Short Shots in Anti-Torture Wars

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

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

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

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

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

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

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

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

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

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

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

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

You can go read the report at this link.

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

Conclusions

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

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

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

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

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

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

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

From DoJ to CIA: Wiretapping, Torture, Stonewalling & Obstruction of Justice

Two stories from today's news highlight the hubris of the U.S. executive branch as regards its assumed right to conduct unrestrained surveillance of its citizens, and engage in torture in violation of all laws.

Both Emptywheel at Firedoglake and Glenn Greenwald at Salon.com have done a stellar job tracking the Cheneyesque descent (H/T EW) of the Obama Justice Department when it comes to the question of executive privilege over classified material, especially when it comes to the courts. We already have witnessed the spectacle of the U.S. pressuring a British court on the suppression of documents in the Binyam Mohamed case.

As the Guardian reports it, "UK officials provided the CIA with information used in Mohamed's interrogation in Morocco, where he says he was tortured." For all the frenzied attempt to hide secrets, demands for an investigation grow in Britain.

Ministers yesterday came under increased pressure to set up an independent inquiry into the role of British security and intelligence agents in the US practice of rendering terror suspects to foreign prisons to be secretly and inhumanely interrogated.

Back in the U.S., it's a similar story. In the al-Haramain case, now in the Ninth Circuit Court of Appeals in San Francisco under Judge Vaughn Walker, an Islamic charity was targeted as "terrorist" and subjected to warrantless wiretapping... or was it that it was caught up in a data-mining sweep under illegal mass surveillance and a "terrorist" case built out of whole cloth? We can't be sure, and partly because the government won't release its documents, and al-Haramain's suit cannot go forward. It's even stranger when the primary document, a log of calls, was initially and mistakenly released to the plaintiffs, who returned it, and now can't get it back in order to pursue their case.

The Quest for Unlimited Executive Power Under Two Administrations

The position taken by the Department of Justice in the latest filing in the case is Bush/Cheney/Ashcroft-Gonzalez-kind outrageous, making preposterous assertions about executive power. Greenwald caught the situation perfectly:

The brief filed by Obama on Friday afternoon (.pdf) has to be read to believed. It is literally arguing that no court has the power to order that classified documents be used in a judicial proceeding; instead, it is the President -- and the President alone -- who possesses that decision-making power under Article II, and no court order is binding on the President to the extent it purports to direct that such information be made available for use in a judicial proceeding....

... after a few symbolic (and potentially important) decrees in the first week, which I praised at the time -- the Obama administration's approach to civil liberties, constitutional protections and the reining in of executive power abuses has been absolutely abysmal. None of this has anything to do with complaints that he hasn't yet done enough. It's the opposite: these are all affirmative, even extraordinary, actions undertaken by the Obama DOJ not merely to copy, but in the Al-Haramain case, virtually to surpass, the worst aspects of the Bush/Cheney/Addington use of extreme secrecy and assertions of unlimited executive power.

The twistings and turnings of the al-Haramain case are being reported and dissected in excruciatingly minute but important detail by Emptywheel and her cohort of experts over at FDL, and the reader is kindly directed there to hear the latest news, e.g., "On Friday, Obama's DOJ submitted four new declarations--presumably to correct the 'inaccurate' information provided in May 2006." What might that "inaccurate" information be? Head on over to EW at FDL and see what the cognoscenti think.

Did I say "Two"? I Meant "Ninety-Two".

In the other big news of the day, the ACLU revealed that the CIA now admits that it destroyed not two, as previously revealed, but 92 interrogation videotapes of "high-profile" prisoners in their custody. The revelation came as part of the ongoing Freedom of Information Act lawsuit by the ACLU to obtain documents from the CIA. The case is in the U.S. District Court in the Southern District of New York.

The admission of greater destruction of evidence came in a letter today from the U.S. attorneys to Judge Alvin Hellerstein. Noting that John Durham's criminal investigation into "the destruction of certain videotaped interrogations of detainees by the Central Intelligence Agency" is essentially over, and that the court will likely order an identifying list of destroyed records, with "summaries, transcripts, or memoranda" regarding these records "and any reconstruction of the records' contents," the government, agreeing to gather the appropriate materials, made the following comment:

In the meantime, the CIA can now identify the number of videotapes that were destroyed.... Ninety-two videotapes were destroyed. This information is included in the CIA Office of Inspector General's Special Review Report, a redacted version of which was previously produced to the Plaintiffs. The CIA will unredact this information from the report and produce it to the Plaintiffs.

Finally, we note that certain of the information ... may be classified or statutorily protected from disclosure, such as the names of CIA employees who have reviewed the tapes.

The government also promised to identify and witnesses who have seen the tapes or had custody of them prior to their destruction.

One wonders why it took that long to make the admission, and we can suppose that Durham already knew something of the amount of destroyed material, as part of his investigation, and that the CIA is doing its best to organize a limited hangout of some sort. I note what the government notes, i.e., that "certain of the information ... may be classified or statutorily protected from disclosure." It remains to be seen how far they will go in hiding more of their crimes.

The Crime of Destruction of Evidence in its Historical Context

I think there are two places in which we have the CIA on record, in-house, so to speak, re taping coercive interrogations (torture). In the KUBARK manual, audio taping of interrogations is recommended, as helping with planning and ongoing interrogations. They had lots of uses for such recordings, as this snippet from KUBARK (CIA counterintellgence interrogation manual, 1961) indicates:

A session with the witness may be recorded. If the witness denounces the interrogatee there is no problem. If he does not, the interrogator makes an effort to draw him out about a hostile agent recently convicted in court or otherwise known to the witness. During the next interrogation session with the source, a part of the taped denunciation can be played back to him if necessary.

Much more recently, in the minutes to the 10/02/02 "counter-resistance strategy" meeting with LTC Beaver, other DoD personnel, and Dave Becker of DIA and CIA general counsel John Fredman, we get the following exchange:

Becker: Videotapes are subject to too much scrutiny in court. We don't want the LEA people in aggressive sessions anyway. [By "LEA," they mean "law enforcement agency", and most particularly, the FBI. - Valtin]

LTC Beaver: LEA choice not to participate in these types of interrogations is more ethical and moral as opposed to legal.

Fredman: The videotaping of even totally legal techniques will look "ugly".

Becker: (Agreed)

As many have noted, there are thousands of hours of videotape, and not only of CIA torture. There were likely lots of tapes made at Guantanamo, too (and many likely also destroyed).

The destruction of interrogation evidence was a primary consideration of these criminals from very early on, as evidenced by this story, now little remembered from last June:

The Pentagon urged interrogators at Guantanamo Bay to destroy handwritten notes in case they were called to testify about potentially harsh treatment of detainees, a military defense lawyer said Sunday.

The lawyer for Toronto-born Omar Khadr, Lt. Cmdr. William Kuebler, said the instructions were included in an operations manual shown to him by prosecutors and suggest the U.S. deliberately thwarted evidence that could help terror suspects defend themselves at trial.

Put this all together with the supposed "disarray" of Guantanamo files, and we have a massive cover-up of crimes of a magnitude we have yet to fathom. One thing is for sure, the amount of destroyed tapes and material is far more than even this limited hangout will attest.

