Criminal complaint against Bush era architects of torture

The Center for Constitutional Rights released the following important press release today. It discusses the first of what should be many such calls for prosecution of US officials following upon the release of the Senate Select Committee on Intelligence's Executive Summary of their full investigation into CIA torture.

CCR Legal Director Baher Azmy has stated, “Both US law and international law require torturers and those responsible for torture to be prosecuted. If we won’t do it, other countries will—the architects of the torture program may want to plan their travel carefully going forward.”

The Federal Prosecutor must investigate former CIA boss Tenet, former Secretary of Defense Rumsfeld and others - and should not wait until they are on German soil

Berlin, 17 December 2014 – The European Center for Constitutional and Human Rights (ECCHR) in Berlin has today lodged criminal complaints against former CIA head George Tenet, former Defense Secretary Donald Rumsfeld and other members of the administration of former US President George W. Bush. The ECCHR is accusing Tenet, Rumsfeld and a series of other persons of the war crime of torture under paragraph 8 section 1(3) of the German Code of Crimes against International Law (Völkerstrafgesetzbuch). The constituent elements of the crime of torture were most recently established in the case by the US Senate in its report on CIA interrogation methods. “The architects of the torture system - politicians, officials, secret service agents, lawyers and senior army officials – should be brought before the courts,” says ECCHR General Secretary Wolfgang Kaleck, who is appearing today in connection with the issue in front of the German Parliamentary Committee on legal affairs. “By investigating members of the Bush administration, Germany can help to ensure that those responsible for abduction, abuse and illegal detention do not go unpunished.”

The US Senate report devotes one section explicitly to the case of German citizen Khaled El Masri, who was abducted by CIA agents in 2004 due to a case of mistaken identity and was tortured in a secret detention center in Afghanistan. The criminal complaint details the US Senate report’s finding that once the unlawful error was discovered, the former CIA director refused to take further steps against those responsible.

ECCHR calls on Federal Prosecutor Harald Range to open investigations into the actions of Tenet, Rumsfeld and other perpetrators and to set up a monitoring process as soon as possible. This would allow the German authorities to act immediately in the event that one of the suspects enters European soil and not have to wait until such point before beginning the complex investigations and legal deliberations.

Together with the US Center for Constitutional Rights (CCR), Kaleck previously submitted criminal complaints against Tenet and Rumsfeld in Germany in 2004 and 2006 and against Bush in Switzerland in 2011. ECCHR is also involved in legal proceedings in Spain and France concerning Guantánamo. The current criminal complaint by ECCHR is supported by former UN Special Rapporteur on Torture Manfred Nowak, the CCR in New York along with its President Emeritus Michael Ratner and its Vice President Peter Weiss, winner of the Martin Ennals Awards 2014 Alejandra Ancheita, Professor for International and Public Law at the Vrije Universiteit Brussels Annemie Schaus, Professor for Criminal Law at the University of Hamburg Florian Jeßberger and Berlin attorney Dieter Hummel.

Read the English summary of the complaint on CCR's website.
You can also read more about their universal jurisdiction work here.

Report Calls for Investigation and Prosecution of Top Government Officials for Acts of Torture

The following is a press release from Human Rights USA about an important new effort to press for prosecutions of U.S. war criminals for the torture.

WASHINGTON, D.C., January 4, 2012: In the aftermath of the attacks on September 11th, high-ranking U.S. government officials planned and authorized acts of torture against detainee terror suspects in violation of both domestic and international law, said Human Rights USA in a report released today.

The report, Indefensible: A Reference for Prosecuting Torture and Other Felonies Committed by U.S. Officials Following September 11th [PDF link], details the voluminous evidence indicating that illegal interrogation techniques were the official policy of the Bush Administration.

More than ten years after the onset of the Bush Administration’s post-9/11 anti-terrorism policies, not a single torture survivor has succeeded in holding a top government official accountable in a U.S. court for the indefensible act of torture due in large part to legal maneuvering by both the Bush and Obama Administrations. The report serves as a practitioner's reference, addressing the domestic and international laws implicated by the actions of certain former high-ranking government officials, and laying the groundwork for litigation of those prosecutions.

“Repudiation of torture and accountability for the government officials who authorized it is essential in order to restore the rule of law in the United States and prevent similar acts of torture from being repeated in the future,” said Allison Lefrak, litigation director of Human Rights USA. “Our country’s legal system relies on the fundamental principle that no one is above the law – even top government officials.”

While certain actions taken by President Obama indicate his desire to break with the lawless ways of the Bush Administration, he has failed to fulfill his international legal obligation to investigate these crimes of torture and other cruel, inhuman and degrading treatment. This failure to investigate acts of torture committed by top U.S. government officials provides them with an unacceptable veneer of legitimacy.
The report is a call for action. If accountability cannot be achieved through the courts, it becomes even more critical that the U.S. government properly investigate acts of torture either through the appointment of a Special Counsel or alternatively by Congressional enactment of a Commission of Inquiry.

The report is the result of a multi-year collaborative effort between Human Rights USA and the International Human Rights Law Clinic at American University Washington
College of Law. Information about the upcoming release event and an online version of the report is available online at http://humanrightsusa.org.

Human Rights USA is a non-profit organization in Washington, DC that seeks to enforce human rights responsibilities in the U.S. legal system. Using impact litigation and other legal strategies, Human Rights USA seeks to obtain justice for survivors of human rights violations, to hold the perpetrators accountable, and deter future violations.

The International Human Rights Law Clinic at American University College of Law carries out its mission of client representation in a broad range of cases and projects – all of which share a commitment to justice through the advancement of international human rights law, both domestically and internationally.

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

Cross-posted from MyFDL/Firedoglake

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

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

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

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

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

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

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

Why this report now?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Former Intelligence Officers Protest CIA Directors' Attempt to Spike Torture Prosecutions

This was posted at consortiumnews.com today (H/T Ulana Odezynsky). Hatred for George Tenet is quite extensive in the intelligence community, and as you read the text below, you will see why. It's my belief the CIA has a portion within its covert operations and science and technology directorates whose hands are not as clean over the years as VIPS might like to think, or portray.

Be that as it may, this open warfare within the intelligence agencies is a significant event within the intelligence community, and the VIPS statement deserves wide circulation.

