David Ignatius: Opinions and Facts

Funny how these things work out! Maybe David Ignatius didn't know his asinine editorial would appear on the same pages as Peter Finn and Joby Warrick's report "Detainee's Harsh Treatment Foiled No Plots" on March 29. Unfortunately for him, it did.

Ignatius' editorial reassures us that Obama's detention and interrogation policies are not some "new left-wing experiment." And he makes it known that if he chooses to, Obama can bring torture back. Ignatius writes:

"In drafting the new policy on interrogation, Obama and his advisers recognized
that there could be extraordinary situations -- say, a suspect with information
about nuclear terrorism -- where the president could decide to waive the
executive order banning harsh techniques. 'Everybody understands that if the
nation faces a severe threat, the president can do what's needed to protect us.
But he has to explain it. The problem with Bush was doing it all in secret,
which leads to abuse,' argues [Jeffrey] Smith."

This is pretty glib. On the same day that his paper declares that torturing Abu Zubaydah produced "no specific leads" and sent federal agencies on a million dollar goose-chase to discover plots fabricated out of torture (including imaginary plots about WMDs!), Ignatius just wants you to know - yes, we could do that again if we wanted to flex some muscle. Even though it doesn't work.

Further substantiating the Finn/Warrick article, Scott Horton quotes David Rose interviewing Bush-era FBI Director Robert Mueller:

"I ask Mueller: So far as he is aware, have any attacks on America been
disrupted thanks to intelligence obtained through what the administration still
calls 'enhanced techniques'? 'I’m really reluctant to answer that,' Mueller
says. He pauses, looks at an aide, and then says quietly, declining to
elaborate: 'I don’t believe that has been the case.'”

And as far as ex-CIA Jeffrey Smith goes, no, dear reader, we're not in hell, it's just that you're feeling a lot of hot air right now. The notion that a CIA that is completely adverse to a public investigation, similar to the one conducted by the Senate Armed Services Committee, would like us to publicily announce our return to torture is crazy. (Remember - this guy helped advise Obama and Craig on these decisions!) And how does this picture square with what we now know of the Obama Administration - that they like the state secrets privilege, and that they have no interest in pursuing investigations into Bushco's misdeeds? You think Obama would step up to podium and tell America he's authorized waterboarding? And that that would make it all better? As Big Tent Democrat notes regarding another torture op-ed, making torture "okay" would be more complicated than simply saying it is so:

"Drum begs the question - since no such vote took place, torture remained
illegal. And of course, if an open vote was held - torture could not have been
'kept out of sight.' The United States would have had to opt out of the UN
Convention on Torture and repeal its codification of the Convention. Would we as
a people have approved of this when forced to say 'we approve of torture?' I do
not know, but the illegality, indeed, the criminality, of what occurred remains
manifest. In our names. The stain will never be removed."

Instead of acknowledging what is found in another section of his own paper, that torture doesn't work, Ignatius takes up (without dispute) Cheney's notion that torture is an important tool. In the process Ignatius uses the imaginary concept of the "ticking time bomb," itself as fear-mongering a device as any Cheney would employ to defend torture. Note to Ignatius - it's no longer 2003, and you don't have to simply entertain Cheney and his ghoulish, false notions. Years behind his own paper, I guess Ignatius didn't see the need to incorporate a few facts into his editorial - namely, that torture doesn't work.

A Rendition Test

(h/t How Appealing) "Detainee's Harsh Treatment Foiled No Plots" at WaPo. This is a profile of the screwy case of Abu Zubaydah and the US government not knowing what to do with him. The story has a number of points of interest but this in particular caught my eye:

"The Palestinian, 38 and now in captivity for more than seven years, had
alleged links with Ahmed Ressam, an al-Qaeda member dubbed the 'Millennium
Bomber' for his plot to bomb Los Angeles International Airport on New Year's Eve
1999. Jordanian officials tied him to terrorist plots to attack a hotel and
Christian holy sites in their country. And he was involved in discussions, after
the Taliban government fell in Afghanistan, to strike back at the United States,
including with attacks on American soil, according to law enforcement and
military sources.