The destruction of evidence -- in this case amounting to obstruction of justice -- is nothing new for the CIA. In the early 1970s, the Director of Central Intelligence, William Colby, along with the head of the CIA's Office Technical Services destroyed most of the agency's MKULTRA files, as then-CIA chief Admiral Stanfield Turner admitted to a Senate panel in 1977. MKULTRA was a massive mind control, "behavioral modification" program. It ran, officially, from 1953-1964, and included even "terminal" experiments with the use of drugs on unwitting subjects. The results of its various studies were incorporated into the CIA model of coercive interrogation, codified in its KUBARK counter-intelligence interrogation manual in the early 1960s. This manual was only declassified in the 1990s. The National Security Archive describes some of the relevant sections in that manual. Warning: those who read this may suffer vertiginous deja vu, thinking of various headlines and exposes in the past seven years:

Under the subheading, "Threats and Fears," the CIA authors note that "the threat of coercion usually weakens or destroys resistance more effectively than coercion itself. The threat to inflict pain, for example, can trigger fears more damaging than the immediate sensation of pain." Under the subheading "Pain," the guidelines discuss the theories behind various thresholds of pain, and recommend that a subject's "resistance is likelier to be sapped by pain which he seems to inflict upon himself" such rather than by direct torture. The report suggests forcing the detainee to stand at attention for long periods of time. A section on sensory deprivations suggests imprisoning detainees in rooms without sensory stimuli of any kind, "in a cell which has no light," for example. "An environment still more subject to control, such as water-tank or iron lung, is even more effective," the KUBARK manual concludes.

Government Secrecy and the Struggle for a Free Society

Secrecy is almost always used to protect crimes from the public. It is shameful that an administration that prides itself on transparency -- indeed, Attorney General Holder released today the text of the missing Office of Legal Counsel memos from the post-9/11 era -- has, when it comes to torture and wiretapping, committed itself to such an abysmal recrudescence of Bush-era claims of executive supremacy.

It is not enough to ban waterboarding, as the government has now announced, when abusive techniques of interrogation, including sensory deprivation, isolation, sleep deprivation and manipulation of phobic fears is still part of the U.S. arsenal of interrogation techniques, as in the current Army Field Manual.

The CIA is almost an entirely different story. As a rogue element in government, recipient of untold billions of dollars and influence in far-reaching parts of government and society as a whole, it is ceased being, if it ever was, an agent of the democracy it claims to serve, and is instead one of the most dangerous, out-of-control elements inside government. One can only hope that the Durham investigation comes to the necessary conclusions, and that criminal prosecutions begin the restoration of law and order throughout the government.

What seems likely, though, is that the entrenched powers will fight a tooth-and-nail struggle against any restriction upon their freedom of action. Only a period of social struggle, such as occurred in the 1960s and 1970s, will provide the sufficient societal impetus and defense to fight back against these anti-democratic interests and the law-breakers that enable them. One way to begin this fight would be by supporting the call for prosecutions initiated by the National Lawyers Guild and a number of other prominent individuals and groups. If one cannot bring themselves to support that, then one must at a support the call for investigations coming from the Congressional offices of Sen. Patrick Leahy and Rep. John Conyers.

Wiretapping, Torture, Stonewalling by government, and Obstruction of Justice by the agencies and players involved -- Watergate was not easy, and this will not be so either. But I feel the tide turning, and we must complete what the Vietnam and Watergate eras failed to achieve: a social revolution in how power is conducted in this country, and an end to militarism and imperialist foreign policy as the raison d'etre for U.S. power.

On the U.S. Duty to Prosecute War Crimes (Part II)

(For part one of this article, please click here.)

The most common objection made to those who proclaim a duty to prosecute torture crimes under the UN Convention Against Torture (CAT) treaty concerns the treaty's non-self-executing status. A typical discussion occurred at The Volokh Conspiracy website a few weeks ago:

For 200 years, the supreme court has recognized a distinction between “self-executing” treaties and “non-self-executing” treaties. Self-executing treaties have the force of domestic law; non-self-executing treaties do not. The Convention Against Torture is a non-self-executing treaty, according to a Senate reservation. The president and the Senate chose to incorporate the treaty through domestic law, and Congress duly enacted the anti-torture statute. That statute incorporates, in modified form, the CAT’s ban on torture but does not incorporate section 7, and thus does not try to constrain prosecutorial discretion (and it is not clear that it could).

Section 7 of the Convention Against Torture thus is not judicially enforceable.

But, even in a decision by the Roberts court, it was found that non-self-executing treaties "still constitute international obligations." The quote comes from Medellin v. Texas, where the court ruled that the President could not enforce by himself, minus any implementing federal law, the provisions of the Vienna Convention/World Court. Let's look at one particularly relevant passage, however, in the majority opinion in the case, which proponents of weakening the CAT treaty's requirement to prosecute torture might want to ponder (emphasis added):

... under our established precedent, some treaties are self-executing and some are not, depending on the treaty. That the judgment of an international tribunal might not automatically become domestic law hardly means the underlying treaty is “useless.” See post, at 17; cf. post, at 11 (describing the British system in which treaties “virtually always requir[e] parliamentary legislation”). Such judgments would still constitute international obligations, the proper subject of political and diplomatic negotiations. See Head Money Cases, 112 U. S., at 598. (Majority Opinion, p. 24-25)

Yoo vs. the Supremacy Clause of the Constitution

The dissent in Medillin, by Justice Breyer, and joined by Justices Souter and Ginsburg, describes some of the underlying case law that supports the idea that the Supremacy Clause of the Constitution is in effect for all approved treaties:

The Clause means that the “courts” must regard “a treaty . . . as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision.” Foster v. Neilson, 2 Pet. 253, 314 (1829) (majority opinion of Marshall, C. J.)....

... by 1840, instances in which treaty provisions automatically became part of domestic law were common enough for one Justice to write that “it would be a bold proposition” to assert “that an act of Congress must be first passed” in order to give a treaty effect as “a supreme law of the land.” Lessee of Pollard’s Heirs v. Kibbe, 14 Pet. 353, 388 (1840) (Baldwin,J., concurring).

Since Foster and Pollard, this Court has frequently held or assumed that particular treaty provisions are self-executing, automatically binding the States without more.See Appendix A, infra (listing, as examples, 29 such cases,including 12 concluding that the treaty provision invalidates state or territorial law or policy as a consequence).

Not surprisingly, we see John Yoo quoted in Medellin as a legal expert on the issue of non-self-executing treaties. Yoo is an ideologue who helped write a series of memos that justified the use of interrogation techniques that amount to torture. In his essay, "Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding," Yoo argues:

This Article considers whether the Constitution, as originally understood, permits treaties to directly regulate the conduct of private parties without legislative implementation.... It concludes that the Framers believed that treaties could not exercise domestic legislative power without the consent of Congress, because of the Constitution’s creation of a national legislature that could independently execute treaty obligations. The Framers also anticipated that Congress’s control over treaty implementation through legislation would constitute an important check on the executive branch’s power in foreign affairs.

How strange that Yoo argues here for a check on the executive branch, he who has argued elsewhere for a powerful executive with massive wartime powers. But not strange when you realize that all these legal opinions are meant to cynically promote a particular political agenda in which U.S. foreign policy is free of international constraints. If in the case of treaty law this means eviscerating the executive's power to enforce the law of the land, so be it, all the better to eliminate the constraints of international law upon mighty America.

As to Yoo's contention that "Congress’s control over treaty implementation through legislation" was important issue for the Framers, Breyer references Ware v. Hylton (1796) (emphases in original):

The key fact relevant here is that Congress had not enacted a specific statute enforcing the treaty provision at issue. Hence the Court had to decide whether the provision was (to put the matter in present terms) “self-executing.” Justice Iredell, a member of North Carolina’s Ratifying Convention, addressed the matter specifically....