MEMORANDUM FOR: The President
FROM: Veteran Intelligence Professionals for Sanity (VIPS)

SUBJECT: Accountability for Torture

We write you, Mr. President, as former intelligence professionals to voice strong support for Attorney General Eric Holder’s authorization of a wider investigation into CIA interrogation. We respectfully disagree with the direct appeal to you by seven former CIA directors to quash that wider investigation.

The signatories of this Memorandum are former intelligence officers and analysts who have worked with CIA directors going back as far as Allen Dulles. Our cumulative experience totals more than 200 years.

We are encouraged by your own support for Attorney General Holder’s decision to have federal prosecutor John Durham investigate possible criminal activity by individuals engaging in torture and other violations of international agreements on the treatment of detainees.

From our own experience in intelligence, both as field operators and as senior analysts, we know that personal accountability is vital to maintaining an effective intelligence service that reflects our best traditions and the rule of law.

Among the former CIA directors who, by letter of September 18, asked you to “reverse” the attorney general’s decision are some who were cognizant of and involved in decisions that led to the abuses in question. We find that troubling.

Clearly, the role of CIA directors in issuing orders that led to inappropriate behavior, and their failure to hold officers accountable, helped create the environment in which abuses occurred — the ones detailed in the Special Review of the CIA Inspector General, for example.

No analytical leap is required to conclude that those particular CIA directors might have understandable interest in blocking investigation of their own complicity. They include, first and foremost, George Tenet — many of whose misdeeds are already a matter of public record. To mention just a few:

—Tenet was the chief enabler of torture. He also oversaw widespread kidnapping (“extraordinary rendition”), which in some cases led to torture.

—Our sources tell us that Tenet knew about the overstepping of the guidelines approved by the lawyers and that he knew the people doing it. Rather than restrain them, he pushed them still harder, in an attempt to please his masters.

We strongly believe that investigations of possible wrongdoing cannot, in all fairness, be limited to the proverbial “bad apples at the bottom of the barrel.” Rather, in our view, such investigations must be allowed to go wherever the evidence leads.

The inquiry last year by the Senate Armed Services Committee provides a good model for doing precisely that. The main conclusion of the committee’s “Inquiry Into the Treatment of Detainees in U.S. Custody,” approved last fall without dissent, was captured in its first subhead: “Presidential Order Opens the Door to Considering Aggressive Techniques.”

The Hollywood version of the CIA portrays amoral spies willing to do anything without regard to ethics or human rights. Our own long experience persuades us that the intelligence community has an abundance of men and women of outstanding character, who are committed to the rule of law, and whose primary desire is to serve the nation and protect the American people.

However much former CIA directors and other people at risk might wish to derail an investigation into possible war crimes, we believe the moral standing of our nation requires that we apply the same standards to offenses by U.S. officials as we would to accusations of war crimes by those in other countries.

For all these reasons, we strongly endorse efforts by the Department of Justice to investigate allegations of torture and human rights abuses by any Americans — CIA officers and contractors included.

Please regard this Memorandum as follow up to the more extensive comments on torture in the VIPS review prepared for you in late April. A copy of that Memorandum was eventually posted at Consortiumnews.com (see http://tinyurl.com/cvvr2x).

Veteran Intelligence Professionals for Sanity
Steering Group

Ray Close, National Clandestine Service (CIA), Princeton, NJ
Phil Giraldi, National Clandestine Service (CIA), Purcellville, VA
Melvin A. Goodman, US Army, CIA, Dept. of State, Dept. of Defense, Bethesda, MD
Larry Johnson, CIA & Department of State, Bethesda, MD
Pat Lang, US Army (Special Forces), DIA, Alexandria, VA
David MacMichael, National Intelligence Council, Linden, VA
Tom Maertens, Department of State, Mankato, MN
Ray McGovern, US Army, CIA, Arlington, VA
Sam Provance, US Army (Abu Ghraib), Greenville, SC
Coleen Rowley, FBI, Apple Valley, MN
Greg Thielmann, Dept. of State, Sen. Intelligence Committee Staff, Arlington, VA
Ann Wright, US Army, Department of State, Honolulu, HI

Here is a PDF of the letter from the CIA directors to President Barack Obama, H/T Opinio Juris.

Health Professionals: Take action to demand accountability for torture

The non-profit Bill of Rights Defense Committee has issued a series of open letters to Attorney General Eric Holder and the Senate Select Intelligence Committee. These letters address this nation's ongoing struggle to own up to the use of torture, and hold accountable those government and private individuals that planned and implemented it.

There are letters specifically written for signing by legal professional, clergy and religious lay-leaders, educators, and the general public.

The following is the text of the letter for signature by health professionals, including physicians, psychologists, nurses, medical students, or other health professionals. Both this letter and links for the other categories of signatories can be found at this link. Please go and sign the letter today.

The Honorable Eric H. Holder
Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
Dear Mr. Attorney General:

We, the undersigned health professionals, write to share our concerns that your office’s reluctance to appoint a special prosecutor to investigate potential crimes by former officials involved in torturing detainees is endangering our nation’s stated fundamental values and our credibility as a nation that values and defends human rights.

The investigation of potential crimes, as others have shown, holds profound implications for our nation’s international legitimacy and future opportunities to credibly promote human rights. It also holds immense importance for the future historical record, as well as the necessary policy debates addressing detention, surveillance, and other violations of civil liberties under the Obama administration going forward.

Our concern here is more specific, reflecting our particular expertise as health professionals. Some mental health professionals and physicians abandoned our profession’s ethical commitment to “do no harm” and instead facilitated the abuse and torture of detainees in U.S. custody.

For example, when detainees were waterboarded, or shackled by their hands and feet to induce sleep deprivation, medical personnel and psychologists calibrated the intensity of abuse to ensure that it could continue. In addition, some military and intelligence psychologists helped design, conduct, and teach abusive interrogation techniques used by the CIA and Department of Defense.

Our professions’ participation in these abuses is an appalling affront to not only our ethical code, but also the law. Efforts within our professions to hold our members accountable for their role in torture are part of the solution, but do not complete it. Nor can those efforts reach other officials outside our professions who also enabled or conducted detainee abuse. Until our nation investigates and prosecutes those responsible for torturing detainees, the future use of torture will remain a risk facing our nation, our professions, and their respective values.

