Survivors File UN Complaint Against Canada for Failing to Prosecute George W. Bush for Torture

The following was posted today at Center for Constitutional Rights, and reposted here for its inherent interest, and with gratitude to Center for Constitutional Rights and the Canadian Centre for International Justice, and the four men pursuing their complaint, for continuing to stand for justice and accountability for state crimes.

November 14, 2012, Vancouver and New York— Today, four torture survivors filed a complaint against Canada with the United Nations Committee against Torture for the country’s failure to investigate and prosecute former President George W. Bush during his visit to British Columbia last year. As a signatory to the Convention against Torture, Canada has an obligation to investigate and prosecute a torture suspect on its soil. This is the first time a complaint concerning torture allegations against a high-level U.S. official has been filed with the U.N. Committee. The Canadian Centre for International Justice (CCIJ) and the U.S.-based Center for Constitutional Rights (CCR) filed the complaint on the men’s behalf.

“Canada has the jurisdiction and the obligation to prosecute a torture suspect present in Canada, including a former head of state, and even one from a powerful country,” said Matt Eisenbrandt, CCIJ’s Legal Director. “Canada’s failure to conduct a criminal investigation and prosecution against Mr. Bush when there was overwhelming evidence against him constitutes a clear violation of its international obligations and its own policy not to be a safe haven for torturers.”

The four men – Hassan bin Attash, Sami el-Hajj, Muhammed Khan Tumani and Murat Kurnaz – found their long quest for justice stymied in October 2011. Canada’s Attorney General refused to conduct a criminal investigation against Mr. Bush, and the Attorney General of British Columbia swiftly intervened to shut down a private criminal prosecution submitted to a provincial court in her jurisdiction during Mr. Bush’s visit. This occurred despite the groups’ submission of a 69-page draft indictment and approximately 4000 pages of evidence against Bush consisting of extensive reports and investigations conducted by multiple U.S. agencies and the United Nations.

The Committee against Torture can require Canada to explain the actions that led to the case being closed without any investigation and can then issue a decision on whether Canada has breached its obligations under the convention. If the committee finds Canada in violation, it can specify appropriate remedial measures.

“Through this process, the world can learn whether Canada’s actions were grounded in law or in politics. Canada’s refusal to investigate and prosecute George W. Bush marked a low-point in the ongoing struggle to end impunity for torturers and denied these men the opportunity to achieve some measure of justice,” said Katherine Gallagher, Senior Staff Attorney at CCR and legal representative for the men.“They now call upon the Committee to send a clear message that states must uphold their obligations under the Convention against Torture and cannot allow other factors – including political considerations – to interfere with the commitment to end impunity for torturers.”

Ratified by 153 countries around the world, the U.N. Convention Against Torture requires states to investigate alleged torturers present on their soil and submit them for prosecution—or extradite them to another country for prosecution. Canada implemented this provision of the Convention into its domestic criminal code and explicitly authorizes prosecution for torture occurring outside Canadian borders. Canada, along with 55 other countries, allows individuals to file petitions with the U.N. Committee for alleged breaches of the Convention; the United States has not signed on to this provision.

In both Afghanistan and Guantánamo, the four men who submitted the complaint survived inhumane treatment including beatings, being hung from walls or ceilings, sleep, food and water deprivation, and exposure to extreme temperatures. U.S. officials eventually released Kurnaz after five years, and both el-Hajj, a reporter with Al-Jazeera, and Khan Tumani, 17 at the time of his detention, after approximately seven years, without ever bringing charges against them. Bin Attash, only 16 when he was detained, remains at Guantánamo, though he has never been formally charged with any wrongdoing.

Earlier this year, CCIJ and CCR submitted a report about the Bush torture case to the Committee against Torture during an examination of Canada’s compliance with the Convention. The Committee, in its concluding observations, called on the Canadian government to “take all necessary measures with a view to ensuring the exercise of the universal jurisdiction over persons responsible for acts of torture, including foreign perpetrators who are temporarily present in Canada.”

In February 2011, the Center for Constitutional Rights, on behalf of two survivors and supported by CCIJ and other human rights organizations, attempted to initiate criminal proceedings against Bush ahead of a scheduled visit to Switzerland. Bush cancelled the trip after news of the prosecution, and the apparent unwillingness of Swiss authorities to stop it, became known.

Read the complaint at CCR’s case page.

The Significance of HRW's New Call to Prosecute Bush Administration Officials for Torture

Cross-posted from MyFDL/Firedoglake

Human Rights Watch (HRW) released a new report Tuesday. As they stated in the press release announcing the 107-page report, "Getting Away with Torture: The Bush Administration and Mistreatment of Detainees" (HTML, PDF), there is "overwhelming evidence of torture by the Bush administration." As a result, President Barack Obama is obliged "to order a criminal investigation into allegations of detainee abuse authorized by former President George W. Bush and other senior officials."