Justice Iredell pointed out that some Treaty provisions, those, for example, declaring the United States an independent Nation or acknowledging its right to navigate the Mississippi River, were “executed,” taking effect automatically upon ratification. 3 Dall., at 272. Other provisions were “executory,” in the sense that they were “to be carried into execution” by each signatory nation “in the manner which the Constitution of that nation prescribes.” Ibid. Before adoption of the U.S. Constitution, all such provisions would have taken effect as domestic law only if Congress on the American side, or Parliament on the British side, had written them into domestic law. Id., at 274–277.

But, Justice Iredell adds, after the Constitution’s adoption, while further parliamentary action remained necessary in Britain (where the “practice” of the need for an “act of parliament” in respect to “any thing of a legislative nature” had “been constantly observed,” id., at 275–276), further legislative action in respect to the treaty’s debt-collection provision was no longer necessary in the United States. Id., at 276–277. (Dissent, p. 6)

As one last point, let's look once more at the language of the Convention Against Torture, or rather the U.S. Reservations to CAT, Section II (5)(emphasis added):

5. That the United States understands that this Convention shall be implemented by the United States Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered by the Convention and otherwise by the state and local governments. Accordingly, in implementing Articles 10-14 and 16, the United States Government shall take measures appropriate to the Federal system to the end that the competent authorities of the constituent units of the United States of America may take appropriate measures for the fulfillment of the Convention.

So the U.S. is obligated to implement sections 4,5, and 7. One cannot take the fact that it mentioned specifically that it would implement Articles 10-14 and 16 as any limitation upon what articles it would implement. If for some reason these articles are not implemented yet, then they should be, and prosecutions can proceed.

One can argue that lacking legislative implementation, that the overwhelming intention of the treaty demands, as Justice Roberts wrote, that the U.S. fulfill its "international obligations". If the Democratic Party-led Congress wants to make matters even more clear, it can pass laws to specifically implement Sections 4, 5, and 7 of CAT.

Law, Politics, and the Fight Against Torture

At bottom, the legal questions are subsidiary to the political issues and intent. As Yoo's seeming apostasy regarding executive power makes clear, the argument about the various Federal powers comes down to supporting those policies that allow the U.S. to pursue untrammeled a free hand to intervene and act any way it wants anywhere in the world. Arguments about strict constructionism, or judicial activism, or the intent of the Framers is really an argument about how the U.S. should operate in the world today.

We reap today the failures of our society and its legal and governmental systems to address massive violations of international law for decades now. The greatest violator is the CIA (and sometimes the U.S. military), who countenanced and/or engaged in torture in Guatemala, Greece, Brazil, and South Vietnam (the Phoenix Program), and now, in Afghanistan, Iraq, and putative U.S. soil at the Guantanamo Naval Base and also undeniable U.S. territory, the U.S. Navy brig at Charleston (Jose Padilla). For decades, human rights and international law has been violated by the U.S. government, which has done its best to hide the fact via "plausible deniability", legalistic loopholes, and reliance on "state secrets" claims of national security (such as the Obama administration has now claimed in more than one instance).

A key instance of this point is the recent finding by the Justice Department’s Office of Professional Responsibility that the memos justifying torture written by Yoo and others were, as Jason Leopold reports in a current article, "tainted by political influence":

OPR investigators determined that Yoo blurred the lines between an attorney charged with providing independent legal advice to the White House and a policy advocate who was working to advance the administration’s goals, said the sources who spoke on condition of anonymity because the contents of the report are still classified.

Moreover, it seems, according to a Newsweek report, that Bush Attorney General Michael Mukasey tried to squelch the OPR report. These kinds of intrusions into how the law operates, or rather the institutions of the law, are not aberrations. They are the direct consequences of political programs and societal conflicts in action. They will never totally go away, and they call for political action -- legislative, judicial, and actions by the members of civil society, that is, by citizens -- to redress the wrongs implemented by reactionary sections of the society.

The duty to prosecute the war crimes of the past administration is not only about fulfilling international obligations, or rendering justice to victims, it is about deciding the very direction this country is headed. It is not hyperbole to say that the existence of whatever is left of democracy in this country is at stake. We must prosecute and punish Bush, Cheney, et al. for their war crimes. To fail yet again, as after the Vietnam War, is unthinkable. It would mean a further degeneration of U.S. democracy into something unrecognizable, into out and out tyranny.

Obama's DoJ: A Pattern of Obstruction in Torture, Wiretapping Cases

Obama's Department of Justice, seeking once again to invoke national security secrets as a means to throw out a lawsuit claiming damages, met opposition today in the person of Chief U.S. District Judge Judge Vaughn Walker.

The case is al Haramain Islamic Foundation et al. v. Bush et al. Per Electronic Frontier Foundation:

This case alleges targeting of the leaders of an Islamic charity and their lawyers by the admitted, targeted warrantless wiretapping by the NSA. It is based on a document that was accidentally disclosed to the plaintiffs by the government that the plaintiffs allege demonstrates that they were subjected to warrantless wiretapping (the exact facts are held under tight seal).

SF Gate picks up the story, describing a combative group of government attorneys warning Judge Walker that they would take their appeal to federal appeals court if he didn't order a stay in his January 5 order allowing the wiretapped plaintiffs to "to read a classified surveillance document that could confirm the assertion and avoid dismissal of their suit."

Jon Eisenberg, lawyer for Al-Haramain Islamic Foundation, which filed the suit, said, "They have drawn a line in the sand between the executive and the judiciary, saying, 'You do not control these documents, we do'"....

Numerous groups brought similar cases after Bush acknowledged that he had ordered the National Security Agency in late 2001 to intercept phone calls and e-mails between U.S. citizens and suspected foreign terrorists without congressional or court approval. But only Al-Haramain's case survives.

Obama attacked the surveillance program as a presidential candidate, promising "no more illegal wiretapping of American citizens" in an August 2007 speech.

To the government's likely chagrin, Judge Walker denied the government request for a stay, and even seemed to get a little testy with the government in his denial order (emphasis added):

First, the January 5 order is not a “final decision” and, therefore, not appealable pursuant to 28 USC § 1291. Second, the court is fully aware of its obligations with regard to classified information. The court’s January 5 order stated that it would prioritize two interests: “protecting classified evidence from disclosure and enabling plaintiffs to prosecute their action"....

The court seeks from the government implementation of the steps necessary to afford that “both parties have access to the material upon which the court makes a decision.” That is the procedure the January 5 order seeks to put in place. That order is, therefore, entirely interlocutory and an “immediate appeal will not materially advance ultimate termination of the litigation.” An appeal under 28 USC § 1292(b) and stay are not appropriate and are, therefore, DENIED.

Obama's promises are proving as empty, especially when it comes to exposing or prosecuting national security crimes. DoJ's actions in the al Haramain case must be seen in the context of the intervention by Secretary of State Hillary Clinton's State Department warnings to the British government not to reveal in court information on torture in the Binyam Mohamed case, nor from the decision to invoke "state secrets privilege" last Tuesday on the Jeppesen CIA rendition lawsuit.

[Note: Thanks to commenter not a cent for pointing out that the State Department warnings were pre-Obama. However, the UK judges in the Binyam Mohamed case stated that their decision to withhold secret documents was because "they had 'been informed by counsel for the Foreign Secretary that the position had not changed' with the inauguration of Barack Obama." Furthermore, the judges, outraged by the intervention, mentioned it eight times in their ruling. Foreign Minister Milibrand confirmed the British were following the U.S. lead, though some suspect they were also glad to keep secret British collaboration in the torture. See Andy Worthington's full article.]

