Leahy Calls One-Day, One-Witness Hearing on OPR Report: Who is Gary Grindler?

“Do you know who the Rosenbergs are?” [the agent] asked.

“I heard of them, yeah, I heard them mention,” Dr. Lee said.

“The Rosenbergs are the only people that never cooperated with the federal government in an espionage case,” she said. “You know what happened to them? They electrocuted them, Wen Ho.”

I couldn't find much online about Acting Deputy Attorney General Gary Grindler, the man tapped by Sen. Patrick Leahy to appear at the Senate Judiciary's hearing this Friday, February 26 (H/T Bob in AZ).

The one-day minimal hearing is supposed to show the Senate registering oversight on the OPR report and the Margolis intervention to clear John Yoo and Jay Bybee of "professional misconduct" in the torture memos affair.

Did I say that Mr. Grindler is also considered an excellent attorney, having won the The Best Lawyers in America award in the area of white collar criminal defense?

I also see that he played a minor role in the controversies around the Wen Ho Lee investigation and incarceration. At the time (circa 1999-2000), Mr. Grindler was Principal Associate Deputy Attorney General in Janet Reno's DoJ. Wen Ho Lee, a Taiwanese-American, had been a scientist at Los Alamos National Laboratory in New Mexico for approximately 20 years prior to his arrest.

The situation was this: the FBI and DoJ had bungled their investigation of possible spy Wen Ho Lee so badly that the supposed evidence in the case was hopelessly compromised. Nevertheless, after he was arrested, Lee was placed under onerous Special Administrative Measures (SAM). Ultimately he spent nine months in strict solitary confinement, until he agreed to a plea agreement on a felony count of improperly downloading Restricted Data. He was released from custody and served no subsequent jail time.

According to a Senate investigation in 2001:

Specifically, Dr. Lee’s confinement consisted of 24 hour supervision by a rotation of guards, permission to speak only with his attorneys and immediate family members (his wife, daughter and son) and in English only, non-contact visits from his immediate family members limited to one hour per week, no personal phone calls, and that he remain secured in his cell 24 hours a day./246/ Further, Dr. Lee was to remain in full restraints (leg and hand irons) anytime he was to be out of his cell being moved from one location to another./247/

As previously noted, Dr. Lee’s lawyers protested his conditions of confinement almost from the beginning.

An Internet site set up to support Dr. Lee elaborated on his situation:

A chain around his belly connecting to his handcuff prevents him from raising his hand above his head. We were told that two U.S. Marshals with machine guns accompanied him whenever he goes within the confine of the prison and a 'chase car' with armed Marshals follows Dr. Lee when he is moved from Santa Fe to Albuquerque and back.

The judge who initially denied Dr. Lee a pretrial release, nevertheless admonished the government “to explore ways to loosen the severe restrictions currently imposed upon Dr. Lee while preserving the security of sensitive information.” But the government wouldn't have any of that. As to the kind of interrogation Dr. Lee received, a small piece of the transcript is quoted at the lead of this article.

When Janet Reno told Gary Grindler that there were protests about Lee not getting enough exercise time, Grindler wrote a memo back to her:

A January 12, 2000 memorandum to the Attorney General from Principal Associate Deputy Attorney General Gary Grindler demonstrates that at least some of the concerns of Dr. Lee’s lawyers were taken to the highest reaches of the Justice Department. The memo notes that the Attorney General had “advised that some individuals have expressed concern about Dr. Lee’s access to exercise,” and explains that the order for Special Administrative Measures that she was being asked to sign “does not limit Dr. Lee’s access to exercise. According to the Santa Fe County Jail rules, Dr. Lee will be limited to one-hour per day of exercise, as are all administrative segregation prisoners.”

I can’t access the memo, but I wonder if Grindler mentioned that the exercise hour was conducted in shackles, and continued so until July 2000.

The Senate Judiciary Subcommittee on Department of Justice Oversight concluded:

While the government may have believed such harsh conditions were necessary, they have not made a convincing case. Judge Parker was not convinced by the government’s arguments, and granted Dr. Lee’s renewed motion for pretrial release on August 24, 2001. In his remarks at the plea hearing, Judge Parker expressed his sentiments, telling Dr. Lee that “since by the terms of the plea agreement that frees you today without conditions, it becomes clear that the Executive Branch now concedes, or should concede, that it was not necessary to confine you last December or at any time before your trial.”