In particular, HRW singled out "four key leaders" in the torture program. Besides former President George W. Bush, the report indicts former Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, and CIA Director George Tenet. But others remain possible targets of investigation and prosecution. According to the report:

Such an investigation should also include examination of the roles played by National Security Advisor Condoleezza Rice and Attorney General John Ashcroft, as well as the lawyers who crafted the legal “justifications” for torture, including Alberto Gonzales (counsel to the president and later attorney general), Jay Bybee (head of the Justice Department's Office of Legal Counsel (OLC)), John Rizzo (acting CIA general counsel), David Addington (counsel to the vice president), William J. Haynes II (Department of Defense general counsel), and John Yoo (deputy assistant attorney general in the OLC).

But the key passage in the HRW report concerns the backing for international prosecutions, under the principle in international law of "universal jurisdiction," which was used back in 1998 by Spanish Judge Baltasar Garzón to indict former Chilean dictator Augusto Pinochet for genocide and murder.

Unless and until the US government pursues credible criminal investigations of the role of senior officials in the mistreatment of detainees since September 11, 2001, exercise universal jurisdiction or other forms of jurisdiction as provided under international and domestic law to prosecute US officials alleged to be involved in criminal offenses against detainees in violation of international law. [emphasis added]

Indeed, in an important section of the report, HRW details the failures and successes of pursuing such international prosecutions in the face of U.S. prosecutors' failure to act and investigate or indict high administration officials for war crimes. This is even more important when one considers that the Obama administration has clearly stated its intention to not investigate or prosecute such crimes, going after a handful of lower-level interrogators for crimes not covered by the Bush administration's so-called "legal" approvals for torture provided by the infamous Yoo/Bybee/Levin/Bradbury memos issued by the Office of Legal Counsel.

Nor has Congress shown even a smidgen of appetite for pursuing further accountability: not one Congressman or Senator has stepped forward as yet to endorse HRW's new call. Instead, they demonstrated their obsequiousness by approving Obama's nomination of General David Petraeus as new CIA director 94-0, despite the fact that Petraeus has been implicated in the organization of counter-terror death squads in Iraq, and was in charge of training Iraqi security forces who repeatedly were documented as engaging in widespread torture. It was during Petraeus's tenure as chief of such training for the coalition forces, that the U.S. implemented the notorious Fragmentary Order (FRAGO) 242, which commanded U.S. forces not to intervene in cases of Iraqi governmental torture should they come across such it (which they often did). No one during Petraeus's testimony in his nomination hearings even questioned him about this.

Why this report now?

I asked Andrea Prasow, a senior counsel at Human Rights Watch, why this report was issued now, noting that some on the left had already questioned the timing of HRW's action.

"Because it really needed to be done," Prasow explained. She noted the recent admissions by former President Bush and Vice President Cheney that they had approved waterboarding. Furthermore, "following the killing of [Osama] Bin Laden, we saw the immediate response by some that torture and the enhanced interrogation techniques led to the capture of Bin Laden. And it became a part of normal debate about torture. It shows how fragile is the current commitment not to torture."

Prasow also noted the recent closure of the Durham investigation, which resulted in the decision to criminally investigate the deaths of two detainees in CIA custody, while 99 other cases referred to his office were closed. I asked her whether she felt, as I do, that the announcement of the two investigations were meant to forestall attempts by European (especially Spanish) prosecutors to pursue "universal jurisdiction" prosecutions of U.S. officials for torture.

"I don't see how there's a defensible justification that the investigations Durham announced can do that," Prasow said. "It's pretty clear that there should be an investigation into the deaths of these detainees," she added, "but it's so clear the investigation is very limited. The scope of the investigation is the most important part. Even if Durham had investigated the 100 or so cases that exceeded the legal authorities, it wouldn't be sufficient. What about the people who wrote the legal memos? Who told them to write the memos?" she said, emphasizing the fact that Durham's investigation was limited by Obama and Attorney General Eric Holder to only CIA crimes, and only those that supposedly exceeded the criteria for "enhanced interrogation" laid out in a number of administration legal memos. The torture, Prasow noted, was "throughout the military" as well, including "hundreds or thousands" tortured at sites in Iraq, Afghanistan and Guantanamo.

Prasow noted that the Obama administration has made it policy to block attempts by torture victims to get compensation for torture, asserting a policy of protecting "state secrets" to shut down court cases. "But there are other ways of providing redress," she said, adding that "providing redress is part of international laws." The HRW report itself states, "Consistent with its obligations under the Convention against Torture, the US government should ensure that victims of torture obtain redress, which may include providing victims with compensation where warranted outside of the judicial context."

The new HRW report comes on the heels of a controversy roiling around a proposed United Kingdom governmental inquiry into torture. A number of British human rights and legal agencies have said they would boycott the UK proceedings as a "whitewash." As Andy Worthington put it the other day:

As a result of pandering to the Americans’ wishes, the terms of reference are “so restrictive,” as the Guardian described it, that JUSTICE, the UK section of the International Commission of Jurists, warned that the inquiry “was likely to fail to comply with UK and international laws governing investigations into torture.” Eric Metcalfe, JUSTICE’s director of human rights policy, said that the rules “mean that the inquiry is unlikely to get to the truth behind the allegations and, even if it does, we may never know for sure. However diligent and committed Sir Peter [Gibson] and his team may be, the government has given itself the final word on what can be made public.”