Others in the U.S. government, including CIA officials, fear the
consequences of taking a man into court who was waterboarded on largely false
assumptions, because of the prospect of interrogation methods being revealed in
detail and because of the chance of an acquittal that might set a legal
precedent. Instead, they would prefer to send him to Jordan."

People in the CIA are continuing to advocate rendition to torture, which is what rendition to Jordan is. Here you can read a Human Rights Watch report on the conditions in Jordanian prisons.

That Jordan is off-limits to any proposed rendition program should be obvious from reading Obama's executive orders. Apparently though the desire to perform such renditions lives on. It will be interesting to see if Obama is able to keep his promise not to render to torture. Hopefully he will.

Secret Secrets Are No Fun

Yesterday, I commented at Andy Worthington's blog about the Senate Intelligence Committee's inquiry into the CIA. My comment was that this inquiry is highly unlikely to be effective based on Senator Feinstein's biases alone - she pushed publicly for long-time CIA Operations officer Steve Kappes to take the CIA Director position, despite his ties to the rendition program and God knows what else (he was no.2 in Operations for much of the early Bush years). Feinstein was finally pleased with the actual D/CIA selection when her request that Kappes stay on was granted. So I don't imagine that Feinstein will take a very hard line against some of these CIA operatives, and it seems pretty obvious that she will not apply any broader CIA critique of the sort that I think makes sense. If you're at the top, you take responsibility for what happens at the bottom...that's the way of the world isn't it? Alternatively, you could be taken under the wing of the investigator probing the war crimes your organization (read: YOU) performed. That is also the way of the world (in the US).

Unfortunately, there are a few other reasons why this investigation tastes like weak tea. The United States Senate Armed Services Committee held open hearings for their inquiry into the treatment of detainees in U.S. custody, and later published a report on what they found. Upon publication of this report, Senator Carl Levin appeared on the Rachel Maddow show and encouraged an investigation of the CIA that could lead to "indictments or civil action." You might think we were well on our way.

Unfortunately, that is not the case. Reuters reports some very important (and really cowardly) differences between the Senate Intel. Committee's investigation and the Senate Armed Services Committee's investigation:

"The inquiry, to begin 'soon,' will be conducted in secret, a congressional aide
said, and it is unclear whether findings will be made public. The committee will have the power to subpoena witnesses but 'this is not a witch hunt,' the aide
said." [emphasis supplied]

We may never know! Never know the internal CIA opinion on torture, the way torture was carried out, who oversaw the programs, how it was implemented, what value it actually had (or rather was perceived to have), etc. The Congressional Intelligence Committees were mindblowingly disappointing during the Bush years. And this is just salt in the wound. How dare they call this an investigation when it seems clear that this is just going to be hanging out with their CIA buddies, shooting the sh*t about all the important stuff they used to do. If Carl Levin could publish his report, why can't Senator Feinstein publish hers? I simply do not understand why an agency that admits to waterboarding must be handled with kid gloves.

Politics & Our Crazies

I do my darndest to keep this a single-issue blog, but sometimes there are other issues that make other topics just so tempting. I could basically Twitter my reactions to the financial crisis ("OMG." "WTF??" "PLZ HELP" "MORE KRUGMAN") and my political quarterbacking hasn't paid off for anyone yet. But then there's Michele Bachmann. I have read so many hilarious posts about her today - they have really kept my spirits up. I read Blue Texan and laughed for a long time.

"I'm starting to believe Michelle Bachmann isn't actually a real politician at
all, but instead, an unusually gifted performance artist who's engaged in a
brilliant post-modern parody of an insane wingnut.
Over the weekend, she gave a radio interview to Assrocket, and here's how she describes her blogging and social media outreach as a member of Congress.
'I’m a foreign correspondent on enemy lines and I try to let everyone back here in Minnesota know exactly the nefarious activities that are taking place in Washington.'
This is beyond unhinged. It sounds like a press release from Stormfront."