…. After careful review, it becomes apparent that the government was right to reach a plea agreement with Dr. Lee, whose actions did constitute a serious threat to the national security, but was wrong to hold him virtually incommunicado in pretrial confinement for more than nine months.

Not too much to go on here, but Grindler’s association with abusive conditions of imprisonment should be explored, given the nature of his testimony and appearance in this context. But leaving aside Grindler and the issues associated with him, Leahy's hearing feels almost like a joke, a kick-in-the-teeth to those of use who are extremely concerned and disgusted about the way this country has handled the torture issue. Where is Yoo? Bybee? David Margolis or Eric Holder? These are the people you'd think any competent Congressional committee would call on the carpet. But all the power of Congress these days vis-a-vis the Executive Branch appears it could fit in a teacup.

As psychologist-activist-blogger Stephen Soldz put it in an article on the OPR report and Margolis memo:

A beautiful job, now completed by Obama-Holder Justice Department hack Margolis. Future lawless administrations now have a ready template to use to provide legal rationale for any abuses they desire.

As a postscript to this story, it should be noted that:

In June 2006, Lee received $1.6 million from the federal government and five media organizations as part of a settlement of a civil suit he had filed against them for leaking his name to the press before any formal charges had been filed against him. Federal judge James A. Parker eventually apologized to Lee for the government misconduct of which he had been the victim.

Torture Investigations? Leahy Bails, Powell Takes a Dive

Two events in the past two days have captured the inert, Alice-in-Wonderland nature of the U.S.'s struggle to deal with the revelations surrounding this government's use of torture. Today, it was reported that Senator Leahy had decided that lacking any GOP support for his "Truth Commission" on torture, his proposed investigation was dead in the water. But more on that in a moment.

One American television journalist who is not letting the politicians off the hook when it comes to accountability for torture is Rachael Maddow over at MSNBC. She interviewed Colin Powell yesterday regarding his knowledge of Bush Administration approval of torture. (H/T to colleague, Brad O.)

She noted that Powell was, along with Condoleeza Rice, John Ashcroft, Dick Cheney, Douglas Feith, Donald Rumsfeld and George Tenet, a participant in White House "Principals" meetings that discussed the interrogation methods of prisoners such as Abu Zubaydah and Khalid Sheik Mohammed. The approved techniques, which included use of stress positions, sleep deprivation, waterboarding and other abuses, are widely considered to be torture, and were labelled as such in a recently leaked report by the International Committee of the Red Cross. (The Principals story was first reported by ABC News.)

What follows is both the video and portions of the Maddow-Powell transcript, with interspersed commentary. Bold emphases are editorial additions.

Visit msnbc.com for Breaking News, World News, and News about the Economy

As those who watch the interview can see, Maddow is not afraid to go after Powell's role in the torture planning:

RACHEL: On the issue of intelligence—tainted evidence and those things—were you ever present at meetings at which the interrogation of prisoners, like Abu Zubaida, other prisoners in those early days, where the interrogation was directed? Where specific interrogation techniques were approved. It has been reported on a couple of different sources that there were Principals Meetings, which you would have typically been there, where interrogations were almost play-by-play discussed.

POWELL: They were not play-by-play discussed but there were conversations at a senior level as to what could be done with respect to interrogation. I cannot go further because I don't have knowledge of all the meetings that took place or what was discussed at each of those meetings and I think it's going to have to be the written record of those meetings that will determine whether anything improper took place.

During the interview, Powell keeps returning to the themes of his lack of knowledge, and almost a plea to look to "the written record of those meetings," a record that to date no one has seen. I'm presuming that Powell has seen such a record -- which could easily have been sanitized -- and whatever is there is not something he feels legally endangered by.

Maddow continues:

MADDOW: If there was a meeting, though, at which senior officials were saying, were discussing and giving the approval for sleep deprivation, stress positions, water boarding, were those officials committing crimes when they were giving that authorization?