Andrea Prasow echoed Metcalfe's fears, saying HRW had "some concerns about how much information [in the UK inquiry] was going to be kept secret. I think transparency, making it as public as possible, is most important."

The fight for transparency also makes HRW's call for prosecutions of high government officials, along with "an independent, nonpartisan commission, along the lines of the 9-11 Commission, [that] should be established to examine the actions of the executive branch, the CIA, the military, and Congress, with regard to Bush administration policies and practices that led to detainee abuse," very timely. In a column the other day at Secrecy News -- Pentagon Tightens Grip on Unclassified Information -- Steven Aftergood reported on a Department of Defense proposed new rule regarding classification. While the Obama administration is supposedly on record for greater governmental transparency, the new rule imposes "new safeguard requirements on 'prior designations indicating controlled access and dissemination (e.g., For Official Use Only, Sensitive But Unclassified, Limited Distribution, Proprietary, Originator Controlled, Law Enforcement Sensitive).'"

According to Aftergood, "By 'grandfathering' those old, obsolete markings in a new regulation for defense contractors, the DoD rule would effectively reactivate them and qualify them for continued protection under the new Controlled Unclassified Information (CUI) regime, thereby defeating the new policy." Even worse (if possible), "the proposed rule says that any unclassified information that has not been specifically approved for public release must be safeguarded. It establishes secrecy, not openness, as the presumptive status and default mode for most unclassified information."

Much of what we know about the Bush-era torture program is due to the work of the ACLU and Center for Constitutional Rights, who have used the Freedom of Information Act to gather hundreds of documents, if not thousands, that document the paper trail surrounding the crimes of the Bush administration. Reporters and investigators like Jane Mayer, Philippe Sands, Alfred McCoy, and Jason Leopold have also contributed much to our understanding of what occurred during the Bush years. The work of investigators going back years demonstrates that U.S. research into and propagation of torture around the world goes back decades.

The Senate Armed Services Committee has also produced an impressive, if still partially redacted, investigation (large PDF) into detainee abuse by the Department of Defense. Their report, for instance, concluded regarding torture at Guantanamo that “Secretary of Defense Donald Rumsfeld's authorization of interrogation techniques at Guantanamo Bay was a direct cause of detainee abuse there."

When one puts together the accelerated emphasis on "state secrets"; the Obama political program of "not looking back" in regards to U.S. war crimes (while supposedly pursuing accountability for torture and war crimes committed by other countries); the political passivity, if not cowardice of Congress; the fact that Obama "has not been transparent on the rendition issue, not even saying what its policy is," according to Andrea Prasow; and finally the lies and propaganda spewed forth by the former Administration's key figures and their proxies, one can only agree with HRW that enough is enough. The time for investigations and prosecutions into torture and rendition is now.

And if they won't listen in Washington, D.C., perhaps they will in Madrid. Or some other intrepid prosecutor in -- who knows? -- Brazil or Argentina or Chile will pay back America, as a matter of poetic but also real justice for the crimes endured by their societies when the U.S. helped organize torture and terror in their countries only a generation ago. There were no U.S. investigations into actions of government figures then, and now we are faced with another set of atrocities produced by our own government. If we do not act now, what will our children face?

CCR Announces Bush Indictment for Convention Against Torture Signatory States

While the following press release from Center for Constitutional Rights, released last week, only describes the potential indictment of George W. Bush for torture, it's drafting represents a significant piece of work. The indictment may yet be served (though I am not holding my breath), and in any case represents, as intended, a template for the use of any international prosecutor who wishes to pursue prosecution of the crimes against humanity by high officials of the United States involved in torture and rendition.

CCR Announces Bush Indictment for Convention Against Torture Signatory States

No Immunity for Former Presidents Under Law

February 7, 2011, Geneva and New York – Today, two torture victims were to have filed criminal complaints, with more than 2,500-pages of supporting material, in Geneva against former U.S. President George W. Bush, who was due to speak at an event there on 12 February. Swiss law requires the presence of the torturer on Swiss soil before a preliminary investigation can be opened. When Bush cancelled his trip to avoid prosecution, the human rights groups who prepared the complaints made it public and announced that the Bush Torture Indictment would be waiting wherever he travels next. The Indictment serves as the basis on which to prepare country-specific, plaintiff-specific indictments, with additional evidence and updated information. According to international law experts at the New York-based Center for Constitutional Rights (CCR) and the Berlin-based European Center for Constitutional and Human Rights (ECCHR), former presidents do not enjoy special immunity under the Convention Against Torture (CAT).

