The Torture Planners: "Why are we talking about this in the White House?"

In a very interesting follow-up to the unfolding story on the 2003 John Yoo memorandum that justified the use of torture, ABC news is reporting how the CIA came to the White House after the spring 2002 capture of al Qaeda operative Abu Zubaydah in Pakistan and asked for permission to use more "aggressive" interrogation techniques. Citing anonymous sources, ABC says that beginning with the Zubaydah case, "the most senior Bush administration officials discussed and approved specific details of how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency." These discussions evidently included the use of waterboarding, as the CIA has admitted using this torture technique on Zubaydah.

The "Principals" -- high-level Bush administration officials -- present included National Security Adviser Condolezza Rice, who chaired the meetings, "Vice President Cheney... Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft."

While Ashcroft is said to have signed off on the legality of the interrogations, he got squeamish about how it was being approved. Perhaps he was afraid of future legal and political consequences. Perhaps he remembered how the secrets of the Wannsee Conference were ultimately leaked. Per the ABC story (also reported over at Reuters):

Lawyers in the Justice Department had written a classified memo, which was extensively reviewed, that gave formal legal authority to government interrogators to use the "enhanced" questioning tactics on suspected terrorist prisoners. The August 2002 memo, signed by then head of the Office of Legal Counsel Jay Bybee, was referred to as the so-called "Golden Shield" for CIA agents, who worried they would be held liable if the harsh interrogations became public.....

But even after the "Golden Shield" was in place, briefings and meetings in the White House to discuss individual interrogations continued, sources said. Tenet, seeking to protect his agents, regularly sought confirmation from the NSC principals that specific interrogation plans were legal....

Highly placed sources said CIA directors Tenet and later Porter Goss along with agency lawyers briefed senior advisers, including Cheney, Rice, Rumsfeld and Powell, about detainees in CIA custody overseas....

Then-Attorney General Ashcroft was troubled by the discussions. He agreed with the general policy decision to allow aggressive tactics and had repeatedly advised that they were legal. But he argued that senior White House advisers should not be involved in the grim details of interrogations, sources said.

According to a top official, Ashcroft asked aloud after one meeting: "Why are we talking about this in the White House? History will not judge this kindly."

Despite Ashcroft's qualms -- mainly concerned with his political neck, not the safety of prisoners -- the Principals "approved interrogations... pushing the limits of international law and even the Justice Department's own legal approval." Condi Rice was said to be particularly forceful in giving the CIA power to torture (with Powell echoing Ashcroft's wimpy protests).

As the blogger buhdydharma wrote in an article today, the new revelations "clearly point to a high level, willful conspiracy to commit torture." Beyond the question of conspiracy, serious violations of a number of laws that prohibit torture and inhumane treatment have also been broken. Courtesy of Physicians for Human Rights and Human Rights First own examination of criminal laws governing laws on torture, let's review what Ashcroft, Rice, Rumsfeld, Cheney, Tenet, and possibly others, may find themselves vulnerable with aggressive prosecution (for footnotes, please refer to original via link):

The recent amendments to the War Crimes Act establish as war crimes “grave breaches” of Common Article 3 of the Geneva Conventions,10 including “torture” and “cruel or inhuman treatment.”11 “Torture” is characterized, in pertinent part, as “an act specifically intended to inflict severe physical or mental pain or suffering.”12 The separate war crime of “cruel or inhuman treatment,” is defined as “an act intended to inflict severe or serious physical or mental pain or suffering.”13

For the crime of torture under the WCA 14 and the Torture Act,15 severe mental pain or suffering is defined as “the prolonged mental harm caused by or resulting from” several specified actions, including “the intentional infliction or threatened infliction of severe physical pain or suffering” and “the administration or application, or threatened administration or application, of mindaltering substances or other procedures calculated to disrupt profoundly the senses or the personality.”16

For the WCA crime of “cruel or inhuman treatment,” serious mental pain or suffering is defined as “the serious and non-transitory mental harm (which need not be prolonged) caused by or resulting from” the same specified actions.17

The Detainee Treatment Act requires that “no person in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to torture or cruel, inhuman, or degrading treatment or punishment (CIDT).”18 The DTA defines CIDT as conduct prohibited by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution.

Since the "CIA’s reported “enhanced” interrogation techniques cause the types of physical and mental anguish that are criminalized under the WCA and other laws," it's clear that top administration officials have committed war crimes.

But what are the governmental officials, including elected members of the legislature, going to do about it? Certainly we can expect nothing from Mukasey's Justice Department, which even has all but signed off on waterboarding, and refuses to rule out evidence obtained by same. Rep. Conyers has asked John Woo to appear at a hearing of the House Judiciary Committee next month. Meanwhile, the story barely reaches the significance of front page coverage in the U.S. press.

This is not surprising, as the Executive Branch of the U.S. government has gotten away with the criminal execution of an illegal, pre-emptive war in Iraq, even when the evidence for this was placed in the public domain for all to see (going back at least to the publication of the Downing Street memos). Reportedly, the congressional offices of Speaker of the House Nancy Pelosi and other Democrats receive emails and faxes demanding action, up to and including the initiation of impeachment hearings in the House. All to no avail.

The poet William Blake wrote over two hundred years ago:

You never know what is enough unless you know what is more than enough.

We know that this is more than enough to put the criminal leadership of the Bush administration away in prison for many years. Therefore, enough!!

Give us our bill of indictment. Give us our impartial jury to examine the evidence. Give us justice. Failing this, I shudder to think what monstrous conclusion is being prepared for us in the bowels of history.