POWELL: You’re asking me a legal question. I mean I don't know that any of these items would be considered criminal. And I will wait for whatever investigations that the government or the Congress intends to pursue with this.

Powell doesn't know now that waterboarding "would be considered criminal"? That's not what he thought, apparently, back in September 2006, when he wrote to Senator McCain opposing the Bush proposals that would later be incorporated into the Military Commissions, which would "“permit use of hypothermia, threats of violence to the detainee and his family, stress positions, ‘long-time standing,’ prolonged sleep deprivation, and possibly waterboarding.”

Powell said then:

Dear Senator McCain,

I just returned to town and learned about the debate taking place in Congress to redefine Common Article 3 of the Geneva Convention. I do not support such a step and believe it would be inconsistent with the McCain amendment on torture which I supported last year.

Of course, this was before the ABC revelations and the dawning possibility that Powell could stand where once Lt. Calley stood, on trial for war crimes.

The MSNBC interview continued:

MADDOW: ... Do you feel like you have enough information to know if people were waterboarded? Is that torture?

POWELL: I will let those who are making the legal determination of that make that judgment....

MADDOW: I guess have to ask that -— just a broader question about whether or not you have regrets, not about what the Bush administration did broadly in the years that you were Secretary of State, but the decisions that you participated in about interrogation, about torture, about the other things.

POWELL: We had no meetings on torture. It’s constantly said that the meetings—I had an issue with this -— we had meetings on what torture to administer. What I recall, the meetings I was in —- I was not in all of the meetings and I was not an author of many of the memos that have been written (and some have come out, some have not come out). The only meetings I recall were where we talked about what is it we can do with respect to trying to get information from individuals who were in our custody. And I will just have to wait until the full written record is available and has been examined.

MADDOW: ... There is also the policy implications that you've been so eloquent about, in terms of what the implications are of these policies for the U.S. abroad in a continuing way....

If specific interrogation techniques were being approved by people at the political level in the Cabinet, it doesn't -— the legal niceties of it almost become less important.

POWELL: I don't know where these things were being approved at a political level.

MADDOW: If there was a Principals Meeting at the White House to discuss interrogation techniques?

POWELL: It does not mean it was approved, anything was approved, at a meeting.

MADDOW: OK.

POWELL: It depends on did the meeting end up in a conclusion or was it just a briefing that then went to others to make a final decision on and to document. And so it is a legal issue and I think we have to be very careful and I have to be very careful because I don't want to be seen as implicating anybody or accusing anybody because I don't have the complete record on this. And that complete record I think in due course will come out.

While Gen. Powell was lawyering up with Rachael Maddow, Vermont journalist Charlotte Dennett broke the story over at Consortium News that Senator Patrick Leahy told a meeting of constituents that lacking GOP bipartisan support for his proposed investigation into Bush Administration torture that “it’s not going to happen.”

As Lisa Lockwood commented in a diary over Daily Kos:

This whole lack of interest in pursuing investigations, despite growing international pressure and almost daily news of further evidence that war crimes were committed is disquieting and perplexing. Jason Leopold wrote last week that the newly victorious Dem's appear willing to put "bi-partisanship over the pursuit of justice".

Sen. Leahy apparently felt enough heat to post an explanation of his position at his website:

In contrast to reports circulating on the Internet, Leahy said he is continuing to explore the proposal.

“I am not interested in a panel comprised of partisans intent on advancing partisan conclusions,” Leahy said. “I regret that Senate Republicans have approached this matter to date as partisans. That was not my intent or focus. Indeed, it will take bipartisan support in order to move this forward. I continue to talk about this prospect with others in Congress, and with outside groups and experts. I continue to call on Republicans to recognize that this is not about partisan politics. It is about being honest with ourselves as a country. We need to move forward together.”

Furthermore, Senator Leahy took the floor of the Senate to make an appeal for "a Commission of Inquiry", citing "disturbing new facts that underscore the need for such a nonpartisan review." He then cited a number of recent revelations familiar to the readers of progressive blogs, including the ICRC report on CIA torture, the OLC memo revelations, the waterboarding of Abu Zubaydah, etc.