Who cannot see a pattern here? ACLU Blog of Rights is reporting more obstruction by the Justice Department, this time in the FOIA lawsuit to get access to Bush's Office of Legal Counsel memos on "harsh interrogation methods":

On Wednesday, the Justice Department requested a 90-day stay so it could have more time to review three torture memos that we’ve specifically re-requested for release through our five-year-old Freedom of Information Act request. These three memos, written by then-head of the department’s Office of Legal Counsel (OLC), contain authorizations to subject detainees in CIA custody to harsh interrogation methods that amount to torture, and the legal opinions that justify them.

We sent the judge on the case a letter asking him to deny the request for a 90-day stay. We’ll be back before the judge on February 18 arguing against the stay.

This kind of behavior by the Obama administration beyond unacceptable. Obama and his Justice Department are using Bush's old play card, and his promises about "change" and "hope" are revealed as false. How quickly the national security establishment puts their stamp upon the new president!

This isn't naivete anymore, and the claptrap from Obama supporters that Obama is only playing for time, waiting for the right moment to spring his brand new "open" policy, has nothing but the hubris of Marc Ambinder to recommend it.

And what kind of national security secrets -- secrets the Justice Department alleges could cause "grave harm" to this country -- is the administration seeking to protect? Could it be anything like this new revelation coming from the pages of the Australian paper, The Age?

THREE human rights groups have obtained documents that confirm US Department of Defence involvement in the CIA's "ghost" detention program, and the existence of secret prisons at Bagram air base in Afghanistan and in Iraq.

The groups said these documents confirm the existence of secret prisons at Bagram and in Iraq; affirm the Defence Department's co-operation with the CIA's "ghost" detention program....

The groups said the documents also revealed that Defence had a policy not to register prisoners with the Red Cross for 14 days and sometimes for 30 days in the interests of collecting intelligence and that this policy was known to the Joint Chiefs of Staff.

"These newly released documents confirm our suspicion that the tentacles of the CIA's abusive program reached across agency lines," said Margaret Satterthwaite, director of New York University's International Human Rights Clinic. "In fact, it is increasingly obvious that Defence officials engaged in legal gymnastics to find ways to co-operate with the CIA's activities."

It is evident that the U.S. will do whatever it can to protect its own terror apparatus, one which kidnaps people without cause or legal right from foreign countries, or even from U.S. airports, and sends them to be tortured in CIA or foreign prisons, that bullies other countries, that falsifies or "cooks" intelligence information to justify "shock and awe" bombings and the invasion and occupation of other countries (Iraq, Afghanistan), etc.

Obama has shown by his actions thus far that he intends to be the commander-in-chief in ways that would seem familiar to the former denizens of 1600 Pennsylvania Boulevard. Congress, meanwhile, has shown a shadow of a backbone, threatening to pass legislation to make it harder to invoke state secrets, and making noises about a "Truth and Reconciliation" commission to investigate the former administration's crimes. But Beltway opinion is hardening around opposition to widespread calls for prosecutions for former Bush Administration officials.

But "Truth and Reconciliation" commissions are no substitute for justice. As William Fisher reports in an article earlier today:

Marjorie Cohn, president of the National Lawyers Guild, does not favor the “truth and reconciliation” approach. She told us, “As President Obama said, ‘No one is above the law.’ His attorney general should appoint a special prosecutor to investigate and prosecute Bush administration officials and lawyers who set the policy that led to the commission of war crimes. Truth and Reconciliation Commissions are used for nascent democracies in transition. By giving immunity to those who testify before them, it would ensure that those responsible for torture, abuse and illegal spying will never be brought to justice.”

A similar view was expressed by Peter M. Shane, a law professor at Ohio State University. He told us, “The immunities that might be granted in connection with a congressional or commission investigation of the Bush Administration could well compromise the prospects for criminal prosecution, as our experience with the Iran-Contra affair demonstrates. There is likewise reason to fear that justice cannot be completely served without recourse to prosecution.”

In the end, President Obama may not be able but to play out his role to the end: commander-in-chief of a corrupted military and CIA, bound to defend them, because he cannot trust in the people he said he would lead, and is beholden to those who he feels hold all the power around him. But he is wrong. Paraphrasing a slogan from forty years ago: the People are the Power. We the People.

H/T Patriot Daily News Daily, whose Overnight News Digest is a Daily Kos treasure

Reactions to Obama/Holder Injustice in Jeppesen Case

Ateqah Khaki, from the National Security Project, in an article posted at ACLU Blog of Rights, has described the significant press reaction following the Obama Administration's decision to claim "state secrets" in their argument to the Ninth Circuit Court of Appeals to drop plaintiffs' plea to let their suit against Boeing subsidiary Jeppesen Dataplans, Inc. go forward. ACLU attorneys argued the case for plaintiffs.

It is public record that Jeppesen knowingly participated in the CIA extraordinary rendition program, providing critical flight planning and logistical support services and aircraft crews. Jeppesen employees were even known to brag about their services to the CIA program. One managing director told Jane Mayer of The New Yorker:

"We do all of the extraordinary rendition flights—you know, the torture flights. Let’s face it, some of these flights end up that way."

The five men involved in the lawsuit, which was dismissed by a lower court in February 2008 thanks to the Bush administration's inappropriate assertion of "state secrets privilege," that release of information in court regarding the case would supposedly harm national security. The men had been forcibly disappeared by the Jeppesen-serviced CIA program and sent from countries like Sweden, Gambia, Pakistan, and Jordan and flown to secret detention and torture in CIA prisons, or by CIA proxies in Morocco and Egypt, or elsewhere.

One of these five, Binyam Mohamed, lies near death on hunger strike in Guantanamo prison, where U.S. authorities are pondering his release to return to Britain. One of Mohamed's attorney's, Lieutenant-Colonel Yvonne Bradley, an American military lawyer, has written an appeal for his release, published in today's UK Guardian. She describes some of what her client is currently suffering. This, not yesterday's Obama press conference, displays the real face of American power and how it is used:

Guards told Binyam that he was going home in December, and so he is on hunger strike (together with 50 or so other prisoners). This means that he is tube-fed while strapped to a chair, twice a day. Binyam has lost so much weight that he speaks of the pain he suffers from being strapped to the chair for hours each day – he speaks of feeling his bones against the chair. I am really worried that if Binyam does not come home soon, he will leave Guantánamo Bay in a coffin.

The Joint Task Force, which runs Guantánamo Bay, gives me no information about Binyam. When I called to enquire about his condition, they said first, that they would look into it and then that they would tell me nothing and that I should make a Freedom of Information request, which would have taken months to process. Therefore, whenever I want information about Binyam, I have to make the 5-hour trip to Guantánamo. Each time, he asks why he is still there.

It is worth bearing in mind that all charges against Binyam have been dropped and that Binyam's chief prosecutor resigned, citing the unfairness of the system.

Meanwhile, outrage continues to pour out regarding the injustice of the Obama administration's actions in court on Monday. The Los Angeles Times highlighted the incredulity of one judge regarding the government's argument to dismiss the Jeppesen case:

At one point during the hearing, Judge Michael Daly Hawkins, a Clinton appointee, told the government’s lawyer that he was not convincing.

"So any time the executive branch of the government says the fact is classified, it means it cannot be examined?" Hawkins asked Letter.

Letter, noting that national security was at stake, told the court it should "not play with fire" by permitting the suit to go forward.

"Nor should the government in asserting [secrecy] privilege," Hawkins shot back.

The New York Times editorialized today against the Obama Department of Justice actions:

The Obama administration failed — miserably — the first test of its commitment to ditching the extravagant legal claims used by the Bush administration to try to impose blanket secrecy on anti-terrorism policies and avoid accountability for serial abuses of the law....

Incredibly, the federal lawyer advanced the same expansive state-secrets argument that was pressed by Mr. Bush’s lawyers to get a trial court to dismiss the case without any evidence being presented. It was as if last month’s inauguration had never occurred....