Bush Justice Department Cripples Immigration Courts (the Goodling Connection)

What do you get when you mix an explosive social issue with a cup of desperation and a fillip of Monica Goodling? The answer is a hell of a mess. And that's a polite way to describe the shambles that has become our immigration and asylum court system.

The New York Times has an important article on the subject in yesterday's paper: Big Disparities in Judging of Asylum Cases. The article dissects a new study being published in the Stanford Law Review, "Refugee Roulette: Disparities in Asylum Adjudication". The abstract for this study reads, in part:

This study analyzes databases of merits decisions from all four levels of the asylum adjudication process: 133,000 decisions by 884 asylum officers over a seven year period; 140,000 decisions of 225 immigration judges over a four-and-a-half year period; 126,000 decisions of the Board of Immigration Appeals over six years; and 4215 decisions of the U.S. Courts of Appeal during 2004 and 2005. The analysis reveals significant disparities in grant rates, even when different adjudicators in the same office each considered large numbers of applications from nationals of the same country....

The cross tabulations show that the chance of winning asylum was strongly affected by whether or not the applicant had legal representation, by the gender of the immigration judge, and by the immigration judge's work experience prior to appointment.

As the NYT article puts it, graphically:

In one of the starker examples cited, Colombians had an 88 percent chance of winning asylum from one judge in the Miami immigration court and a 5 percent chance from another judge in the same court.

But I think the statistic that will interest many readers is one the Times placed in the final sentence of the article.

Immigration judges are appointed by the attorney general, and 49 of 226 current judges were appointed during the tenure of Mr. Gonzales. [emphasis mine]

So, over 20% of the new immigration judges were appointed by Bush-Gonzales's Justice Department. (I don't know how many were appointed during the reign of John Ashcroft.) This is important for two reasons. One, procedural changes in asylum adjudication have given more weight to immigration judges' initial decisions because the Board of Immigration Appeals (BIA) has been eviscerated, with Ashcroft cutting the number of BIA board members from 23 to 11 back in 2002. The result was a “'sudden and lasting decline' in appeals that were favorable to asylum seekers".

But the shadow of the ongoing U.S. attorneys firing scandal hangs over the asylum-immigration issue as well.

The immigration courts have been in the spotlight after Justice Department officials said last week that the investigation of Monica M. Goodling, a former aide to Attorney General Alberto R. Gonzales, has been expanded to include her role in helping to appoint immigration judges.

Ms. Goodling testified last week that she had “crossed the line” in applying political considerations to candidates for nonpartisan legal jobs. (emphasis mine)

So we see that political cronyism and litmus tests for civil service employees -- like the immigration court justices -- are attempts to foist a one-party system upon the state bureaucracy. The result, as the Stanford Law Review study suggests, is an immigration court system that is riddled with injustice and unfairness.

This study was nothing new to those of us who have followed the vagaries of the immigration courts adjudication of asylum law. (And remember, asylum refugees are those fleeing their countries because of persecution, torture, rape, political oppression, ethnic cleansing and genocide, etc.)

Meanwhile, Seven Long Years Ago

In October 2000, the San Jose Mercury News published a study, which was a

...statistical analysis of the decisions of each Immigration Judge in the U.S. comparing their grant rates on requests for asylum. Using the Freedom of Information Act, they obtained a 1,134-page printout of a table from the Justice Department. DMR Associates of Springfield, Virginia analyzed the data.

The former INS attorney who prints the raw results (see link directly above) cautions against reading too much into the data, but over at VisaLaw, they report the conclusions of the SJ Mercury News analysis.

The study... reveals what many instinctively knew about the asylum process – that whether a person is granted asylum depends less on the merits of the person’s case and more on the judge before whom they present their case. The paper examined 176,465 cases that came before the 219 Immigration Judges between 1995 and 1999.

Some judges granted asylum in half of the cases they heard, while other judges granted asylum in less than two percent of cases. Some judges even routinely deny asylum to applicants from countries such as Bosnia and Somalia, where conditions mean that most applicants are granted asylum....

According to the Mercury News analysis, there was one factor that was key in determining how an Immigration Judge would rule according their legal background. Judges who worked in the private sector before being appointed granted asylum at a 50 percent higher rate than judges who had previously worked for the government. There are twice as many former government lawyers working as Immigration Judges as former private sector attorneys.

Another important factor was the gender of the judge. Ten of the 24 judges most likely to grant asylum were women, while the six judges least likely to grant asylum were men. Only three of the 24 judges least likely to grant asylum were women. The overwhelming majority of Immigration Judges – 72 percent – are men.

You'd think the New York Times would have provided the perspective on the new study from the Mercury News article from seven years ago. Of course, if they did, it would show that little has changed since the sunset months of the Clinton Administration, despite the best efforts of Bush, Ashcroft, and Gonzales/Goodling. The most obvious change has been the near-destruction of the appeals process.

Immigration Demagoguery

Immigration has been the issue most beloved of demagogues, appealing as it does to nativism, fears of unemployment and jingoistic campaigns for buying only domestic products ("put the foreign workers out of work!"). The Democratic Party, backed by the parochial and conservative trade union bureaucracy, has often bought into the protectionist scam, which pits U.S. workers against their brothers and sisters around the world. And the worst victims have been, of course, the most powerless -- the men, women, and children fleeing for their lives to the U.S., asking for political asylum. As the studies reported above show, the United States has long since ceased standing for justice and fairness.

We must demand that political litmus tests for immigration judges be stopped, and their proponents fined and jailed. Attorney General Gonzales should be impeached, for this and other crimes, e.g., legalizing torture. And the Immigration Appeals Board must be reconstituted and strengthened, and judges in the immigration courts (now run by the Department of Homeland Security) monitored and held accountable for discriminatory practices.