The full chronicles of Minnesota's Rep can be found all over the blogosphere so I won't go into her amazing repertoire (see BarbinMD instead). I enjoy Ms. Bachmann as I would a talk radio personality. Except that after a moment you realize - oh my god, people actually elected her.

Now, why is this a big deal or at all relevant? Well, the Republicans have quite a crew of attention-grabbing crazies in their stable right now. They say outlandish, at times threatening, things that are not grounded in reality. I'm not sure if this is part of a political game, to basically be an actor and create your own drama around a given issue, or if the pols are truly stupid.

In any case, their ignorance is making it a lot tougher to dig out of the hole Bush made for us. You have Kansas' Senators fear-mongering about the possibility of Guantanamo detainees being transferred to their state. And Dick Cheney, fear-mongering, possibly because it's a hard habit to break. I'm not saying we need to run a glitzy PR campaign for all the innocents in Guantanamo but Good God, we really need to let the public know what the situation is there. These detainees received no fair trial that would exonerate them, and are little known otherwise to Americans. Not much has really changed since Guantanamo opened - "these guys are the worst of the worst!! Right?" There are plenty of people who will try to perpetuate that view (Bachmann, certainly). I think there is a lot of work to do between now and the time when the Obama DoJ finishes their reviews. Judging by their approach so far, I think the Obama DoJ will keep a low-profile on this stuff. I think it's essential that somebody explains who these people are in Guantanamo to the world (and of course, heroically enough, many people are...Andy Worthington, Glenn Greenwald, Digby, Valtin, The Talking Dog, Candace Gorman...these people are on my blogroll for a reason!). I would like to see the Obama Administration be a little more proactive on this front, but in any case, Guantanamo is closing. We need to make this as smooth (and just) as possible.

And Michele Bachmann, just yikes.

Obama & Geneva

AFP:

"On Friday, lawyers for 30 detainees filed a motion accusing the
Obama administration of violating the Geneva Conventions in its
treatment of the estimated 240 prisoners remaining at the controversial prison
camp.

Obama has vowed to close the camp within the next 12 months, and has
ordered individual reviews of the cases against each of the remaining
prisoners." [emphasis suppplied]

Hmm...all is not well at Guantanamo.

Update: Details:

"Lawyers for 30 detainees are seeking 'to end respondent's violation of
certain provision of the Third Geneva Convention,' a court filing obtained by
AFP said Thursday.

The attorneys argue the violations -- such as detention in solitary
confinement for 22 hours a day -- are part of an established policy against
their terror-suspected clients at the remote US naval base in southern
Cuba.

A Pentagon report said last month that conditions for the 240 men who
remain imprisoned at Guantanamo Bay are in line with the Geneva Conventions -- a
review that was harshly criticized by rights groups.

The New York-based Center for Constitutional Rights, which represents
some Guantanamo prisoners, said detainees 'continue to be held in inhumane
conditions that violate US obligations under the Geneva Conventions, the US
Constitution and international human rights law.'"

3,000 Documents, or 3 Torture Memos?

[I hope it is not too tiresome to cross-post my recent diary at TalkLeft here...it is a synthesis of my two previous posts, basically, but I think it is far more coherent]

3,000 Documents, or 3 Torture Memos?

Now, look. I don't want to be pegged as a conspiracy theorist. But I find what the Obama Administration has done over the past few days with regards to some important torture-related issues a little strange.

The first event was the massive withholding of documents pertaining to the interrogation tapes (all 92 of them) that the CIA (criminally) destroyed. The ACLU asked for the documents, and their Blog of Rights covers it:

"Today we were expecting a list of documents pertaining to the contents of the
interrogation tapes destroyed by the CIA. We've been waiting for it all day, and
at 5:20 p.m., we got zilch, save a letter from the DOJ telling the Judge
presiding over the case that they won't turn over anything.
These 3,000 documents include summaries, transcripts, reconstructions and memoranda relating to the destruction of the tapes. Also withheld: the list of witnesses who may have viewed the tapes or had custody of the tapes before their destruction."

