisdiction for the operations of such department or agency to which the information related.'' The executive branch shall, as a matter of comity and for the very narrow purpose of determining to whom an agency will submit the report under this provision, determine the legislative jurisdiction of congressional committees....

Title III of the Act creates an Inspector General (IG) of the CPA. Title III shall be construed in a manner consistent with the President's constitutional authorities to conduct the Nation's foreign affairs, to supervise the unitary executive branch, and as Commander in Chief of the Armed Forces. The CPA IG shall refrain from initiating, carrying out, or completing an audit or investigation, or from issuing a subpoena, which requires access to sensitive operation plans, intelligence matters, counterintelligence matters, ongoing criminal investigations by other administrative units of the Department of Defense related to national security, or other matters the disclosure of which would constitute a serious threat to national security. The Secretary of Defense may make exceptions to the foregoing direction in the public interest.

Provisions of the Act that require disclosure of information, including section 3001(h)(4)(B) of the Act, shall be construed in a manner consistent with the President's constitutional authority to withhold information that could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties.

Signing Statement for H.R. 1588, the National Defense Authorization Act for Fiscal Year 2004 (P.L. 108-136) [November 24, 2003]

Section 1442(b)(2)(C) requires executive agency heads to furnish certain reports to the chairman and ranking minority member of "[e]ach committee that the head of the executive agency determines has legislative jurisdiction for the operations of such department or agency to which the information relates." The executive branch shall, as a matter of comity and for the very narrow purpose of determining to whom a department or agency will submit a report under this provision, determine the legislative jurisdiction of congressional committees.

Signing Statement for H.R. 2417, the "Intelligence Authorization Act for Fiscal Year 2004" (P.L. 108-177) [December 13, 2003]

Many provisions of the Act, including section 106 and subtitle D of title III of the Act, seek to require the executive branch to furnish information to the Congress on various subjects. The executive branch shall construe the provisions in a manner consistent with the President's constitutional authority to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties....

Section 502 purports to place restrictions on use of the U.S. Armed Forces and other personnel in certain operations. The executive branch shall construe the restrictions -in section 502 as advisory in nature, so that the provisions are consistent with the President's constitutional authority as Commander in Chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch.

Example of Section 106:

SEC. 106. INCORPORATION OF REPORTING REQUIREMENTS.

(a) In General.--Each requirement to submit a report to the congressional intelligence committees that is included in the joint explanatory statement to accompany the conference report on the bill H.R. 2417 of the One Hundred Eighth Congress, or in the classified annex to this Act, is hereby incorporated into this Act, and is hereby made a requirement in law.
(b) Congressional Intelligence Committees Defined.--In this section, the term "congressional intelligence committees'' means--
(1) the Select Committee on Intelligence of the Senate; and
(2) the Permanent Select Committee on Intelligence of the House of Representatives.

Signing Statement for H.R. 4613, the "Department of Defense Appropriations Act, 2005" (P.L. 108-287) [August 5, 2004]

Sections 8007, 8011, and 8106 of the Act prohibit the use of funds to initiate a special access program, a new overseas installation, or a new start program, unless the congressional defense committees receive advance notice. The Supreme Court of the United States has stated that the President's authority to classify and control access to information bearing on the national security flows from the Constitution and does not depend upon a legislative grant of authority. Although the advance notice contemplated by sections 8007, 8011, and 8106 can be provided in most situations as a matter of comity, situations may arise, especially in wartime, in which the President must act promptly under his constitutional grants of executive power and authority as Commander in Chief of the Armed Forces while protecting certain extraordinarily sensitive national security information. The executive branch shall construe sections 8007, 8011, and 8106 in a manner consistent with the constitutional authority of the President.
The First of Two Signing Statements for H.R. 4200, the "Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005" (P.L. 108-375) [October 29, 2004]

The executive branch shall construe section 1021, purporting to place restrictions on the use of the U.S. Armed Forces in certain operations, and sections 1092 and 1205, relating to captured personnel and to contractor support personnel, in a manner consistent with the President's constitutional authority as Commander in Chief and to supervise the unitary executive branch.

Sec. 1021 USE OF FUNDS FOR UNIFIED COUNTERDRUG AND COUNTERTERRORIST CAMPAIGN IN COLOMBIA.
(c) Numerical Limitation on Assignment of United States Personnel.--
Notwithstanding section 3204(b) of the Emergency Supplemental Act, 2000 (Division B of Public Law 106-246; 114 Stat. 575), as amended by the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2002 (Public Law 107-115; 115 Stat. 2131), the number of United States personnel assigned to conduct activities in Colombia in connection with support of Plan Colombia under subsection (a) in fiscal years 2005 and 2006 shall be subject to the following limitations:

(1) The number of United States military personnel assigned for temporary or permanent duty in Colombia in connection with support of Plan Colombia may not exceed 800.
(2) The number of United States individual citizens retained as contractors in Colombia in connection with support of Plan Colombia who are funded by Federal funds may not exceed 600.