We urge you, in your capacity as our nation’s senior prosecutor, to restore the rule of law by ensuring its equal application to all.

Respectfully submitted,
The undersigned health professionals

cc: [members of the U.S. Senate Select Committee on Intelligence]

H/T to Stephen Soldz for notification of this campaign, and to both him and Physicians for Human Rights for their assistance in drafting the letter above.

White House: No to Prosecutions for "Those Who Devised (Torture) Policy"

This morning on ABC's "This Week with George Stephanopoulos", Obama's chief of staff, Rahm Emanuel, said the White House did not support prosecuting -- not only CIA officers who tortured, believing in "good faith" what they were doing was legal -- but would also not support the prosecution of "those who devised the [interrogations/torture] policy." This is clearest statement yet from the Obama White House of their (non-)intentions, and it's an outrage. -- Here's the link to the video, and H/T to Ateo.

Now we find out how much the liberal blogosphere really cares about prosecutions of torturers from the Bush administration? Because the gauntlet is now thrown down (not by me, by Obama).

A federal anti-torture statute (18 U.S.C. § 2340A), enacted in 1994, provides for the prosecution of a U.S. national or anyone present in the United States who, while outside the U.S., commits or attempts to commit torture. Torture is defined as an "act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control." A person found guilty under the act can be incarcerated for up to 20 years or receive the death penalty if the torture results in the victim's death. [H/T Edger]

Whoever, knowing that an offense has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact; one who knowing a felony to have been committed by another, receives, relieves, comforts, or assists the felon in order to hinder the felon's apprehension, trial, or punishment. U.S.C. 18 [H/T bobdevo]

More to come....

Go Viral with This: Prosecute the Bush Torturers!

Hat-tip to buhdydharma

More than Nuremberg: Thousands Prosecuted for War Crimes After World War II

While the example of the Nuremberg Trials is used often these days to describe what prosecutions might look like, few seem to remember that the prosecution of war criminals after World War II was much larger and took place over a longer period of time than most people realize. This is important when one considers the context of President Obama's granting of immunity to lower-level CIA interrogators (if they acted in "good faith" upon "authoritative" legal advice).

What even a cursory examination of historical precedent demonstrates is that after World War II prosecution of war criminals and accessories to war crimes were not limited to the famous Nuremberg 22 high-level Nazis, nor the few hundred or so prosecuted through the Nuremberg tribunals, but thousands of accused throughout Europe.

What follows is a brief lesson in how these prosecutions occurred, who was involved, and where and when they took place. It may surprise you that the United States, for instance, has an Office of Special Investigations (OSI) at the US Department of Justice. Its mission was to hunt down war criminals and bring them to justice. Established only in 1979, the OSI has a sterling record:

As of 2008, OSI has successfully prosecuted 107 Nazi persecutors. OSI has also worked closely with the Department of Homeland Security to stop more than180 former European and Japanese Axis perpetrators and suspected perpetrators of acts of persecution at U.S. ports of entry and bar them from entering the United States.

But looking back to the immediate post-World War II period, I found this at Teachers Guide to the Holocaust:

In addition to the well-known Nuremberg Trials of 1945-46 [of 22 defendents], there were Subsequent Nuremberg Proceedings held between December 1946, and April 1949, which tried 177 persons. Individual countries also prosecuted war criminals in national courts of law. The British held trials of the commandant and staff of the Bergen-Belsen camp, those responsible for forced labor, and the owners and executives of the manufacturer of Zyklon B, among others. The Netherlands, Hungary, Norway, Poland, West Germany, and Romania were some of the other countries that brought war criminals to trial.

Prosecutions continued for decades after World War II. Many are familiar with the trials of Adolph Eichmann and Klaus Barbie. Consider this from Eli Rosenbaum, who in 2000 was Director of the OSI at the US Department of Justice:

Let us look, if you will, just at the past month, February 2000. In one month, my office won two prosecutions. One at the United States Board of Immigration Appeals, the other, two weeks ago, at the United States Supreme Court, involving the case of former Auschwitz SS man Ferdinand Hammer. The Canadian government, just last week, won its citizenship case against Helmut Oberlander, a member of a mobile killing unit. And just last month, the British authorities won the appeal of the Sawoniuk case, a Ukrainian perpetrator, at the High Court in London. And only a few months ago the Croatian government, which frankly had to be dragged kicking and screaming into this prosecution, successfully prosecuted Dinko Sakic, the former commandant of the Jasenovac concentration camp.

Then, there's also the Documentation centers established to bring war criminals to justice (from the Danish Center for Holocaust and Genocide Studies):

After World War II, centres, commissions and offices were established with the purpose of bringing Nazi war criminals to trial. They collect information, investigate crimes, pass on names of Nazis to their respective governments and take action against Nazi criminals in their own countries.

‘Zentrale Stelle Ludwigsburg’ is Germany’s documentation centre, which collects evidence for the prosecution of crimes committed during the nazi regime in the period 1933-1945.

Immediately after World War II, the provisional Polish government established the ‘Central Commission for Investigation of German Crimes in Poland’. The main commission has since then investigated nazi crimes committed in Poland during World War II and these days exist under a different name, the 'Main Commission for the Investigation of Crimes against the Polish Nation'....

The ‘Simon Wiesenthal Center’ in Vienna, founded by the Nazi-hunter Simon Wiesenthal, is perhaps the most famous documentation centre. Since World War II, the centre has tracked down many Nazi war criminals.

And the trials continued:

Poland was relatively quick to convict the camp personnel from Auschwitz – at least those that could be found. Trials were initiated against at least 600 members of the Auschwitz camp personnel. Among these were the two camp commandants, Rudolf Höss and Arthur Liebehenschel, who were sentenced to death in 1947. Rudolf Höss was hanged in Auschwitz in 1941. A total of 21 were executed....

In West Germany the so-called Auschwitz Trials were conducted against the camp guards from the concentration and extermination camp at Auschwitz. The largest of these trials took place in Frankfurt am Main between 1963 and 1965, where 20 were accused. 17 were given jail sentences....