He added, as he has whenever he has formally presented his proposal:

One of my concerns in proposing the Commission of Inquiry is that we not scapegoat or punish those of lesser rank. Such a commission’s objective would be to find the truth – to provide accountability for the past. People would be invited to come forward and share their knowledge and experiences, not for purposes of constructing criminal indictments, but to assemble the facts, to know what happened and to make sure mistakes are not repeated.

With all due respect to Senator Leahy, his pleas do not appease anyone, not the GOP, nor those who want to see accountability for war crimes. His statement, moreover, appears to actually confirm Dennett's report.

Why does Sen. Leahy repeat right-wing assertions that an investigation without GOP support would be "intent on advancing partisan conclusions"... unless being against torture is now a "partisan" issue?

Secondly, note that Leahy has not said he's going forward with the investigation. He's going to continue to talk, perhaps, to Republicans, but without "bipartisan support" no investigation will move forward.

Conclusion? There will be either no investigation, or whatever investigation there is will only be on GOP terms, i.e., any investigation would now be held hostage, as regards its agenda, to the GOP presence.

It also seems possible the proposed Leahy hearings were only a show to begin with, and that with key Democrats also implicated in knowledge of torture, a real investigation of any sort was off the table.

Things are coming to a head on the torture issue. No matter how hard the politicians try, the crimes and the cry for accountability for them will not go away. This is especially true as the Obama administration has taken only partial steps towards dismantling the torture apparatus assembled by the Bush team.

Some may be shocked or feel letdown by Powell and Leahy's performance thus far. But these establishment figures are so compromised by their adherence to the government that they fear what might happen if the full truth were to emerge. And whether that happens or not depends on you, dear reader. Only a large reaction of social revulsion and the demand for prosecutions will bring justice and real change in policy.

The only question that remains is: are we, as a society, up to the task?

Two Important Notices

National Lawyers Guild Files Complaint With California State Bar Against William Haynes

(H/T David Swanson at AfterDowningStreet.org)

Former Department of Defense General Counsel Recommended Torture, Harsh Interrogation Techniques

San Francisco - The National Lawyers Guild San Francisco Bay Area Chapter (NLGSF) is filing a complaint with the California State Bar today against former Department of Defense General Counsel William Haynes. The complaint against Haynes, who now works for the Chevron Corporation in San Ramon, states that he "breached his duty as a lawyer and advocated for harsh tactics amounting to torture in violation of U.S. and international law .... advocacy that directly lead to detainee abuses at the Guantanamo Bay and Abu Grahib facilities."

A copy of the complaint is available upon request or can be accessed at:

http://www.nlgsf.org/committees/againsttorture.php.

The complaint will be mailed to the State Bar Los Angeles office and hand-delivered to the State Bar Office in San Francisco, where there will be a 12:30 press conference.

Press Conference
State Bar Office
180 Howard Street
Monday, March 16, 12:30 PM

"We believe Mr. Haynes must be held accountable, just as any other lawyer would be," said Carlos Villarreal, Executive Director of the NLGSF. "But we are filing this complaint today not out of motivation to harm Mr. Haynes, but to ensure that torture is again relegated to the status it had before the Bush Administration's tenure, and that the harmful, sometimes deadly, and completely ineffective policy of torture is truly deterred."

While working for the Department of Defense, Haynes ignored the serious concerns coming from all branches of the military and recommended in a memo to Defense Secretary Donald Rumsfeld, approval of certain harsh interrogation techniques, including removal of clothing, stress positions, and the use of dogs against detainees. The Senate Armed Services Committee has described the memo as “grossly deficient.”

"Powerful leaders can and do engage in illegal acts and inhumane treatment of others. These leaders often rely on lawyers and the legal system to give the appearance of legitimacy to an illegal agenda. Sadly, there always seems to be lawyers willing to do the bidding of powerful rulers," said Sharon Adams, attorney member of the NLGSF. "The State Bar must uphold ethics and the rule of law, and repudiate Mr. Haynes’ actions."

Haynes worked with other lawyers in the Bush administration who have yet to face consequences for their advocacy of torture and other wrongdoing, including former Justice Department lawyer and current UC Berkeley School of Law Professor John Yoo. "We are in a position where even members of the new administration are suggesting criminal charges against Bush officials for torture and other crimes are off the table since many of these officials relied on legal advice," said Jim Lafferty, Executive Director of the National Lawyers Guild Office in Los Angeles. "If the lawyers are not held accountable for their misdeeds, then essentially high crimes with serious consequences have been committed but nobody is to blame."