“Waterboarding is torture, and Bush has admitted, without any sign of remorse, that he approved its use,” said Katherine Gallagher, Senior Staff Attorney at CCR and Vice President of the International Federation for Human Rights (FIDH). “The reach of the Convention Against Torture is wide – this case is prepared and will be waiting for him wherever he travels next. Torturers – even if they are former presidents of the United States – must be held to account and prosecuted. Impunity for Bush must end.”

While the U.S. has thus far failed to comply with its obligations under the Convention Against Torture to prosecute and punish those who commit torture, all other signatories, too, are obligated to prosecute or extradite for prosecution anyone present in their territory they have a reasonable basis for believing has committed torture. If the evidence warrants, as the Bush Torture Indictment contends it does, and the U.S. fails to request the extradition of Bush and others to face charges of torture there, CAT signatories must, under law, prosecute them for torture.

In a statement this weekend, the groups who organized the complaints said, “Whatever Bush or his hosts say, we have no doubt he cancelled his trip to avoid our case. The message from civil society is clear – If you’re a torturer, be careful in your travel plans.”

The complaints that had been scheduled to be filed on Monday asked that the General Prosecutor of the Canton of Geneva investigate allegations that men were tortured as part of the Bush administration’s well-documented torture program. Bush proudly recounted in his recently published memoir that when asked in 2002 to if it was permissible to waterboard a detainee – a recognized act of torture – he replied “damn right.”

Monday, February 7, is the ninth anniversary of the day Bush decided the Geneva Conventions did not apply to ‘enemy combatants.’

According to the Bush Indictment, which was written on behalf of torture victims by CCR and ECCHR, former President Bush bears individual and command responsibility for the acts of his subordinates which he ordered, authorized, condoned or otherwise aided and abetted, as well as for the violations committed by his subordinates which he failed to prevent or punish.

“Bush is a torturer and deserves to be remembered as such,” said Gavin Sullivan, Solicitor and Counterterrorism Program Manager, ECCHR. “He bears ultimate responsibility for authorizing the torture of thousands of individuals at places like Guantánamo and secret CIA ‘black sites’ around the world. As all states are obliged to prosecute such torturers, Bush has good reason to be very worried.”

CCR, ECCHR and FIDH were joined by more than 60 human rights organizations and prominent individuals who signed on to support the call for George W. Bush’s prosecution, including former UN Special Rapporteur on Torture, Theo van Boven, former UN Special Rapporteur on Independence of Judges and Lawyers, Leandro Despouy, and Nobel Peace Prize recipients Shirin Ebadi and Pérez Esquivel. A number of the human rights organizations which signed on are facing the on-going harms of the “counterterrorism” policies advanced under the Bush administration and then adopted or employed in their own countries.. The complaint included 2500 pages of supporting materials.

Manfred Nowak, former UN Special Rapporteur on Torture (2004-2010), was to submit an expert opinion on the complaints concluding that the conduct to which both plaintiffs were subjected constitutes torture, that Switzerland had an obligation to open a preliminary investigation, and that George W. Bush enjoys no immunity.

The Bush Torture Indictment, the official “letter of denunciation” summarizing the case and other materials are available here: http://ccrjustice.org/ourcases/current-cases/bush-torture-indictment.

The Center for Constitutional Rights, in addition to filing the first cases representing men detained at Guantánamo, has filed universal jurisdiction cases seeking accountability for torture by Bush administration officials in Germany, France and submitted expert opinions and other documentation to ongoing cases in Spain in collaboration with ECCHR. The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change. Visit www.ccrjustice.org. Follow @theCCR.

The European Center for Constitutional and Human Rights (ECCHR) is an independent, non-profit legal organization that enforces human rights by holding state and non-state actors to account for egregious abuses through innovative strategic litigation. For more information visit www.ecchr.eu

The International Federation of Human Rights (FIDH) is a non-governmental federation for 164 human rights organizations. FIDH’s core mandate is to promote respect for all the rights set out in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. Its priority areas include protecting human rights defenders and fighting impunity. For more information on FIDH, see www.fidh.org.

"No Appetite for Prosecution: In Memoir, Bush Admits He Authorized the Use of Torture, But No One Cares"

The following is reposted with permission by its author, Andy Worthington:

With just days to go before George W. Bush’s memoir, Decision Points, hits bookstores (on November 9), and with reports on the book’s contents doing the rounds after review copies were made available to the New York Times and Reuters, it will be interesting to see how many media outlets allow the former President the opportunity to try to salvage his reputation, how many are distracted by his spat with Kanye West or his claim that he thought about replacing Dick Cheney as Vice President in 2004, and how many decide that, on balance, it would be more honest to remind readers and viewers of the former President’s many crimes — including the illegal invasion of Iraq, and the authorization of the use of torture on “high-value detainees” seized in the “War on Terror.”

As I fall firmly into the latter camp, this article focuses on what little has so far emerged regarding the President’s views on Guantánamo, and, in particular, on his confession that he authorized the waterboarding of “high-value detainee” Khalid Sheikh Mohammed, which is rather more important than trading blows with a rapper about whether or not his response to the Katrina disaster was racist, as it is a crime under domestic and international law.