On 3 July 1964 twelve of the personnel in the extermination camp Sobibor stood accused of participating in the murder of Jews in the camp. All twelve were accused of assisting in the killings. The trial itself began in Hagen on 6 September 1965 and ended on 20 December 1966. More than 100 witnesses were called.

Major war crimes trials occurred in over 30 European cities between 1943-1947, from Paris to Riga, from The Hague to Bratislava, Bucharest, and Kharkov. Among those prosecuted were "concentration camp guards and commandants, police officers, members of the mobile killing squads, and doctors who participated in medical experiments."

The U.S. National Holocaust Memorial Museum has this to say:

The overwhelming majority of post-1945 war crimes trials involved lower-level officials and functionaries. In the immediate postwar years, the four Allied powers occupying Germany (and Austria) -- the United States, Great Britain, France, and the Soviet Union -- held trials in their zones of occupation and tried a variety of perpetrators for wartime offenses. Many of the earliest zonal trials, especially in the U.S. zone, involved the murder of Allied military personnel who had been captured by German or Axis troops. In time, however, Allied occupiers expanded their juridical mandate to try concentration camp guards and commandants and others who had committed crimes against Jews and others who suffered persecution in areas the Allies now occupied. Much of our early knowledge of the German concentration camp system comes from the evidence and eyewitness testimonies at these trials....

Allied Control Council Law No. 10 of December 1945 authorized German courts of law to pass sentence on crimes committed during the war years by German citizens against other German nationals or against stateless persons. For this reason, occupation officials left Euthanasia crimes -- where both victims and perpetrators had been predominantly German nationals -- to newly reconstructed German tribunals. These proceedings represented the first German national trials in the early postwar period. Both the German Federal Republic (West Germany) and the German Democratic Republic (East Germany) continued to hold trials against Nazi-era defendants in the decades following their establishment as independent states. To date, the Federal Republic (in its old manifestation as West Germany and in its current status as a united Germany) has held a total of 925 proceedings trying defendants of National Socialist era crimes. Many detractors have criticized German proceedings, particularly those held in the 1960s and 1970s, for doling out acquittals or light sentences to aging defendants or defendants who claimed superior orders.

Many nations which Germany occupied during World War II or who collaborated with the Germans in the persecution of civilian populations, especially Jews, have also held national trials in the years following World War II. Poland, the former Czechoslovakia, the Soviet Union, Hungary, Romania, and France, among others, have tried thousands of defendants -- both Germans and indigenous collaborators, in the decades since 1945. The Soviet Union held its first trial, the Krasnodar Trial, against local collaborators in 1943, long before World War II had ended. Perhaps Poland's most famous postwar national trial was held in 1947 in Krakow. The proceedings tried a number of functionaries of the Auschwitz concentration camp and sentenced Auschwitz camp commandant Rudolf Höss and others to death.

Another source notes the French tried over 2,000 "lesser criminals for crimes against humanity and war crimes" (see footnote 9 at link).

As we can see, the amount of people prosecuted for war crimes is much more than most people (even myself, prior to doing this research) imagined!

As the protest over the immunity granted by Obama to CIA torturers continues -- as to how much immunity it really grants, whether it was smart, whether it was a capitulation to blackmail, or a wily maneuver to get the top leadership of the Bush years -- we should all consider the lessons of history as regards prosecutions for war crimes. This history, so recent it seems, is already largely forgotten or misunderstood as pertains to the prosecutions argument.

This brief essay is an attempt to correct those misconceptions, and restore a sense of continuity with the precedents set by our immediate forebears as regards who should be prosecuted for war crimes. The criminals who are or recently were in the U.S. government should soberly consider the many decades the pursuit of war crimes can persist.

If I were them -- and I say this with a straight face -- I'd turn myself in and throw myself on the mercy of the court.

Sick Torture Memos Also Lie: A Closer Look at the Bybee Memo

Also posted at AlterNet

Reading the just released August 1, 2002 memo by John Yoo (reportedly ghosting for Jay Bybee, then Assistant Attorney General of the United States, and now an Appeals Court Judge for the Ninth Circuit), to John Rizzo, then Acting General Counsel for the CIA, on the interrogation of Abu Zubaydah, is a surreal experience. There is so much that is strange and awful in it, it's hard to know where to begin.

But one thing that struck me right off the bat was the similarity of the statistics presented in the early part of the memo with the statement of Dr. Jerald Ogrisseg, a psychologist with Joint Personnel Recovery Agency, United States Joint Forces Command, before the Senate Committee on Armed Services on June 17, 2008.

Let's review some of the relevant text.

Yoo/Bybee write, "This letter memorializes our previous oral advice, given on July 24, 2002, and July 26, 2002, that the proposed conduct would not violate this prohibition." The prohibition referred to is the U.S. torture statute, Section 2340A, Title 18 of the U.S. Code.

In his statement, Ogrisseg states that July 24, 2002 was the date of his memorandum “Psychological Effects of Resistance Training.” Dr. Ogrisseg was then still a psychologist working for the Survival, Evasion, Resistance, and Escape (SERE) at the United States Air Force Survival School at Fairchild Air Force Base, Washington. Only a few days after filing his report with the commander of Joint Personnel Recovery Agency, the parent Pentagon organization for all the military SERE programs, on July 29 he became a civilian SERE psychologist, with a number of various duties.

More from Dr. Ogrisseg:

Mr. Chairman, with regards to my July 2002 communications with then Lt Col Dan Baumgartner, the then Chief of Staff of JPRA, my recollection is that Lt Col Baumgartner called me directly, probably on the same day that I generated my 24 July 2002 memorandum that I referenced earlier. He indicated that he was getting asked “from above” about the psychological effects of resistance training. I had no idea who was asking Lt Col Baumgartner “from above” and did not ask him to clarify who was asking. I recall reminding Lt Col Baumgartner in general terms about program evaluation data I’d presented in May of 2002 at the SERE Psychology Conference. These data, which were collected on Air Force survival students at different points of time during training, indicated that training significantly improves students confidence in their ability to adhere to the Code of Conduct.

Why might Bybee, Rizzo, Yoo or others have been interested in Ogrisseg's study of SERE psychological effects? The initial portions of the Aug. 1, 2002 memo are concerned primarily with demonstrating that the techniques migrating into the interrogation arena from SERE training programs were not harmful, physiologically or psychologically, at least not in a way that would violate the law as construed by the OLC attorneys.