The fact that some of the evidence might be legitimately excluded on national security grounds need not preclude the case from being tried, and allowing the judge to make that determination. More fundamentally, the Obama administration should not be invoking state secrets to cover up charges of rendition and torture.

The simple truth is this: the government has had years to make their cases against the Guantanamo detainees. If they cannot bring a case today, the detainees should be released. They could be given provisional residency status in the United States, pending final disposition. Those for whom their is acceptable evidence of crimes could be turned over to federal courts and charged and tried accordingly. Binyam Mohamed should be released immediately. Britain has already indicated they are ready to accept him.

The news last week that President Obama is still considering some kind of modified version the hated military commissions to try Guantanamo prisoners should be dropped. The U.S. courts can handle any appropriate prosecutions. Whether its bogus military commissions or "state secrets privilege" to torpedo accountability lawsuits, why doe the U.S. government want to keep these issues out of American courts? One good reason: their actions and programs would not withstand legal scrutiny.

FYI: The ACLU has posted a link so everyone can hear the oral arguments made last Monday in the Jeppesen case.

Obama Reneges on Justice for Torture Victims, Embraces Bush Secrecy Doctrine

Today, new Attorney General Eric Holder's Justice Department embraced Bush administration claims of "state secrets" in the ACLU lawsuit against Boeing subsidiary Jeppesen DataPlan for its role in Bush's extraordinary rendition program. Jeppesen's involvement in the "torture flights" of an undetermined number of terror suspect abductees, making a tidy profit for themselves in the meantime.

The New York Times reported on how the deal went down in San Francisco earlier today:

During the campaign, Mr. Obama harshly criticized the Bush administration’s treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantánamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.

“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.

“No, your honor,” Mr. Letter replied.

Judge Schroeder asked, “The change in administration has no bearing?”

Once more, he said, “No, Your Honor.” The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.

Even the judges seemed surprised by the government's seeming apostasy from its previous public proclaimations about openness.

It is worth remembering that one of the five rendition torture victims bringing suit against Jeppesen is Binyam Mohamed, who was "rendered" to Morocco in July 2002, where he suffered horrific torture, including cuts on his penis with a scalpel. Mr. Mohamed recently saw his attempt to get classified information about his torture released by British courts squashed by U.S. threats to stymie cooperation with British intelligence, while the Brits appeared queasy themselves over revelations regarding the collaboration of their own intelligence services with Mohamed's torture.

Justice Department spokesman Matt Miller shook off criticisms of the government's actions:

"The Justice Department will ensure the privilege is not invoked to hide from the American people information about their government's actions that they have a right to know. This administration will be transparent and open, consistent with our national security obligations," Miller said.

Meanwhile, ACLU executive director Anthony Romero had a few choice words for the administration:

"Eric Holder's Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government. This is not change. This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama's Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again."

Barack Obama has gotten quite a free ride from the "change" and "hope" crowd. When he quickly issued executive orders closing the CIA "black site" prisons and shutting down the CIA's "enhanced interrogation" torture, including waterboarding, much of the liberal and human rights world shouted, "Torture is over." Guantanamo would be closed (within a year), and the whole world could rest easy that the humane and totally vetted Army Field Manual would guide interrogators and protect vulnerable prisoners from the brig at the Naval Base at Charleston, South Carolina to the U.S. run prison at Baghram Air Base in Afghanistan.

Moreover, the Obama administration was proclaiming a new era of governmental transparency. The Freedom of Information Act was to be returned to its days of glory, and the new Attorney General assured his Senate questioners that old abusive use of "state secrets" privilege by the Executive Branch was a thing of the past, with such invocation only to be be used "in legally appropriate situations."

But what is the situation we have today? The conditions at Guantanamo worsen day by day, with 20 percent of the prison population on hunger strike. Binyam Mohamed himself lies near death. Obama has ordered a review of interrogation procedures which has some worried he will okay certain exceptions for the CIA. Meanwhile, the myth of a model humane Army Field Manual has been broken via exposure of abusive techniques inside its Appendix M, and elsewhere in its text.

Yesterday, I wrote this:

Whatever the intentions of Barack Obama, there is an entrenched culture now within the military and in the intelligence agencies of the United States, and also of some its allies, that relies on coercion and terror to enforce their rule and their power. The fight over this must be taken into the open, with demands to declassify all but the most current and sensitive documents that relate to interrogations and torture. If there is no imminent danger to the United States then there is no reason to hold any such documentation secret.

This is almost exactly the same point Ben Wizner of ACLU made to Glenn Greenwald, regarding the claims of state secrets in the Jeppesen case:

Wizner noted one last fact that is rather remarkable. The entire claim of "state secrets" in this case is based on two sworn Declarations from CIA Director Michael Hayden -- one public and one filed secretly with the court. In them, Hayden argues that courts cannot adjudicate this case because to do so would be to disclose and thus degrade key CIA programs of rendition and interrogation -- the very policies which Obama, in his first week in office, ordered shall no longer exist. How, then, could continuation of this case possibly jeopardize national security when the rendition and interrogation practices which gave rise to these lawsuits are the very ones that the U.S. Government, under the new administration, claims to have banned?

The question is, of course, rhetorical in nature, because I think only the blind do not know the answer to that.

It really doesn't matter who is president of the United States when it comes to torture policy. That has been in the hands of the CIA and certain folk in the Pentagon and Executive Branch for a long time now. Obama and Holder have demonstrated they have zero intention in challenging that institutional status quo, even if that means throwing entire civil suits brought by torture victims out of court, even when the information about the suit is almost totally part of the public record.

This is not about keeping secrets safe. It's about controlling what the public can hear and not hear, so the repressive apparatus of the state can be allowed to function without public scrutiny or public control.

What will the followers of Obama do now? Will they sell out the most wretched and cruelly tortured for the feel-good vibes of the moment? Or will they hold their candidate to account?

New Attorney General Addresses "Secret Law" & "State Secrecy"

The new Attorney General, confirmed just the other day, Eric Holder, gave some written answers to Senator Russ Feingold concerning the latter's questions regarding review of Bush administration policies concerning promulgation of "secret laws" and claims of "state privilege" in legal cases. I'm reproducing the exchange by Holder and Feingold, as it bears upon significant pending issues, not least the Jeppesen and al-Haramain cases.

Secret Law

2. I held a hearing last year on what I have been calling the problem of "secret law." Our legal system is based on the premise that the public has a right to know what the law is. But we now know that for the past seven years, bodies of executive and judicial law were kept secret from the public, and too often from Congress as well. The prime examples of this were binding opinions of the Office of Legal Counsel, and decisions of the Foreign Intelligence Surveillance Court interpreting the Foreign Intelligence Surveillance Act. Certainly there are times when these opinions and decisions may discuss sensitive operational information, and this type of properly classified information should not be made public. But that shouldn’t extend to an explanation of what the law is. Do you agree that, as a general matter, the Justice Department should be committed to more public access to OLC opinions and to FISA Court decisions? And will you work with me on legislation such as the OLC Reporting Act (S. 3501 in the 110th Congress) and Executive Order Integrity Act (S. 3405), to create some statutory protections against this problem?

I firmly believe that transparency is a key to good government. Openness allows the public to have faith that its government obeys the law. Public scrutiny also provides an important check against unpersuasive legal reasoning – reasoning that is biased toward a particular conclusion. Once the new Assistant Attorney General in charge of the Office of Legal Counsel is confirmed, I plan to instruct that official to review the OLC's policies relating to publication of its opinions with the goal of making its opinions available to the maximum extent consistent with sound practice and competing concerns.