On Guantánamo

On Guantánamo, the only comments in the book that have so far emerged are insultingly flippant, which is disgraceful from the man who shredded the Geneva Conventions and authorized an unprecedented program of arbitrary detention, coercive interrogation and torture. In addition, Bush’s baleful legacy lives on in the cases of the 174 men still held, in the recent show trial of Omar Khadr, and in the complacency regarding the basis for detaining prisoners of the “War on Terror” — the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks — on which Barack Obama continues to rely, despite its formidable shortcomings.

As Michiko Kakutani explained in a review of the book for the New York Times:

He tries to play down the problems of Guantánamo Bay, writing that detainees were given “a personal copy of the Koran” and access to a library among whose popular offerings was “an Arabic translation of Harry Potter.”

On torture

On torture, however, Bush remains as casual about authorizing waterboarding (a form of controlled drowning used on at least three “high-value detainees” held in secret CIA prisons), as he did in June this year, when he told the Economic Club of Grand Rapids, Michigan, “Yeah, we waterboarded Khalid Sheikh Mohammed. I’d do it again to save lives.”

In his book, he writes that his response, when asked if he would approve the waterboarding of Khalid Sheikh Mohammed, was, “Damn right!” He added,  “Had I not authorized waterboarding on senior al-Qaeda leaders, I would have had to accept a greater risk that the country would be attacked.”

On Thursday, Reuters revealed more about the passages in the book in which Bush discusses waterboarding. This largely revisits the scenario as he described it in a press conference in September 2006, when Khalid Sheikh Mohammed, Abu Zubaydah and Abd al-Rahim al-Nashiri (the three men waterboarded by the CIA), plus 11 other “high-value detainees,” were transferred to Guantánamo from the secret CIA prisons whose existence, until that moment, had been strenuously denied by the administration.
On that occasion, he spoke at length about Abu Zubaydah, the supposed “high-value detainee” for whom the torture program was specifically developed, who, according to the “torture memos” released last year (written by lawyers in the Justice Department’s Office of Legal Counsel in 2002 and 2005) was waterboarded 83 times.

Revisiting his claims that, “When Abu Zubaydah stopped answering questions from the FBI, CIA Director George Tenet told Bush he thought the detainee had more information to offer” (as Reuters described it), Bush explains that “CIA and Justice Department lawyers conducted a careful legal review and came up with an ‘enhanced interrogation program,’ which he said complied with the US Constitution and all applicable laws, including those that ban torture.”

“No doubt the procedure was tough, but medical experts assured the CIA that it did no lasting harm,” Bush writes, adding that the methods were “highly effective,” and that Abu Zubaydah “revealed large amounts of information about al-Qaeda’s structure as well as the location of Ramzi bin al-Shibh, who he called the logistical planner of September 11 attacks” — an analysis that is unconvincing, as FBI interrogator Ali Soufan explained in an op-ed for the New York Times in April 2009. Soufan wrote:

Defenders of these techniques have claimed that they got Abu Zubaydah to give up information leading to the capture of Ramzi bin al-Shibh, a top aide to Khalid Sheikh Mohammed … This is false. The information that led to Mr. Shibh’s capture came primarily from a different terrorist operative who was interviewed using traditional methods.

Bizarrely, Bush also attempts to explain how Abu Zubaydah began cooperating, in a troubling passage in which he seems to be trying to make out that waterboarding was some sort of specific test for Muslims. He writes, “His understanding of Islam was that he had to resist interrogation only up to a certain point. Waterboarding was the technique that allowed him to reach that threshold, fulfill his religious duty, and then cooperate.” He adds that Abu Zubaydah then explained, “You must do this for all the brothers.”

Writing of Khalid Sheikh Mohammed, who was waterboarded 183 times, according to the OLC memos, Bush describes him as “difficult to break,” as Reuters put it, “but when he did, he gave us a lot.” As Reuters explained, “He disclosed plans to attack American targets with anthrax and ‘directed us to three people involved in the al-Qaeda biological weapons program,’ among other breakthroughs.”

Again, this is a claim that is not backed up with any evidence. As David Rose explained in an article for Vanity Fair in December 2008, “according to a former senior CIA official, who read all the interrogation reports on KSM, ‘90 percent of it was total f*cking bullsh*t.’ A former Pentagon analyst adds: ‘KSM produced no actionable intelligence. He was trying to tell us how stupid we were.’”

In conclusion, however, Bush claims that “the CIA interrogation program saved lives,” as Reuters described it, and states, “Had we captured more al-Qaeda operatives with significant intelligence value, I would have used the program for them as well.”

Why waterboarding is torture, and torture is a crime

The problem with Bush’s off-hand acknowledgment that he authorized the waterboarding of Khalid Sheikh Mohammed — and Abu Zubaydah and Abd al-Rahim al-Nashiri — is that waterboarding is torture, and torture is a crime.