Despite the presence of a "SERE training psychologist" from the very beginning of Zubaydah's interrogation. Captured in March 2002, Zubaydah told the ICRC he was tortured from the time of capture. He was allegedly waterboarded by June 2002. Now, unhappy with their intel, CIA was planning to move into an "increased pressure phase" on Zubaydah. OLC notes in the memo that it is relying on information about Zubaydah and Yoo/Bybee warns Rizzo if the "facts in your possession [are] contrary to the facts outlined here", then their "advice would not necessarily apply."

Were they suspicious about the situation as reported by Rizzo? Emptywheel noticed the reticence. The memo states (emphasis added):

According to your reports, Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from your proposed interrogation methods.....

Nowhere else, significantly, does Yoo feel the need to quote so selectively and in such detail about what CIA Acting Counsel John Rizzo had represented to him.

Meanwhile, this is what Dan Coleman--an FBI guy with deep knowledge of al Qaeda--had to say about AZ in Ron Suskind's One Percent Doctrine:

Meanwhile, Dan Coleman and other knowledgeable members of the tribe of al Qaeda hunters at CIA were reading Zubaydah's top secret diary and shaking their heads.

"This guy is insane, certifiable, split personality," Coleman told a top official at FBI after a few days reviewing the Zubaydah haul.

In any case, the OLC felt it had to make the SERE techniques look as innocuous as possible. The techniques to be approved included the "attention grasp", "walling," facial slaps, "facial hold," cramped confinement, sleep deprivation, "wall standing" (really slamming a prisoner against the wall violently), insects placed in a confinement box, waterboarding, and stress positions.

Bybee/Yoo reeled off a series of statistics to Rizzo:

Through your consultation with various individuals responsible for such [SERE] training, you have learned that these techniques have been used as elements of a course of conduct without any reported incident of prolonged mental harm.

The memo mentions that hardly any complaints re SERE training were made to Congress, that one SERE "official" (name redacted) had trained 10,000 students in over three and a half years with only two dropouts, and "rare" requests for psychological counseling. The memo continues:

You have consulted with [redacted] who has ten years of experience with SERE training [about two lines redacted] He stated that, during those ten years, insofar as he is aware none of the individuals who completed the program suffered any adverse mental health effects.....

Additionally, you received a memorandum from the [redacted, about one line] which you supplied to us. [Redacted] has experience with the use of all these procedures in a course of conduct, with the exception of the insect in the confinement box and the waterboard. This memorandum confirms that the use of these procedures has not resulted in any reported instances of prolonged mental harm, and very few instances of immediate and temporary adverse psychological responses during the training. Of the 26,829 students trained from 1992 through 2001 in the Air Force SERE training, 4.3 percent of those students had contact with psychology services. Of those 4.3 percent, only 3.2 percent were pulled from the program for psychological reasons. Thus, out of the students trained overall, only 0.14 percent were pulled from the program for psychological reasons.

Surely one can do amazing things with statistics, and these last statistics seem very similar to those Dr. Ogrisseg had found in his research, presented the same day as the first oral approval by OLC to CIA in the Zubaydah request.

From Dr. Ogrisseg's statement:

Then, I recall Lt Col Baumgartner asking me if I thought training was harmful to students. This question and my responses to it formed the basis of my 24 July 2002 memorandum to Lt Col Baumgartner, which is the best record of the conversation that we had. In general terms, I indicated that a very small percentage of students (4.3%) had adverse psychological reactions to our training, but we (the survival psychology staff) were able to re-motivate almost all of those having adverse reactions (96.8%) to complete training. Thus, less than .2% of the roughly 14,000 students were unable to complete training due to psychological problems which arose during training.

The numbers aren't an exact match -- except that 4.3 percent figure -- but close enough. Perhaps the original figures from his July 24 paper would fit even better, but then it's likely OLC was playing fast and loose with the figures. They are certainly close enough to assume with strong presumption that it was Ogrisseg's July 24 memorandum that was being quoted in this part of the memo.

Too bad they didn't look farther into what Ogrisseg then said he told Lt. Col. Baumgartner (emphasis added):

Finally, as indicated in my 24 July 2002 memorandum, Lt Col Baumgartner asked me if I’d never seen the waterboard used, and what I thought of it. I told him that I had seen it used while observing Navy training the previous year, and that I would never recommend using it in training. He asked me why and if I thought it was physically dangerous. I responded that I didn’t see anyone getting physically injured when I observed it, and as stated in my memorandum, the Navy was applying it to medically screened trainees with medical personnel immediately available to monitor and intervene if necessary. However, that wasn’t the point, as psychologically the waterboard produced capitulation and compliance with instructor demands 100% of the time. During debriefings following training, students who had experienced the waterboard expressed extreme avoidance attitudes such as a likelihood to further comply with any demands made of them if brought near the waterboard again. I told Lt Col Baumgartner that waterboarding was completely inconsistent with the stress inoculation paradigm of training that we used, and was more indicative of a practice that produces learned helplessness – a training result we tried strenuously to avoid. The final area I recall Lt Col Baumgartner asking me about were my thoughts on using the waterboard against the enemy. I asked [sic] responded by asking, “wouldn’t that be illegal?” He replied that some people were asking from above about the utility of using this technique against the enemy for the same reasons I wouldn’t use it in training. I replied that I wouldn’t go down that path because, aside from being illegal, it was a completely different arena that we in the Survival School didn’t know anything about. When we concluded the talk, Lt Col Baumgartner asked if I would write him a memo reflecting what we’d just discussed regarding the psychological effects of training so he could include it with other materials he was sending up. He also asked if I would comment on both the physical and psychological effects of the waterboard. I replied that I would, and drafted the memo.

Investigators or prosecutors might want to look at Dr. Ogrisseg's July 24 memorandum, because it appears to be prime evidence for OLC cherry-picking of results regarding the effects of the interrogation techniques in question. Yoo or Bybee or Rizzo, or all three, took the statistics that made their case, and ignored anything else.