As a Registered in House Counsel for the Chevron Corporation, Haynes was not required to take the California Bar Exam but is also not able to appear in court or practice law beyond giving advice to Chevron. He is, however, required to "abide by all of the laws and rules that govern members of the State Bar of California," according to California Rules of Court.

***********************

Received via e-mail from Center for Constitutional Rights. For more on CCR campaigns against torture and indefinite detention and for prosecutions of Bush officials for war crimes, visit their website. Get involved! Contribute!

As the atrocities of the Bush administration continue to be exposed, it is critical now more than ever to keep up the pressure and demand accountability from the high-ranking officials responsible for torture and war crimes.

The Inter-American Commission on Human Rights (IACHR), a pan-American body dedicated to the promotion and protection of human rights, is conducting a hearing at the request of CCR and the World Organization for Human Rights USA. On Friday, March 20, 2009 CCR President Michael Ratner will argue that U.S. officials must be held accountable for human rights violations, on live webcast on Friday, March 20, from 3:15 PM to 4:15 PM at http://www.oas.org/OASpage/Live, the website of the Organization of American States. It will be archived thereafter at the IACHR website, http://www.iachr.org.

CCR and HRUSA will argue that the Commission should:

• Issue official recommendations to the United States to engage in criminal investigations and prosecutions for torture, cruel, inhuman and degrading treatment;
• Reform laws that prevent the victims of U.S. policies from learning the truth about these abuses; and
• Make reparations to victims of human rights abuses committed by the U.S. government.

By the way, kudos to Michael Ratner of CCR, who spoke out against the proposed Senate hearings or "Truth Commission" proposed by Senator Leahy as a "whitewash."

Speaking to Raw Story, Michael Ratner, president of the Center for Constitutional Rights and a human rights attorney, says he is opposing Senate Judiciary chairman Patrick Leahy’s proposed 'Truth Commission' because it doesn’t go far enough.

"We’re talking about a whitewash with Leahy. Are we some Latin American country where we don’t have a democracy robust enough to try people?" Ratner said. “[Leahy’s] essentially diffusing the issue so there’s not as much pressure on prosecution. It’s not really going to go far. [The commission is] going to divert us for a few years and we’re never going to see something come out of it.”

Ratner said he and the Center for Constitutional Rights want to see criminal prosecutions of officials at the highest level of the Bush administration, the so-called “principals” who were the architects of controversial polices and signed off on them.

“Cheney has openly said that he approved the water boarding memo and that he would do it again,” Ratner said, adding, “My view is you absolutely have to have prosecutions to have deterrents [for future executive power abuses].”

My own take on Leahy's whitewash hearings, including a detailed breakdown of the witnesses the House Judiciary Committee called on March 5 to examine the proposal, appears in my article, "Birth of a Whitewash: Who Testified at Leahy Commission Torture Hearings?" (which was picked up by both The Public Record and the Chicago Sun Times).

Birth of a Whitewash: Who Testified at Leahy Commission Torture Hearings?

There has been plenty of controversy on the issue of conducting a Congressional or independent investigation into the interrogations policy and torture activities of the Bush administration over the last seven or eight years.

One of the primary worries by those who oppose a "truth and reconciliation"-style investigation is that it would preempt possible prosecutions, or at worst, be a cover-up of some of the worst crimes involved. Those who favor such an investigation believe that is only with a broad investigation will all the information really be unearthed.

The hearing today by the Senate Judiciary Committee -- "Getting to the Truth Through a Nonpartisan Commission of Inquiry" -- chaired by Senator Patrick Leahy (D-VT), was called to explore options for investigating past torture and counter-terrorism policy. The committee called six witnesses, some for, some against such an investigation. But a close look at the backgrounds and affiliations of even most of the pro-investigation witnesses should give us deep pause, and ask what kind of commission are we being set up for?