As Isabel Macdonald of FAIR (Fairness and Accuracy in Reporting) explained in 2008 in an excellent overview of US reporting on waterboarding, “During the insurrection against the US occupation of the Philippines, the Washington Post described how the US military tortured suspected members of the Filipino resistance using “the form of torture known as the water cure.” That was in September 1902, but after the Second World War, when US military tribunals tried Japanese military officials for war crimes for torturing prisoners of war with techniques including waterboarding, the New York Times described the procedure as “forced drownings,” and it was referred to by the Washington Post as “water torture.”

Similarly, in March 1968:

“water torture” was mentioned in the headline of a Washington Post article about the Australian army’s admission that a soldier had administered the “water treatment” to a Vietnamese woman suspected of being a guerilla. Six months later, the Post published a front-page photographic exposé of US soldiers administering this same “water treatment” to a Vietnamese prisoner. A follow-up report in the Post [in 1970] referred to this practice, which resulted in charges against the commander of the US Army troops in South Vietnam, as “an ancient Oriental torture called ‘the water treatment.’”

Moreover, when it comes to torture in more general terms, the US anti-torture statute (Title 18, Part I, Chapter 113C of the US Code, introduced in 1994) describes torture as “an act … specifically intended to inflict severe physical or mental pain or suffering … upon another person within his custody or physical control,” and, as I explained in an article in July this year about Jay S. Bybee, the former OLC head (and now a judge in the Ninth Circuit Court of Appeals) who signed his name to the most notorious of the “torture memos,” written by John Yoo in the summer of 2002:

The US anti-torture statute [also] requires a fine, or 20 years’ imprisonment (or both) for “[w]hoever outside the United States commits or attempts to commit torture,” and a death sentence, or a prison sentence up to and including a life sentence, “if death results to any person from conduct prohibited by this subsection.”

In addition:

The UN Convention Against Torture [ratified by Ronald Reagan in 1987] stipulates (Article 2.2), “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Moreover, the Convention also stipulates (Article 4. 1) that signatories “shall ensure that all acts of torture are offences under its criminal law” and requires each State, when torture has been exposed, to “submit the case to its competent authorities for the purpose of prosecution” (Article 7.1).

These facts are generally ignored by mainstream media outlets, where those in charge have, since 2004, when waterboarding under the Bush administration was first introduced to the US public, coyly — and deceptively — chosen to refer to it as “a form of simulated drowning condemned by human rights activists as torture” (as Reuters did on Thursday), thereby helping to foster the culture of impunity which has allowed Bush to make this statement so publicly, and which, in February, allowed Dick Cheney to tell Jonathan Karl, on ABC News’ “This Week,” “I was a big supporter of waterboarding.”

Why the Obama administration bears responsibility for Bush’s impunity

In addition, the Obama administration is also responsible. Neither President Obama nor Attorney General Eric Holder has chosen to hold Bush administration officials and lawyers — up to and including the former President — accountable for their crimes, even though, as I explained in an article in March 2009:

In an interview with ABC News on January 11, 2009, President-Elect Obama responded to a recent CBS interview with Dick Cheney, in which the then-Vice President had sounded his usual alarms about the need for “extraordinary” policies to deal with terror suspects, by stating, “Vice President Cheney I think continues to defend what he calls extraordinary measures or procedures and from my view waterboarding is torture. I have said that under my administration we will not torture.”

Two days later, at his confirmation hearing, Eric Holder reinforced Obama’s opinion. Noting, as the New York Times described it, that waterboarding had been used to torment prisoners during the Inquisition, by the Japanese in World War II and in Cambodia under the Khmer Rouge, and adding, “We prosecuted our own soldiers for using it in Vietnam,” he stated unequivocally, “Waterboarding is torture,” and reiterated his opinion on March 2, 2009, in a speech to the Jewish Council of Public Affairs in Washington.

“Waterboarding is torture,” he said again, adding, “My Justice Department will not justify it, will not rationalize it and will not condone it.”

Instead, after a promising start on torture, which involved the President upholding the absolute ban on torture in an executive order issued on his second day in office, and the release of the OLC “torture memos” last April, in response to a court order, the Obama administration has retreated to a place where every attempt to seek accountability for the Bush administration’s torturers has been resolutely blocked.

In January this year, it was revealed that Holder had appointed — or had allowed — the veteran Justice Department fixer David Margolis to override the conclusions of a four-year internal investigation into the behavior of John Yoo and Jay Bybee, in which the author’s conclusions — that both men had been willfully guilty of “professional misconduct” — were watered down so that they were merely reprimanded for exercising “poor judgment.”

In addition, the administration’s stock response to attempts to investigate torture claims in court — as, for example, in the cases of five men subjected to “extraordinary rendition” and torture, who sought to sue Jeppesen Dataplan Inc., a Boeing subsidiary that acted as the CIA’s torture travel agent — has been to slam all the doors shut mercilessly, inappropriately invoking the little-known “state secrets” privilege to prevent anyone with a valid complaint from even getting anywhere near a court.