We also know Bybee saw the July SERE memorandum from his own testimony before the Senate Armed Services Committee:

Before drafting the opinions, Mr. Yoo, the Deputy Assistant Attorney General for the OLC, had met with Alberto Gonzales, Counsel to the President, and David Addington, Counsel to the Vice President, to discuss the subjects he intended to address in the opinions. In testimony before the House Judiciary Committee, Mr. Yoo refused to say whether or not he ever discussed or received information about SERE techniques as the memos were being drafted. When asked whether he had discussed SERE techniques with Judge Gonzales, Mr. Addington, Mr. Yoo, Mr. Rizzo or other senior administration lawyers, DoD General Counsel Jim Haynes testified that he “did discuss SERE techniques with other people in the administration.” NSC Legal Advisor John Bellinger said that “some of the legal analyses of proposed interrogation techniques that were prepared by the Department of Justice... did refer to the psychological effects of resistance training.”

(U) In fact, Jay Bybee the Assistant Attorney General who signed the two OLC legal opinions said that he saw an assessment of the psychological effects of military resistance training in July 2002 in meetings in his office with John Yoo and two other OLC attorneys. Judge Bybee said that he used that assessment to inform the August 1, 2002 OLC legal opinion that has yet to be publicly released.

The OLC and CIA also ignored a wealth of other published information about the effects of SERE "stress inoculation," such as the June 2000 article, "Assessment of Humans Experiencing Uncontrollable Stress: The SERE Course," in Special Warfare:

Results

As shown in the charts on page 7, SERE stress caused significant changes in students' hormone levels. Recorded changes in cortisol levels were some of the greatest ever documented in humans. In some cases, the changes noted among the trainees were greater than the changes noted in patients undergoing heart surgery....

Changes in testosterone levels were similarly remarkable: In some cases, testosterone dropped from normal levels to castration levels within eight hours.

Or how about this May 2000 article in Biological Psychiatry, Hormone profiles in humans experiencing military survival training?

Conclusions: The stress of military survival training produced dramatic alterations in cortisol, percent free cortisol, testosterone, and thyroid indices. Different types of stressors had varying effects on the neuroendocrine indices. The degree of neuroendocrine changes observed may have significant implications for subsequent responses to stress.

Looking at more psychological than physiological symptoms, one well-known 2001 study in the August 2001 edition of the American Journal of Psychiatry looked at dissociative symptoms, e.g., depersonalization, derealization, psychic or emotional numbing, general cognitive confusion (emphasis added):

The current study was designed to assess the nature and prevalence of dissociative symptoms in healthy humans experiencing acute, uncontrollable stress during U.S. Army survival training. METHOD: In study 1, 94 subjects completed the Clinician-Administered Dissociative States Scale after exposure to the stress of survival training. In study 2, 59 subjects completed the Brief Trauma Questionnaire before acute stress and the dissociative states scale before and after acute stress. A randomly selected group of subjects in study 2 completed a health problems questionnaire after acute stress. RESULTS: In study 1, 96% of subjects reported dissociative symptoms in response to acute stress. Total scores, as well as individual item scores, on the dissociation scale were significantly lower in Special Forces soldiers compared to general infantry troops. In study 2, 42% of subjects reported dissociative symptoms before stress and 96% reported them after acute stress.

96 percent! Well, these statistics are very different from those that appeared to say that less than 2% of SERE subjects had any significant psychological symptoms. It's all in how you frame it in the research world, and apparently in the legal world as well.

In summary, even an initial cursory look at the August 1, 2002 Bybee memo on the "Interrogation of Al Qaeda Operative" shows that the memos were written in bad faith, were meant to deceive, and utilized a memorandum by Jerald Ogrisseg that explicitly warned against using at least some of the techniques (waterboarding) that were approved by OLC.

I'm confident that other researchers will find much more wrong with the recently released OLC memos. Their extremely poor quality and their misrepresentations of medical and psychological information make them very hard to imagine using as the basis of "good faith" representations for those CIA interrogators for whom Attorney General Holder granted immunity, i.e., those "who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice..."

I suppose a lot rides now on how you define "authoritative legal advice."

PHR: Gov't Memos Confirm Role of Psychologists/MDs in Torture

The following statement was released by Physicians for Human Rights this morning:

OLC Memos Confirm Integral Role of Health Professionals in U.S. Torture

PHR Analysis of CIA Interrogation Tactics Confirms Severe and Long-Lasting Harm of Techniques

Cambridge, MA—The newly released Bush Administration’s Office of Legal Counsel (OLC) memos are detailed confirmation of the intimate involvement of health professionals in designing, supervising and implementing the CIA’s “enhanced” interrogation program. Tactics used by psychologists and supervised by medical personnel, including physicians, clearly constituted torture and a grave breach of medical ethics. The memos specifically reference psychologists from the SERE (Survival, Evasion, Resistance, Escape) training program, medical experts, and consultations “with outside psychologists” and “with a number of mental health experts.”

“The health professionals involved in the CIA program broke the law and shame the bedrock ethical traditions of medicine and psychology,” stated Frank Donaghue, Chief Executive Officer of PHR. “All psychologists and physicians found to be involved in the torture of detainees must lose their license and never be allowed to practice again.”

Physicians for Human Rights (PHR), in collaboration with Human Rights First, published a 2007 study, Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality, conclusively showing the illegality of, and long-term mental and physical harm caused by, these tactics.

“Strained legal rationalizations for torture techniques should provide no cover for health professionals who helped design and implement them,” stated John Bradshaw, Washington Director of PHR. “The White House and Congress must work together to ensure public accountability for these crimes and violations of medical ethics.”

Further investigation of the role of health professionals in the subsequent implementation of these illegal techniques, as called for in the memos, must be conducted by an independent commission which includes a specific focus on health professional complicity.

"These techniques rise to the level of war crimes and can cause catastrophic physical and mental suffering, lasting for years after an individual has been subjected to them,” stated Dr. Scott Allen, MD, PHR Medical Advisor and Co-Director of the Brown University Center for Prisoner Health and Human Rights. “The involvement of health professionals in techniques they should have known would result in severe pain and harm is not only an egregious violation of medical ethics, it is malpractice."

PHR has long contended the techniques authorized in these memos were developed directly from the military’s SERE training program. The memos conclusively show that the legal justifications provided for the interrogation techniques were developed after the decision to proceed with the SERE techniques had already been made at a policy level.