The witnesses included some out and out conservatives, or individuals dubious about the investigatory process -- men like David B. Rivkin, Jr., who opposes the investigation, and supported most of Bush's program, such as suspension of Geneva rights for "enemy combatants", and Jeremy Rabkin, who wrote, After Guantanamo: The War Over the Geneva Convention" in a collection of essays edited by cold warrior ex-CIA chief R. James Woolsey.

The other four witnesses were a mixed bag. They appeared to believe the Bush administration had gone way overboard after 9/11, at least when it came to treatment of prisoners. Three of the four witnesses have background that make them dubious reporters, and argue, as well, that they may have another agenda they wish to advance. These three -- Thomas Pickering, Vice Admiral Lee Gunn (Ret.), and John J. Farmer, Jr. -- all have either gone on the record with far-right views on the "war on terror", or have associations with actions by the government that themselves are associated with torture.

Let me provide what evidence I have collected in a relatively short period of time. It is not definitive, but I think enough to give serious pause to consider just how this most important discussion is proceeding at the congressional level.

Our Man in El Salvador: Death Squads, Rigged Elections, and Iran/Contra

Thomas Pickering has a history as a reliable agent for murderous U.S. foreign policy. This is from an op-ed at the Council of Foreign Relations (all emphases in this posting are added, unless otherwise noted):

Thomas Pickering, who was ambassador to El Salvador from 1983 to 1985, says that, while it was U.S. policy to publicly denounce the death squads, their “kind of tactics [were] tacitly supported by the U.S. government, even though [they] were freelance.” Other analysts are more blunt. “We did back the guys who went after the bad guys,” says Lawrence Korb, assistant secretary of defense from 1981 to 1985. “And [we] defined ‘bad guys’ pretty broadly.” According to William Leo Grande, a professor at American University and the author of a major study of the conflict, Washington knew that the intelligence it passed to the Salvadoran government eventually made its way to the paramilitaries. “We did support the guys who organized them,” he says, “so it’s a little precious to deny that we supported the death squads themselves.”

Pickering also got caught up in a dispute between mob political cliques in the U.S. and El Salvador, when Sen. Jesse Helms, who was aligned with his protege the torturer Roberto D’Aubuisson and his ARENA party, spilled the means on a CIA election manipulation to put their man, Jose Napoleon Duarte in as president, during a raging civil war with tens of thousands targeted by death squads and torturers.

As a result, enraged D’Aubuisson supporters plotted to kill U.S. Ambassador Thomas Pickering. Mr. Helms sent a letter to these partisans that said:

Ambassador Pickering has been the leader of the death squads against democracy. Mr. Pickering has used his diplomatic capacity to strangle liberty during the night.

Senator Helms was censured by the Senate for conducting his own foreign policy. Luckily, Ambassador Pickering escaped murder.

Thomas Pickering started his career working in the intelligence field. “Between 1959 and 1961, Ambassador Pickering served in the Bureau of Intelligence and Research of the State Department…” (State Dept bio)

Note that in a 1988 New York Times article, Pickering was fingered as one of the Iran-Contra enablers, passing along appeals for weapons from the Contras to Oliver North, and never reporting it, despite the fact such assistance was supposedly illegal at the time. Pickering was then ambassador to El Salvador, and up to his ears in death squads, CIA electoral manipulations, and a counter-insurgency bombing campaign that killed thousands and made refugees of many thousands more.

Pickering and his ilk are not men to be trusted. They are brought in here for one reason only: they are “fixers”, like the guys the mob brings in to clean up the mess after the hit’s been done. Nell, whose initial comment at Emptywheel's live blogging diary at Firedoglake spurred this entry of mine, put it this way:

Leahy has lined up respected establishment operatives (aka reliable tools of imperial foreign policy) to push for a commission of inquiry. I actually agree with most of Pickering’s testimony, especially about leaving the door open for prosecution and therefore being very sparing with grants of limited immunity.

But Pickering’s presence, particularly as he appeared today to represent the outermost limit of opinion among this crop of witnesses, signals to me as strongly as anything can that this commission will play the same role as “plucky reformer” Napoleon Duarte’s “fragile democracy” played in El Salvador during Amb. Pickering’s stint there: a crowd-pleasing facade created to hide the continuation of the same poisonous policy.