In that regard, I support the principles behind the proposed OLC Reporting Act. I believe that the Department should notify Congress when it concludes that a provision of a statute is unconstitutional or when it interprets a statute in a manner that is manifestly at odds with its intent. As your question indicates, such notice is subject to the legitimate privilege and other secrecy concerns of the executive branch. I will commit to work with Congress to satisfy Congress's legitimate interest in notice and the executive branch's legitimate interests in efficiency and confidentiality.

State Secrets

3. I’m concerned that the outgoing administration may have used the "state secrets privilege" to avoid accountability for potentially unlawful activities, including warrantless wiretapping and rendition. Courts tend to be very deferential to these privilege claims, so there’s certainly room for abuse. Will you commit to reviewing all pending cases in which DOJ has invoked the state secrets privilege to make sure the privilege was properly invoked, and withdraw any claims of privilege that are not necessary to preserve national security?

I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.

4. One reason that the state secrets privilege is so vulnerable to abuse is that courts don’t always use the tools that are at their disposal to review privilege claims, such as in camera review of the privileged evidence. I cosponsored the State Secrets Protection Act (S. 2533 in the 110th Congress), with Sen. Kennedy and Sen. Specter, to require courts to engage in meaningful review of these claims. Would you support enactment of this bill?

I appreciate the Committee’s concern about potential abuses of the state secrets privilege and will work to ensure that assertions of the privilege are made only when legally and factually appropriate. I will consult with appropriate career personnel at the Department of Justice and perhaps in other agencies, before making a final judgment on whether to support this or other particular legislation.

[...]

Here's a link to the full exchange, posted by the Senate Judiciary Committee.

It seems we'll have to await Holder's review of the state secrets privilege claims to really understand how Obama's Justice Department will operate in this area. As ACLU noted the other day, the first real test of Holder's intentions will come February 9th, when oral arguments are scheduled at the Ninth Circuit in Mohamad v Jeppensen.

Most promising is Holder's pledge to release as many of the formerly secret legal memos produced by Bush's Office of Legal Counsel as possible.

As reported in FAS Secrecy News:

“Once the new Assistant Attorney General in charge of the Office of Legal Counsel is confirmed, I plan to instruct that official to review the OLC’s policies relating to publication of its opinions with the [objective] of making its opinions available to the maximum extent consistent with sound practice and competing concerns,” Mr. Holder wrote.

Last week, the ACLU called upon the Justice Department to release OLC opinions concerning Bush Administration policies on surveillance, detention, and interrogation.

“Releasing the memos would … signal to Americans, and to the world, that you intend to turn the page on an era in which the OLC served not as a source of objective legal advice but as a facilitator for the executive’s lawless conduct,” the ACLU wrote.

The news organization Pro Publica has prepared a database of pertinent OLC opinions from the Bush Administration. See “The Missing Memos” by Dan Nguyen and Christopher Weaver, January 28.

In many ways, these missing memos constitute the ostensibly legal framework upon which the Bush regime constructed their apparatus of governmental repression and torture. In particular, I'd love to read John Yoo and Robert Delahunty's OLC 10/23/2001 memo to Alberto Gonzales (then counsel to Bush), Fourth Amendment doesn't apply to military operations abroad or in U.S.:

This memo, titled Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States, concludes that the Fourth Amendment's protections against warrantless search and seizure don't apply to military operations, even when the operations take place on U.S. soil.

Kind of sends a chill up your spine, doesn't it, knowing the U.S. Constitution was suspended about eight years ago, and by secret fiat no less. Luckily for us, Obama, by executive order, recently rendered null and void all of these so-called legal OLC opinions that were issued regarding detention and interrogation after 9/11/01.

From the Executive Order, 1/22/2009 (bold emphases added):

Interpretations of Common Article 3 and the Army Field Manual. From this day forward, unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may, in conducting interrogations, act in reliance upon Army Field Manual 2-22.3, but may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation -- including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2-22.3, and its predecessor document, Army Field Manual 34-52 -- issued by the Department of Justice between September 11, 2001, and January 20, 2009.

While I have been adamant that standing "as is", the Army Field Manual allows for abusive treatment that can amount to torture, by limiting interpretations of its protocols to CA3, CAN, etc., and forbidding use of the Bush era legal "interpretations" of the law, a minimal amount of protection is provided. It is likely upon this thin reed that many liberals, especially in the administration, are resting their support of the AFM as the "single standard" for interrogations (and I mean people like Glenn Greenwald and Scott Horton).

Unfortunately, it is not enough, as recognized by the Center for Constitutional Rights:

Much like John Yoo's infamous "torture memos" at the Office of Legal Counsel attempted to provide a legal cover for the authorization of torture by high-ranking Bush administration officials, the addition of Appendix M attempts to provide the same cover, utilizing the Army Field Manual. President Obama's executive order repudiates Yoo's memos - but it is not sufficient to do so without also repudiating this appendix, drafted in light of those memos.

H/T to Emptywheel. Also, a posting at Docudharma/Daily Kos by Patriot Daily succinctly explains some of the more abstruse aspects of the state secrets issue, and proposes a solution, utilizing criteria criminal courts use when classified material is part of the case. It's worth reading, for those following this important issue.

Petition for Special Prosecutor for War Crimes Goes Online

Bloggers at Docudharma have teamed up with democrats.com to release a petition calling for Obama's incoming Justice Department to appoint a Special Prosecutor to investigate the Bush Administration and bring indictments against appropriate individuals for war crimes, such as torture.

Below is the complete text of their call:

The Citizens Petition: Special Prosecutor for Bush War Crimes

Please go to Democrats.com and sign the petition!

With the recent admissions by Vice President Cheney and the release of the Senate Armed Services Committee Report on detainee treatment, what we have known in the blogosphere for years has now....finally....made it into the mainstream. The Bush Administration planned, developed and carried out an organized torture program stretching from Gitmo to Iraq, Afghanistan and secret prisons around the world.

Despite their protestations and attempts to cover themselves with highly questionable legal opinions, this was and is a War Crime. Their politicization and corruption of the Department of Justice has stymied any investigation and left all efforts at accountability and justice to the new Obama Administrations DOJ, and specifically to AG Designate Holder.

Now, even the New York Times is....again, finally...calling for a Special Prosecutor to investigate these crimes.

However, as we also know well in the Blogosphere, this is far more than an issue of crime, punishment and justice as it should be. It is a political issue. A 'hot potato' political issue considering that any and all attempts at investigation and prosecution will undoubtedly (and erroneously) be described by the Republicans, the Right Wing press and pundits, and even some (complicit?) Democrats as a 'partisan witch hunt' and as 'criminalizing politics.' in other words, there are huge political costs at stake here. It would be much, much easier to 'move on' or 'not play the blame game' or point fingers to the past.'

The Obama Administration will face incredible pressure to sweep these War Crimes under the rug of history. We in the Blogosphere need to provide the counter-pressure. We do that by making our voices heard, and one way to do that is by each and everyone of us, the thousands if not millions of blog readers, adding our names to a petition. The petition will ultimately be submitted to AG Holder, as well as to Change.gov. However it can make a great impact on the 'public conversation' just by being everywhere in the Blogosphere as well.




To that end, Docudharma and Democrats.com have teamed up to create, host, and distribute the following petition. The petition calls for Attorney General Designate Holder to, immediately upon being confirmed, appoint a Special Prosecutor to investigate and prosecute any and all officials of the Bush Administration for Torture and War Crimes.

The petition:

Dear Attorney General Designate Holder,

We the undersigned citizens of the United States hereby formally petition you to appoint a Special Prosecutor to investigate and prosecute any and all government officials who have participated in War Crimes.