“The timeline seen in these memos supports what other investigations have shown,” said Bradshaw. “A decision to use the SERE techniques was made at the White House level and the OLC memos were written after the fact to provide legal cover. Rather than serving as a shield to protect our values, the law was used as a fig leaf for torture.”

Since 2005, PHR has documented the systematic use of psychological torture by the US during its interrogations of detainees at Guantanamo, in Iraq and Afghanistan, and elsewhere in its groundbreaking reports Break Them Down, Leave No Marks, and Broken Laws, Broken Lives. The organization has repeatedly called for an end to the use of the SERE tactics by US personnel, the dismantling of the Behavioral Science Consultation Teams (BSCT) teams, and a full Congressional investigation of the use of psychological torture by the US Government, among other recommendations. Additionally, PHR has worked to mobilize the health professional community, particularly the professional associations, to adopt strong ethical prohibitions against direct participation in interrogations. PHR was a co-recipient of the 1997 Nobel Peace Prize.

"Good" and "Bad" Faith & the Torture Memos

Astute commenter, Mary, over at Emptywheel/FDL, has a very interesting quick assessment of what is not in these torture memos. And what's not there to rely on opens up a huge gap re possible criminal liability, even by Holder's standards:

Aside and apart from how appalling the memos are, they have a few less emotional issues that emerge after you look at them. [And here they are, linked: August 1, 2002 Bybee/Yoo memo; May 10, 2005 Stephen Bradbury memo #1; May 10, 2005 Stephen Bradbury memo #2; May 30, 2005 Stephen Bradbury memo.]

I’ve mentioned before in connection with other memos released that, despite the assertions that people were “relying” on them in “good faith” that they just simply were not reliance opinions. In large part bc they had no facts (and Bradbury alludes to this too in later day sainthood before he left office and referencing general policy issues v. specific fact settings) and as a result, they just did not meet the standards for reliance.

The above linked memos, by contrast, are the actual “reliance” memos and that brings you to some of the other areas of difficulty.

Mad Dog gets to the first one - because they are more fact recitation dense, the individuals highlighted in the authorization chain and also in the chain of certifying to OLC what they say was going on come to the fore on liability. Brennan, Tenet, and in particular Rizzo, OMS and really revolting physician/psychologists. There you have a lot of issues, including the fact there appear to be some glaring and intentional misrepresenations which may go to invalidating chunks of the opinions EVEN IF you bought into any of it (for example, the mental status information on Zubaydah). You also have the complete lack of due diligence in general by Bybee/Yoo and Bradbury. Their whole fact recitations are premised on “you tell us this” and “you tell us that” and “you tell us that all this is fine and hunky dory” and then gets to the conclusions based on assumptions of veracity of all the underlying info.

Despite a lot of effort to pad out the stats and facts, there’s no fact recitation of contacts with DOJ/FBI persons present during some of the interview or non-CIA input on issues like sleep deprivation etc.

But even if you then put the misrepresentations and lack of due diligence aside you get to one of the major problems.

There’s a lot the opinions don’t discuss and don’t authorize.

What was done with Jamadi - what was done with Qhatani (although non-CIA), what was done with the detainee who froze to death in 2002 - none of those kinds of hypothermia to the point of death or turning blue and beatings to death are authorized by the memos.

Then there are other things that aren’t discussed - like the issue of disappearing someone for years. That’s not something that happens to SERE members and issues of disappearing someone and taking to to a foreign country and isolating them for years etc. (especially when you also have issues like their anxiety for what is happening to their families - etc) Nothing in the memos authorize that, nothing discusses it in a torture context, nothing discusses it in a cumulative context (despite the fact that the disappearances had been going on for years in isolation by the time Bradbury issued his report).

Nothing about dumping someone the way el-Masri was dumped and leaving him to have to try to figure out if he really is crazy as he tries to sell his story - nothing about the divorces and family problems (el-Masri returned to find his wife had divorced him) Nothing, also, about the effect of having family members disappeared on those who remain. It doesn’t have any long term, lasting mental effect for a young child to grow up with a disappeared parent who, when returned, has been a torture victim?

Nothing about threats of rape and harm to family. Nothing about simulated sodomy. Nothing about anal penetrations. Nothing about kidnap by stealth. Nothing about conspiracy to send to places where more intense pressure will be applied (Syria, Morocco, etc.) or about threats to send to such places. Nothing about — a whole long list of things. And very little indeed about how anything they say applies to anyone who is a “mistake” There’s a sideways reference in the cumulative effects memo to what about people who are not “high value” detainees (which would include people who are innocent of being combatants)

There’s a lot more worth attention and discussion, but one thing the release of the memos does is basically take away the “authorized by good faith reliance on OLC opinions” response for many actions, even if you leave the revolting memos untouched. And you put Rizzo in particular right in the track back for specific factual representations to OLC that may very well be incorrect and have been used specifically to elicit an opinion for reliance that is based on false information.

A lot more to think about re accountability and liability for prosecutions. I thank Mary and all the intelligent bloggers and commenters over at FDL, for once again providing the best instant analysis.

No Amnesty for Torture: Sign the Petition for a Special Prosecutor

Sign the Petition! (H/T Tahoebasha and David Swanson)

On April 16, President Obama said he would not prosecute CIA agents who engaged in torture, because President Bush's lawyers told them it was "legal." President Obama also said Attorney General Eric Holder would use taxpayer dollars to defend torturers against lawsuits by torture victims, and to pay all judgments if they lost.

These decisions are intolerable and unacceptable. Torture is utterly immoral and un-American. The U.S. ratified the United Nations Convention Against Torture, which prohibits torture and requires prosecution of torturers. In 1947, the U.S. prosecuted a Japanese officer for waterboarding. No lawyer can "legalize" what is illegal.

Congress must take the following actions:

1. Demand the appointment of a Special Prosecutor by Attorney General Eric Holder for torture, warrantless wiretapping, and other heinous crimes of the Bush Administration.

2. Prohibit the use of any taxpayer dollars to defend government officials who committed such crimes against lawsuits, or to pay for judgments against them.

3. Restore the full protection of the Fourth Amendment (search and seizure) by repealing the Orwellian-named Protect America Act and U.S.A. Patriot Act.