More of the Usual Suspects: Gunn

Vice Admiral (ret.) Lee Gunn is presented to the committee as President of the American Security Project. He also is president of their Institute of Public Research at CNA Corporation, a federally funded research and development center in Washington, D.C. [CNA stands for Center for Naval Analyses, as I discovered elsewhere; it doesn't say so at their website.] IPR-CNA works on nice and reform-like programs, though a large part of IPR's work is consultation on "homeland security operations and strategic policy development." That would include papers done under Gunn's division, such as "SMART Policing":

As part of the recent paradigm shift towards counter-terrorism, police are adopting intelligence led policing strategies (sometimes referred to as “information-led policing”) which have sought to use information analysis and intelligence more strategically to guide leadership decision making and law enforcement operations. And more recently, police departments in the higher risk urban areas have also begun to make more extensive use of electronic surveillance....

Many jurisdictions are already employing some SMART policing approaches, such as the use of new technologies for more efficient data collection and display, information sharing, and data analysis. SMART policing programs can be grown in law enforcement agencies across the country through a comprehensive, federally-driven, national technical assistance program.

This kind of "policing", highlighted by pervasive use of cameras, ethnic profiling, data mining, attacks upon the Fourth Amendment, and "Electronic surveillance technologies that employ software capable of identifying behavioral anomalies," among other police state techniques.

But Gunn's association with CNA bespeaks even more troubling associations. Down the hall from IPR, so to speak, at CNA’s Stability and Development Program, part of CNA Strategic Studies, we find some interesting connections with major counterinsurgency operations in Iraq and Afghanistan.

Dr. Carter Malkasian, formerly assigned to the I Marine Expeditionary Force (I MEF) as an advisor on counterinsurgency, directs the Stability and Development Program, which focuses on counterinsurgency, irregular warfare, and post-conflict reconstruction. The team provides objective, analytic perspectives—grounded in an understanding of actual operations—to support decision-makers charged with planning and conducting security and development operations.

The range of issues includes: insurgency and counterinsurgency, ethnic conflict, development of indigenous forces, economic development of war-torn states, “Phase IV” reconstruction efforts, and the establishment of political institutions.

The team most recently spent time on the ground in Afghanistan advising Provincial Reconstruction Teams (PRTs).

What are PRTs?

The Provincial Reconstruction Teams (PRTs) are “non-kinetic” operations carried out jointly by small number of lightly armed military personnel and civilian staff from the diplomatic community and development agencies to promote governance, security and reconstruction throughout the post-9.11 Afghanistan and Iraq. PRTs can be characterized in two ways: one as a miniature of multidimensional peacekeeping operations or “peacekeeping-lite,”and the other as an extended civil-military operation center (CMOC) or “super-CMOC.”

And the PRTs have some questionable activities, beyond humanitarian work:

The PRTs have critics in the international aid community. A recent analysis from the think tank Overseas Development Institute, said “In Afghanistan, Provincial Reconstruction Teams (PRTs) were perceived as blurring the lines between humanitarian and military action.”

Amnesty International ran across some shady operations conducted by some of the PRTs that involved torture:

Amnesty International is concerned that ISAF troops from New Zealand operating in Afghanistan and particularly the Provincial Reconstruction Team (PRT) could be involved in transferring detainees to Afghan security forces.

While New Zealand was not one of those countries surveyed in the AI report, NZ is a participant in the ISAF and has a Provincial Reconstruction Team in Afghanistan.... “The NZ PRT (107 personnel as of October 2007) Bamyan is tasked with maintaining security in Bamyan Province. It does this by conducting frequent presence patrols throughout the province.”, [sic] may apprehend and transfer detainees,” says Amnesty International Spokesperson Gary Reese.

In March this year, Amnesty International raised our concerns to Hon Phil Goff, Minister of Defence, that the 50-70 detainees handed over to U.S. forces by the NZ SAS could be subject to torture at Guantanamo Bay or other secret detention centres in a third country (through the US practice of ‘extraordinary rendition’).

What happens to those transferred from PRTs operating in Afghanistan to Afghan security forces? They are almost certainly tortured.