This is unlikely to change in the near future, of course, leaving George W. Bush able to boast openly about his crimes, apparently secure in the knowledge that he is untouchable, although as David Cole, a law professor at Georgetown University, and a long-standing critic of the Bush administration’s interrogation and detention policies, told the Washington Post on Thursday, “The fact that he did admit it suggests he believes he is politically immune from being held accountable … But politics can change.”

At present, it is difficult to see how, but those compiling evidence will have taken note that, in the very public forum of an internationally available memoir, George W. Bush has failed to rehabilitate his legacy and has, instead, openly confessed to war crimes.

Note: For a perceptive analysis of George W. Bush’s thoughts about his responsibility for the Iraq fiasco, see this post by Amy Davidson of the New Yorker.

"The United States of America Has Gone Mad"

On September 20, Amy Goodman's Democracy Now presented a video of John Le Carré reading from his 2003 essay on 9/11 and its disastrous political aftermath, including the invasion of Iraq.

From the Le Carré text (H/T Barry Eisler):

America has entered one of its periods of historical madness, but this is the worst I can remember: worse than McCarthyism, worse than the Bay of Pigs and in the long term potentially more disastrous than the Vietnam War.

The reaction to 9/11 is beyond anything Osama bin Laden could have hoped for in his nastiest dreams. As in McCarthy times, the freedoms that have made America the envy of the world are being systematically eroded. The combination of compliant US media and vested corporate interests is once more ensuring that a debate that should be ringing out in every town square is confined to the loftier columns of the East Coast press.

The imminent war was planned years before bin Laden struck, but it was he who made it possible. Without bin Laden, the Bush junta would still be trying to explain such tricky matters as how it came to be elected in the first place; Enron; its shameless favouring of the already-too-rich; its reckless disregard for the world’s poor, the ecology and a raft of unilaterally abrogated international treaties. They might also have to be telling us why they support Israel in its continuing disregard for UN resolutions.

But bin Laden conveniently swept all that under the carpet. The Bushies are riding high. Now 88 per cent of Americans want the war, we are told. The US defence budget has been raised by another $60 billion to around $360 billion. A splendid new generation of nuclear weapons is in the pipeline, so we can all breathe easy. Quite what war 88 per cent of Americans think they are supporting is a lot less clear. A war for how long, please? At what cost in American lives? At what cost to the American taxpayer’s pocket? At what cost—because most of those 88 per cent are thoroughly decent and humane people—in Iraqi lives?

How Bush and his junta succeeded in deflecting America’s anger from bin Laden to Saddam Hussein is one of the great public relations conjuring tricks of history. But they swung it. A recent poll tells us that one in two Americans now believe Saddam was responsible for the attack on the World Trade Centre. But the American public is not merely being misled. It is being browbeaten and kept in a state of ignorance and fear. The carefully orchestrated neurosis should carry Bush and his fellow conspirators nicely into the next election.

Those who are not with Mr Bush are against him. Worse, they are with the enemy. Which is odd, because I’m dead against Bush, but I would love to see Saddam’s downfall—just not on Bush’s terms and not by his methods. And not under the banner of such outrageous hypocrisy.

The religious cant that will send American troops into battle is perhaps the most sickening aspect of this surreal war-to-be. Bush has an arm-lock on God. And God has very particular political opinions. God appointed America to save the world in any way that suits America. God appointed Israel to be the nexus of America’s Middle Eastern policy, and anyone who wants to mess with that idea is a) anti-Semitic, b) anti-American, c) with the enemy, and d) a terrorist. [...]

What is at stake is not an imminent military or terrorist threat, but the economic imperative of US growth. What is at stake is America’s need to demonstrate its military power to all of us—to Europe and Russia and China, and poor mad little North Korea, as well as the Middle East; to show who rules America at home, and who is to be ruled by America abroad.

By the by, if you have not read Le Carré's last novel, A Most Wanted Man, you are missing one of the most amazing books of our time, akin to Eisler's Inside Out, two novels that expose the underlying realities of our time. Both books are thoroughly enjoyable, and yet also manage to condemn the use of torture for the modern barbarity that it is.

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.

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.

Released FBI Memo Documents Bush Ordering Torture

For the Soldier who fights for Truth, calls his enemy his brother. -- William Blake

Jason Leopold had an amazing find when perusing old released FBI documents the ACLU posted has posted on their site. There are about 100,000 such memos at the site, and who knows how much else is buried in that cache? The memo he reports on was first posted by the ACLU in December 2004, but the information in it lay buried until just this week.

Senior FBI agents stationed in Iraq in 2004 claimed in an e-mail that President George W. Bush signed an executive order approving the use of military dogs, sleep deprivation and other harsh tactics to intimidate Iraqi detainees.

The FBI e-mail -- dated May 22, 2004 -- followed disclosures about abuse of Iraqi detainees at Abu Ghraib prison and sought guidance on whether FBI agents in Iraq were obligated to report the U.S. military’s harsh interrogation of inmates when that treatment violated FBI standards but fit within the guidelines of a presidential executive order.