4. Impeach Judge Jay Bybee, the torture memo author who serves on the Court of Appeals for the Ninth Circuit in California.

As my representative in Congress, I urge you to act immediately.

Sign the Petition! Click here!

Gitmo Attys: Stop CIA Destruction of Evidence at "Black Site" Prisons

The following is the text of a letter released by the ACLU, and authored by Guantanamo military and civilian attorneys to Leon Panetta, Director of the CIA, following Panetta's declaration that the CIA was finally shutting down their "Black Site" secret prisons. I think the text of the letter speaks sufficiently for itself. H/T to geomoo at Docudharma.

DEPARTMENT OF DEFENSE
OFFICE OF THE CHIEF DEFENSE COUNSEL
OFFICE OF MILITARY COMMISSIONS

April 13, 2009

Leon E. Panetta
Director, Central Intelligence Agency
Central Intelligence Agency
Washington, DC 20505

RE: REQUEST TO PRESERVE CIA DETENTION FACILITIES USED TO DETAIN HIGH-VALUE DETAINEES—A.K.A. “BLACK SITES”

Dear Mr. Panetta:

We are counsel for Abd Al-Rahim Hussain Mohammed Al-Nashiri. Mr. Al-Nashiri is currently detained at Guantanamo Bay Naval Base. He has been there since September, 2006. From sometime in late 2002 until 2006 he was incarcerated in the secret prison facilities run by the Central Intelligence Agency (CIA).

Your predecessor, General Michael V. Hayden, has admitted that Mr. Al-Nashiri was subjected to water boarding, which is a form of torture, while in the custody of the CIA. According to the publicly released report from the International Committee of the Red Cross (ICRC) which was dated February 14, 2007, and entitled ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody, water boarding was only one of the many forms of torture inflicted on Mr. Al-Nashiri while in the custody of the CIA.

According to that report, while in CIA custody, Mr. Al-Nashiri was also forced to stand with his wrists shackled to a bar in the ceiling for prolonged periods of time—extending to several days— and was threatened with sodomy and with the rape and arrest of his family members. Many of the prisoners the ICRC interviewed did not want their names used in the report. As such, though the ICRC report lists much more cruel, degrading and inhuman treatment, the report is not specific as to what additional treatment was inflicted on Mr. Al-Nashiri while held in the CIA’s “black” sites.

Throughout that time he was not able to communicate with his family, a lawyer or anyone. Effectively the CIA “disappeared” him for four years while it tortured him at will and beyond the eyes of the world.

The CIA and other government agencies also admitted to the purposeful destruction of at least ninety-two video tapes of interrogations and observations of prisoners in its black sites, specifically including the destruction of video tapes of water boarding and other observations of Mr. Al-Nashiri.

Had Mr. Al-Nashiri known that the CIA possessed these video tapes and intended to destroy them, he would have demanded their preservation. However, neither he, his lawyers nor the courts learned of the CIA’s plan until after the tapes had been destroyed and now they are forever gone.

In light of the destruction of video taped evidence of the torture inflicted upon Mr. Al-Nashiri and the newly released report from the ICRC describing still more horrific tortures, we noted with interest your message to CIA personnel on April 9, 2009, in which you stated that the CIA would be “decommissioning” the CIA secret facilities.

Although we welcome your decision to cease the secret detention and mistreatment of prisoners of the United States Government, we are concerned that the CIA intends to actually destroy the sites—including the buildings and the equipment used to interrogate and torture Mr. Al-Nashiri—before Mr. Al-Nashiri has had the opportunity to fully investigate his conditions of confinement. We write to avoid the destruction of more evidence—namely the actual secret facilities themselves.

Mr. Al-Nashiri was charged in the Military Commission with offenses that carried the penalty of death. Although those charges have now been dismissed, we fully expect the government to prosecute Mr. Al-Nashiri and again charge him with offenses that could carry the death penalty. In fact the government is now actively working to determine in what forum he will be prosecuted.

Regardless of the forum in which Mr. Al-Nashiri is tried, evidence of his conditions of confinement will be relevant in assessing the reliability of any of his statements and any statements of other prisoners similarly held that the government plans to use against him. This evidence will also be highly relevant during any sentencing proceeding. It is exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), and he will be entitled to it.

The CIA’s secret prison facilities and the inquisition-like treatment meted out to its prisoners were a tragic, immoral and illegal period in our history that we all hope has come to an end. But its effects are enduring, especially on someone like Mr. Al-Nashiri who, according to the ICRC report, lived through the horror chambers of at least three different secret prisons. Those buildings, interrogation cells, prisoner cells, shackles, water boards and other equipment must be preserved until such time as we have an adequate opportunity to document it and a court can determine the relevance and materiality of this evidence. As a criminal defendant, the Fifth, Sixth and Eighth Amendments to the United States Constitution will entitle him to discovery of exculpatory evidence and this is surely exculpatory evidence.

Therefore, we are requesting that you preserve all the secret sites. By this letter you are now on notice that we will be seeking discovery and inspection of this highly relevant evidence in whatever court Mr. Al-Nashiri finds himself. We have already lost the video tapes which would have allowed a jury to see what happened to Mr. Al-Nashiri in those secret prisons. We cannot lose the remaining tangible evidence of the actual prisons themselves and the instruments of torture within them.

//s//
STEPHEN C. REYES
Lieutenant Commander
JAGC, USN

CHRISTOPHER CAZARES
Captain, USAF

Military Defense Counsel

NANCY HOLLANDER
Freedman Boyd Hollander Goldberg & Ives P.A.
20 First Plaza, Suite 700
Albuquerque, NM 87102

THERESA DUNCAN
Freedman Boyd Hollander Goldberg
& Ives P.A.
20 First Plaza, Suite 700
Albuquerque, NM 87102

RICHARD KAMMEN
Gilroy, Kammen
One Indiana Square, #150
Indianapolis, IN 46204

Civilian Defense Counsel

Cc:
John Rizzo, CIA General Counsel (Acting)
Central Intelligence Agency
Washington, DC 20505

Eric Holder, Attorney General
United States Department of Justice
Office of the Attorney General
950 Pennsylvania Avenue
Washington, D.C. 20530

The White House
ATTN: Greg Craig, Esq., White House Counsel
Office of White House Counsel
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500