These crimes are being euphemistically referred to as "abusive interrogation techniques" by such respected figures as Senator John McCain. These are euphemisms for torture. Torture is a War Crime. Waterboarding is a War Crime. The CIA has admitted waterboarding detainees. Recently, Vice President Cheney has brazenly admitted authorizing the program that lead to waterboarding, other forms of torture too numerous to list, and ultimately, the deaths by homicide of detainees.

As Major General Antonio Taguba, the Army general who led the investigation into prisoner abuse at Iraq's Abu Ghraib prison has stated:

"After years of disclosures by government investigations, media accounts and reports from human rights organizations, there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account."

The Washington Post recently summarized the Senate Armed Services Committee Report on detainee treatment thusly:

A bipartisan panel of senators has concluded that former defense secretary Donald H. Rumsfeld and other top Bush administration officials bear direct responsibility for the harsh treatment of detainees at Guantanamo Bay, and that their decisions led to more serious abuses in Iraq and elsewhere.

We the undersigned citizens demand a full and thorough investigation immediately upon your taking office. This investigation should be pursued no matter where it may lead and no matter what the political implications may be. To this end, we remind you that you work not on behalf of or for the President or the Congress, but for the People of the United States of America and for Justice itself.

The United States is a representative democracy. The actions of our government officials are done in the name of its citizens. War Crimes have been committed in our name. Torture has been done in our name. The only way to clear our name of War Crimes is to repudiate them through the aggressive prosecution of each and every person involved to the full extent of the law through the appointment of a Special Prosecutor.

We are urging everyone in the Blogosphere and beyond to get involved in this project...not just to sign the petition, but also to write diaries and blog posts in support of the effort. And also to display the linked badge (created by Edger) in your posts or on your sites. The easy to embed code for posting the badge can be found here.

Please feel free to contact us at admin@docudharma.com for more information or any technical assistance you may need.

If you wish to post this essay, or just the petition, on any site or your own blog, please mail us at admin@docudharma.com and we will send you the entire essay, complete with HTML code, to post wherever you wish. Please feel free to edit, within the parameters of keeping the original spirit and intent. We enthusiastically give full permission for such use!

And of course......Please go to Democrats.com and sign the petition!

Rachel Maddow Presses Carl Levin on Torture Indictments

Watch the clip and see what you think Sen. Levin is saying. My interpretation is that he will send all the material he and the Senate Armed Services Committee have gathered on the Bush administration's organization of torture and send it to incoming President Obama's Justice Department for possible prosecutions. In addition, Sen. Levin calls for an independent commission, with subpoena power, to investigate the role of the CIA, which remains obscure and mostly unexamined.

Pressed by Maddow, Sen. Levin said that the country to see what is revealed in such an investigation and let the issue of possible indictments flow from that.

Kudos to Rachel Maddow, the newest addition to the cable punditry set, who gave prominent time to the discussion of the SASC's recently released report on detainee abuse, and on the subject of possible prosecutions arising from the material in that document. Levin, as possibly befits someone in his position, was cagey, but I can't see much wrong with what he proposes.

The main question is what kind of politics and justice will flow out of the "change" administration of Barack Obama? Reading the tea leaves will make you dizzy, veering now to the right, and then back to the center -- rarely to the left.

I look forward to the upcoming battles. At least the issue is out there. Let's push it for all it's worth!

H/T to Scott Horton, who you should be reading everyday anyway!

Cheat Sheet for Eric Holder: Torture and Jus Cogens

News item today:

(Reuters) - President-elect Barack Obama on Monday named former deputy attorney general Eric Holder as his choice to be Attorney General, the top U.S. law enforcement official.

The following can be bookmarked by Holder and his new team. No thanks necessary; just use it.

The video is of testimony by Marjorie Cohn of the National Lawyers Guild before the Subcommittee on the Constitution, Civil Rights and Civil Liberties of the House Judiciary Committee in May, 2008. An adapted transcript can be read in full here.

The United States has always prohibited the use of torture in our Constitution, laws executive statements and judicial decisions. We have ratified three treaties that all outlaw torture and cruel, inhuman or degrading treatment or punishment. When the United States ratifies a treaty, it becomes part of the Supreme Law of the Land under the Supremacy Clause of the Constitution....

n Hamdan v. Rumsfeld, the Supreme Court rejected the Bush administration's argument that Common Article 3 doesn't cover the prisoners at Guantánamo. Justice Kennedy wrote that violations of Common Article 3 are war crimes.

We have federal laws that criminalize torture.

The War Crimes Act punishes any grave breach of the Geneva Conventions, as well as any violation of Common Article 3. That includes torture, willfully causing great suffering or serious injury to body or health, and inhuman, humiliating or degrading treatment.

The Torture Statute provides for life in prison, or even the death penalty if the victim dies, for anyone who commits, attempts, or conspires to commit torture outside the United States.

The U.S. Army Field Manual's provisions governing intelligence interrogations prohibit the "use of force, mental torture, threats, insults, or exposure to unpleasant and inhumane treatment of any kind." Brainwashing, mental torture, or any other form of mental coercion, including the use of drugs, are also prohibited. Military personnel who mistreat prisoners can be prosecuted by court-martial under provisions of the Uniform Code of Military Justice. These include conspiracy, cruelty and maltreatment, murder, manslaughter, maiming, sodomy, and assault.

In Filartiga v. Peña-Irala, the Second Circuit declared the prohibition against torture is universal, obligatory, specific and definable. Since then, every U.S. circuit court has reaffirmed that torture violates universal and customary international law. In the Paquete Habana, the Supreme Court held that customary international law is part of U.S. law.

Under Article 53 of the Vienna Convention, a jus cogens norm is:

"a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character."
Link

In Al-Adsani v. United Kingdom, the European Court of Human Rights ruled unamimously that "the prohibition of torture has achieved the status of a peremptory norm in international law," that is, a jus cogens. (See Al-Adsani v. United Kingdom (No.2) (35763/97) European Court of Human Rights 21 November 2001 para 61. -- Note, the ruling was disappointing in other ways, as not allowing that States were subject under this jus cogens re torture to civil prosecution. The vote was narrow, and few would consider the matter settled.)

There have been other serious international decisions made concerning enforcement of the jus cogens crimes, such as the war crimes committed during the Yugoslavian conflict of the early 1990s. An ad hoc tribunal was established by the United Nations in 1993, and set up at The Hague. Theodor Meron was a U.S. judge elected to the court who served from 2001 to 2007. The U.S. cannot argue it is against such a tribunal. NATO has, by its own account, "provided the finance to set up the Tribunal... are amongst the majority financiers."

The International Criminal Tribunal for the Former Yugoslavia stated in Prosecutor v. Furundžija that there is a jus cogens for the prohibition against torture.[10] It also stated that every State is entitled "to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction."[11] Therefore, there is universal jurisdiction over torture. The rationale for this is that "the torturer has become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind."[12]

#10 Prosecutor v. Furundžija, International Criminal Tribunal for the Former Yugoslavia, 2002, 121 International Law Reports 213 (2002)
#11 Prosecutor v. Furundžija, International Criminal Tribunal for the Former Yugoslavia, 2002, 121 International Law Reports 213 (2002)
#12 Janis, M. and Noyes, J. International Law": Cases and Commentary (3rd ed.), Prosecutor v. Furundžija, Page 148 (2006)
Link

There is far more than probable cause to prosecute major figures of the Bush Administration, the Pentagon, and the CIA (and possibly DIA) for crimes against humanity, such as starting an aggressive war, and implementation of torture and abusive, inhumane treatment of prisoners. There is ample legal precedent to charge these individuals. If we do not do it, it should be undertaken by another willing nation.