According to the e-mail, Bush’s executive order authorized interrogators to use military dogs, “stress positions,” sleep “management,” loud music and “sensory deprivation through the use of hoods, etc.” to extract information from detainees in Iraq, which was considered a violation of the Geneva Conventions. Bush has never before been directly linked to authorizing specific interrogation techniques at Guantanamo or Abu Ghraib. Bush has admitted, however, that he personally signed off on the waterboarding of three "high-value" prisoners.

Leopold notes that previously the Bush White House (in the person of Alberto Gonzales) stated in 2004, "The president has not directed the use of specific interrogation techniques." But the Senate Armed Services report on Department of Defense treatment of prisoners did note that at the very least it was President Bush himself whose February 7,2002 Executive Memorandum denying al-Qaeda and the Taliban Geneva protections, “opened the door” to torture and abuse of prisoners.

While Jason is writing a news article and can't call Bush and Gonzales liars, I can. The FBI memo is clear evidence of such an executive order. The FBI agents are writing for clarification of what constitutes reportable "abuse," since they have been ordered to report abuse to their superiors.

From the memo:

Our questions relate to the instruction in the EC to report abuse. The EC states that if "an FBI employee knows or suspects non-FBI personnel has abused or is abusing or mistreating a detainee, the FBI employee must report the incident.

This instruction begs the question of what constitutes "abuse." We assume this does not include lawful interrogation techniques authorized by Executive Order. We are aware that prior to a revision in policy last week, an Executive Order signed by President Bush authorized the following interrogation techniques among others sleep "management," use of MWDs (military working dogs), "stress positions" such as half squats, "environmental manipulation" such as the use of loud music, sensory deprivation through the use of hoods, etc. We assume the OGC instruction does not include the reporting of these authorized interrogation techniques, and that the use of these techniques does not constitute "abuse."

In a posting earlier today, Emptywheel noted that the FBI memo above was also quoted in the Department of Justice Inspector General Report on FBI involvement in detainee interrogations. The e-mail made a stir when first reported in December 2004, but the news dropped out of site after the White House issued a denial, and no EO surfaced.

Looking at the DoJ OIG report, I noticed that there was no denial of the claims made regarding coercive interrogation methods in a Bush presidential executive order by either OIG, or any number of officials who received this message. One would think that if the agent was incorrect, someone would have noted it. But in fact, the reference by the FBI agent to Bush's presidential EO is not denied by those who best would have known if it were true. I take this as convergent, though not definitive, evidence of the EO's existence.

Take for instance the final follow-up to the agent's request, by FBI General Counsel, Valerie E. Caproni:

Does it answer his question to say that conduct that is known to be authorized need not be reported?

In other words... go away, don't bother me! Just follow what constituted authority tells you to do.

Shame on the FBI agents who wrote this memo, and shame on the FBI higher-ups who hid behind terms like "lawful" or "authorized" for what are clearly abusive torture techniques. While noting they would still report physical beatings, sexual humiliation "or other conduct clearly constituting abuse," the effect of the Bush EO was to draw indefinable lines between torture and "harsh" abuse. Apparently these agents were unaware that even "cruel, inhumane, and degrading" treatment is outlawed by both the Geneva Convention and the Convention Against Torture, treaties to which the U.S. is signatory, and are law in the United States. Clearly, Bush was unaware or uncaring of such facts, having used his attorneys to cook up bogus legal opinions for the ongoing torture he had already ordered.

The consequences of Bush's torture program are incalculable, from the loss of international trust, to the decay of law, both at home and abroad. Of course, there is the damage to the tortured themselves. PHR wrote a great book, Broken Laws, Broken Lives, on how torture affects its victims. But here, I only want to point out how it affected just one of Bush's torture victims, Abu Zubaydah, who was waterboarded 83 times, and who was never the Al Qaeda mastermind the administration claimed he was. He was tortured so he could cough up a (false) link between Al Qaeda and Saddam Hussein, in order to provide a cause for war for the bellicose Bush administration.

How's Zubaydah doing today? Years now let out of his CIA prison, and held still at Guantanamo, even months after Obama determined the prison should close, let this description by Joseph Margulies in the Los Angeles Times today on Zubaydah's current condition serve as an epitaph for this article, if not for this nation's soul:

Partly as a result of injuries he suffered while he was fighting the communists in Afghanistan, partly as a result of how those injuries were exacerbated by the CIA and partly as a result of his extended isolation, Abu Zubaydah's mental grasp is slipping away.

Today, he suffers blinding headaches and has permanent brain damage. He has an excruciating sensitivity to sounds, hearing what others do not. The slightest noise drives him nearly insane. In the last two years alone, he has experienced about 200 seizures.

But physical pain is a passing thing. The enduring torment is the taunting reminder that darkness encroaches. Already, he cannot picture his mother's face or recall his father's name. Gradually, his past, like his future, eludes him.

If a monarch leader who orders torture cannot be prosecuted for this heinous crime, then what hope is there left for our society?