Scores of NDS detainees, some arrested arbitrarily and detained incommunicado, that is without access to defence lawyers, families, courts or other outside bodies, have been subjected to torture and other ill-treatment, including being whipped, exposed to extreme cold, deprived of food and shocked with electrical probes.

Saying all this does not mean that Vice Adm. Gunn is somehow personally involved in torture. But his connection with an agency that is directly involved in activities advising military activities that themselves have been associated with torture makes him a dubious witness, to be sure. At least someone on the Judiciary Committee should have asked him about such links. No one did.

In any case, what we are witnessing is a corralling of all establishment criticism of the interrogations torture, and other crimes of the Bush administration by individuals highly invested in maintaining the legitimacy of U.S. military policy as a whole, including its pacification operations in Iraq and Afghanistan. It is precisely these operations that involved the mass round-up of prisoners, thousands of whom were and many still remain imprisoned, and an untold number tortured.

More of the Usual Suspects: Farmer

The last of today's witnesses to be examined here is John Farmer, Jr.

Why is this guy testifying? Because he knew how to keep criticism of Giuliani toned down at the 9/11 commission? What’s his view on imprisoning “terrorists”? Does anyone remember his op-ed in the New York Times last year? In the name of reform of how “terrorists” have been treated by the criminal courts, and understanding how the Bushistas twisted criminal law into something unlawful, Farmer doesn’t propose an end to that only. No, he wants to create a new system of preventive detention!

A closer look at the Padilla case and other terrorism prosecutions reveals, to the contrary, that the continued reliance on our criminal justice system as the main domestic weapon in the struggle against terrorism fails on two counts: it threatens not only to leave our nation unprotected but also to corrupt the foundations of the criminal law itself.

The use of the criminal law in terrorist cases has never been an easy fit. After all, the primary purpose of counterterrorism is the prevention of future acts, while the criminal law has developed primarily to punish conduct that has already occurred. The question raised by the Padilla trial is whether a case about an attack that never actually happened can be tried in the criminal courts without transforming the nature of that system itself.

The answer is no. In order to make the criminal justice system an effective weapon, we have already started extending the reach of criminal statutes to conduct that has never before been punishable as a crime….

It is time to stop pretending that the criminal justice system is a viable primary option for preventing terrorism. The Bush administration should propose and Congress should pass legislation allowing for preventive detention in future terrorism cases like that of Mr. Padilla. It is the best way to ensure both the integrity of our criminal law and the safety of our nation.

Rivkin, Rabkin, Pickering, Nunn, and Frederick A.O. Schwarz, Jr. Besides Schwarz, who works with the distinguished legal civil liberties-oriented Brennan Center for Justice, this was a stacked list of witnesses, with the majority supporters of the "war on terror" and "homeland security" schemes that are anti-democratic. In the case of Pickering, we have some implicated in collaboration with those who committed exactly the same types of crimes the commission is supposed to address. What a farce! I cannot think of words of base calumny strong enough.

If this is the direction this commission is headed, then it should be boycotted. While I can support the direction an organization like Physicians for Human Rights wants to take such a torture investigation (see their letter to Sen. Leahy, PDF, from earlier today), I think that establishment human rights organization and liberals in general underestimate the entrenched nature of the powers who allowed torture to take place, and have great investment in maintaining the inviolability of the right of the state to use coercive force.

My case study for this -- and it's starting to look less like a cause, than now, sadly, a case study -- is the indifference with which the political elite treated the exposure of the Army Field Manual as riddled with abusive interrogation techniques, amounting to torture. Outside of a handful of blogs and commentators, and a few human rights organizations, including PHR and Center for Constitutional Rights, the issue has gone dead in the water. No one in Congress seems interested. They'd much rather listen to Thomas Pickering, or even David Rivkin.

I recommend my readers go to CCR's webpage on Prosecutions and Accountability and follow the action steps there. They include a letter that can be signed to Sen. Leahy:

We are also calling upon Sen. Patrick Leahy, who is holding a hearing on March 4 of the Senate Judiciary Committee to discuss a “truth commission” to investigate the crimes of the Bush administration, to support prosecutions for those government officials who violated the law. Sign a letter to Sen. Leahy and the Judiciary Committee calling for them to support prosecutions, and to oppose any immunity for the architects of these torture programs.