(d) Limitation on Participation of United States Personnel.--No United States Armed Forces personnel, United States civilian employees, or United States civilian contractor personnel employed by the United States may participate in any combat operation in connection with assistance using funds pursuant to the authority in subsection (a), except for the purpose of acting in self defense or of rescuing any United States citizen, including any United States Armed Forces personnel, United States civilian employee, or civilian contractor employed by the United States.

A number of provisions of the Act, including sections 112(b)(6), 213(c), 513(e)(1), 912(d), 1021(f), 1022(b), 1042, 1047, 1202, 1204, 1207(c) and (d)(2), 1208, 1214, and 3166(a) amending section 3624 in Public Law 106-398, call for the executive branch to furnish information to the Congress, a legislative agent, or other entities on various subjects. The executive branch shall construe such provisions in a manner consistent with the President's constitutional authority to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties.

Signing Statement for S. 2845, the "Intelligence Reform and Terrorism Prevention Act of 2004" (P.L. 108-458) [December 17, 2004]

The executive branch shall construe provisions in the Act that mandate submission of information to the Congress, entities within or outside the executive branch, or the public, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information that could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties. Such provisions include sections 1022, 1061, 3001(f)(4), 5201, 5403(e), and 8403, and sections 101A(f) and 102A(c)(7) of the National Security Act of 1947 as amended by sections 1011 and 1031, section 703(b), 704, and 706(f) of the Public Interest Declassification Act of 2000 as amended by section 1102, section 601 of the Foreign Intelligence Surveillance Act of 1978 as amended by section 6002, section 207 of the Afghan Freedom Support Act of 2002 as amended by section 7104, section 112(b) of title 1, United States Code, as amended by section 7120, and section 878 of the Homeland Security Act as amended by section 7407.

101A(f) Recommendations to Congress.--Any member of the Joint
Intelligence Community Council may make such recommendations to Congress
relating to the intelligence community as such member considers
appropriate.''.

Signing Statement for H.R. 4548, the "Intelligence Authorization Act for Fiscal Year 2005" (P.L. 108-487) [December 23, 2005]

The executive branch shall construe provisions in the Act, including sections 105, 107, and 305, that mandate submission of information to the Congress, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information that could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties.

Section 502 of the Act purports to place restrictions on use of the U.S. Armed Forces and other personnel in certain operations. The executive branch shall construe the restrictions in that section as advisory in nature, so that the provisions are consistent with the President's constitutional authority as Commander in Chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch.

Signing Statement for H.R. 4986, the "National Defense Authorization Act for Fiscal Year 2008" [January 28, 2008]

Provisions of the Act, including sections 841, 846, 1079, and 1222, purport to impose requirements that could inhibit the President's ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and to execute his authority as Commander in Chief. The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President.

Note: 841 set up a "commission on wartime contracting", appointed by members of Congress, including coverage for "Federal agency contracting for the performance of security functions in Iraq and Afghanistan.

846 set up greater protections for whistleblowers working for contractors.

SEC. 1079. COMMUNICATIONS WITH THE COMMITTEES ON ARMED SERVICES OF THE SENATE AND THE HOUSE OF REPRESENTATIVES.

(a) NOTE: Deadline. Reports. Requests of Committees.--The
Director of the National Counterterrorism Center, the Director of a
national intelligence center, or the head of any element of the
intelligence community shall, not later than 45 days after receiving a
written request from the Chair or ranking minority member of the
Committee on Armed Services of the Senate or the Committee on Armed
Services of the House of Representatives for any existing intelligence
assessment, report, estimate, or legal opinion relating to matters
within the jurisdiction of such Committee, make available to such
committee such assessment, report, estimate, or legal opinion, as the
case may be.

1222 forbid the use of funds for any permanent military installations in Iraq, or to exercise any U.S. control over the oil resources of Iraq.

Signing Statement for H.R. 2863, the "Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006" (P.L. 109-148) [December 30, 2005] [covers signing statement for Detainee Treatment Act of 2005]

Sections 8007, 8011, and 8093 of the Act prohibit the use of funds to initiate a special access program, a new overseas installation, or a new start program, unless the congressional defense committees receive advance notice. The Supreme Court of the United States has stated that the President's authority to classify and control access to information bearing on the national security flows from the Constitution and does not depend upon a legislative grant of authority. Although the advance notice contemplated by sections 8007, 8011, and 8093 can be provided in most situations as a matter of comity, situations may arise, especially in wartime, in which the President must act promptly under his constitutional grants of executive power and authority as Commander in Chief of the Armed Forces while protecting certain extraordinarily sensitive national security information. The executive branch shall construe these sections in a manner consistent with the constitutional authority of the President....

The executive branch shall construe Title X in Division A of the Act [Detainee Treatment Act of 2005], relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action. Finally, given the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005.