Use the above information wisely, Mr. Holder. The nation awaits justice. The world awaits justice. In the age of the Internet, there is no hiding from responsibility. You know what you have to do. Political expediency will be no excuse to forego the necessary prosecutions.

Addentum: A tardy H/T to Uncle $cam for the link to Ms. Cohn's video testimony!

Poisoning the Asylum Well

Charlie Savage has an article in today's New York Times focusing on the politicization of the civil service process that selects the nation's immigration judges. The use of a political litmus test for the conservatism of Department of Justice applicants surfaced last summer in

... two scathing reports confirming that for several years administration officials illegally took political affiliation into account when hiring recent law school graduates, summer associates, some assistant prosecutors and immigration judges.

The culprits in this twisted, and illegal, vetting process were the assistant to the Attorney General, Kyle Sampson, and two former White House flunkies, Monica Goodling and Jan Williams. The story about the disparities in adjudication of asylum cases surfaced in a Stanford Law Review report last Spring (which I covered at the time.)

The latest revelations from the DoJ reviews amplify the conclusions re the bias and unfairness of the nation's immigration courts, as revealed in the Stanford study earlier this year.

According to Savage:

When vetting applicants... Ms. Goodling asked them questions about their political beliefs and researched their campaign contributions. She also conducted Internet searches of their names and words like “asylum,” “immigrant” and “border,” as well as partisan terms, like abortion, Iraq, gay and the names of political figures, to determine their views, the report said.

No evidence of a deliberate attempt to limit asylum claims has surfaced. But a statistical analysis of the results of the new Bush appointees asylum decisions found a significant discrepancy between the judgments of the "vetted" Bush Administration post-2004 appointees and the rest of the immigration judges or hearing examiners in the system. (The statistics were not gathered by DoJ, but by Transactional Records Access Clearinghouse at Syracuse University.)

Of the 31 politically selected judges, 16 compiled enough of a record to allow statistical analysis. Nine rejected applicants at a significantly higher rate than other local colleagues, while three were more lenient....

And when asylum denial rates of all judges across the nation were ranked in comparison to their local peers, 8 of the 16 scored above the 70th percentile — meaning they have been among the judges least likely to grant asylum.

Together, these 16 judges handled 5,031 cases and had a combined denial rate of 66.3 percent — 6.6 percentage points greater than their collective peers. This translates into an extra 157 asylum cases that resulted in denial. [Emphasis added]

What happens when an asylum case is rejected? Some are appealed, of which a small percentage are referred back to the original court for retrial. But a majority of individuals are deported back to their countries, which they originally left because of political or national persecution, often because they were imprisoned, tortured or threatened with death.

How many of these 157 extra denials resulted in torture or death of the individuals involved? We cannot know, but given the state of world governance and the prevalence of torture in many countries, the answer must be that the result of some this political vetting has been imprisonment, renewed torture, or hideous death.

The NYT article notes that unfairness is rife throughout the asylum-immigration system, and different standards and approval rates by judges throughout the system is a scandal still left unaddressed.

Asylum seekers are an easy target for right-wing politicians, and other opportunistic politicos, both Democratic and Republican, who seek to scapegoat these defenseless victims for the difficulties and pressures of the immigration problems in the U.S. as a whole. Americans don't realize how difficult it is to get asylum in the United States. Grant rates for male applicants are only 37.3%, and are often made only after voluminous perusal of mountains of evidence, usually involving hundreds of pages of evidence, submitted by the applicant (who is often severely stressed, if not depressed, or suffering from PTSD from torture or war-related conflict).

Congress must address reform of the asylum immigration system as a matter of basic human rights. Systemic effects of the unfair system are also burdening the federal judicial system as a whole, as appeals courts are flooded by applicants, denied a fair hearing, or victimized by judicial rulings that are unprofessional, biased, or inept. As one reporter described it:

Federal judges have been among the harshest critics of immigration judges. For example, last year the Seventh Circuit Court of Appeals delivered another in a series of stinging rebukes to the immigration courts and Board of Immigration Appeals (BIA). It ordered a review of a case of a Lebanese who was denied asylum despite fear that he would be persecuted if forced to return to his home country. The Appeals Court called for the DOJ to allocate more resources to ensure that immigrants receive fair review of their cases.

Responsible plans for basic reform are on the record. But only when the public at large begins to make itself heard on this issue will politicians finally discover the "will" to make change happen.

Last June, I wrote:

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.... 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.

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

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

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

First Government Report To Identify Rice As Receiving Interrogation Complaints

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

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

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

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

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

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

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

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

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

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

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

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

Addendum (5/21/08):

The fallout from the DOJ OIG report is spreading across the print press and blog world. You can almost sense the despair behind the written words, as the evidence of profound failure and monstrous subversion at the top, and impotent protest in the ranks, is infecting those commentators and reporters who survived the Bush years with a shred of ethical dignity. Consider Eric Lichtblau and Scott Shane's story in today's New York Times (bold emphases are mine):

The report says that the F.B.I. agents took their concerns to higher-ups, but that their concerns often fell on deaf ears: officials at senior levels at the F.B.I., the Justice Department, the Defense Department and the National Security Council were all made aware of the F.B.I. agents’ complaints, but little appears to have been done as a result.

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

Many of the abuses the report describes have previously been disclosed, but it was not known that F.B.I. agents had gone so far as to document accusations of abuse in a “war crimes file” at Guantánamo. The report does not say how many incidents were included in the file after it was started in 2002, but the “war crimes” label showed just how seriously F.B.I. agents took the accusations. Sometime in 2003, however, an F.B.I. official ordered the file closed because “investigating detainee allegations of abuse was not the F.B.I.’s mission,” the report said.

Nothing could be clearer: torture is the policy of the United States, and even the protests of their own agents in the field are unacceptable. I wonder how many -- or even if any -- FBI agents resigned in protest over this inhumanity and criminality by our own government. While the report lauds the integrity of the agents, I note that few if any chose to resign in protest, or publicly bring this information to the American people who they supposedly serve.

Glenn Greenwald turns his intellecutal guns upon the Congress and the American people themselves, noting:

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

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

A 2006 ruling by the Supreme Court in Hamdan that the President’s interrogation and detention policies violated the law led Congress, on a largely bipartisan basis, to enact The Military Commissions Act to legalize those policies.

Greenwald makes the vital point that the nation is imposing zero consequences for these violations of civilized norms. And he points out that key Democrats -- most crucially, now Speaker of the House Nancy Pelosi -- were aware of and apparently substantively approved this torture (something I pointed out in my essay "No Moral Compass" last December). But, unaccountably, Greenwald asks these same political cowards and collaborationists to clean up their act: "Those political officials who were in a position to put a stop to these abuses but failed to do so have the greatest responsibility to take meaningful action now."

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

America at a Crossroads

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

Greenwald concludes, with a sense of desperation that time is growing short:

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

This could — and should — still all be reversed. The Congress could aggressively investigate. Criminal prosecutions could be commenced. Our opinion-making elite could sound the alarm. New laws could be passed, reversing the prior endorsements and imposing new restrictions, along with the will to enforce those laws. We still have the ability to vindicate the rule of law and enforce our basic constitutional framework.

It is up to us as citizens to fight this evil, to begin to take action and say "no more". In the hallways of Congress, at state and local legislatures, at union meetings, at PTA meetings, in letters and emails and phone calls, a blizzard of protest... but we are not at the tipping point yet. I don't know when it will come, or even if it will come, but unless the American people stand up and fight for what is right, for themselves and for justice for all, then all may be lost.