This stuck out to me because I remembered that there was a bit of excitement a few weeks ago as to what those documents contained. mcjoan wrote at the time:

"The most encouraging bit from the letter: 'The CIA intends to produce all of the
information requested to the Court and to produce as much information as
possible on the public record to the Plaintiffs.' It would appear that the CIA
under Panetta intends to cooperate fully in this."

Well the exact opposite happened! Here is what we will get: "The CIA will provide these lists to the Court for in camera review on March 26, 2009." It is not mcjoan's fault that the CIA completely lied, but it will be our fault if we continue to believe them.

Following directly upon this news of the massive withholding of evidence from the public (and another promise broken), the Justice Department moved to declassify three torture memos from the Bush-era. These memos will detail the legal framework for torture and the permitted techniques. It will be the abstract version of what is detailed in the 3,000 documents Obama doesn't want you to see about tapes destroyed so you could not see torture in action.

The statute of limitations on torture is pretty short (8 years). And Obama is clearly going to take his time in revealing what happened. The call for action is going to have to come from outside his Administration.

I think it is important to keep track of the steady stream of B.S. on accountability and general detention/interrogation issues from the Obama Administration because there is almost certainly a strategy behind it. Is it a coincidence that news of three new torture memos coming out follows directly on the witholding of 3,000 documents? We know Obama does not care about investigating Bush, and his administration does not seem morally squeamish about using the "you were just following orders" excuse. What is frustrating is that the Obama Administration doesn't mind revealing the legal frameworks for torture - documentation for the record books, I suppose - but they are totally unable to come to grips with the actual torture done to detainees. Let's throw out Binyam's case. Hide the actual evidence. Deny habeas corpus to non-Afghanis that are to this day held at Bagram.

It feels to me that the Obama Administration on the subject of interrogation and detention policy is playing a media game. One well-publicized commendable thing comes on the heels of another in a series of legal actions that defend Bush executive power or deny justice to the victims of torture. The drip drip of information completely controlled by the Obama Administration becomes (hypothetically) our consolation for the lack of criminal prosecutions or a "day in court" for people like Binyam Mohamed.

Well, I don't think the executive branch should be allowed to control our access to such information, or grant such immunity to our Bushco criminals. It wouldn't be a bad thing to have an independent investigation in charge of what is leaked and what is not, who is tried and who is not, what evidence is revealed and what is not. We really don't need something as shameful, embarrassing and criminal as what happened over these past 8 years controlled by White House spin doctors.

The Endless B.S. of the CIA

Reading this article from the ACLU Blog of Rights I was reminded of something. I thought to myself, hey, weren't people excited by the potential upside of the revelation that the CIA had 92 (not two: they forgot the "9," apparently, honest mistake) interrogation tapes? And yeah, they were (from mcjoan):

"The most encouraging bit from the letter: 'The CIA intends to produce all of the information requested to the Court and to produce as much information as possible on the public record to the Plaintiffs.' It would appear that the CIA under Panetta intends to cooperate fully in this."

Yeah...well, that didn't actually happen:

"Today we were expecting a list of documents pertaining to the contents of
the interrogation tapes destroyed by the CIA. We’ve been waiting for it all day,
and at 5:20 p.m., we got zilch, save a letter from the DOJ telling the Judge presiding over the case that they won’t turn over anything.

These 3,000 documents include summaries, transcripts, reconstructions
and memoranda relating to the destruction of the tapes. Also withheld: the list
of witnesses who may have viewed the tapes or had custody of the tapes before
their destruction."

The material will be reviewed, but in private, for the protection of the CIA.

The CIA destroyed evidence of criminal acts, and the evidence of that evidence is being held out of our reach - by the Obama Administration.

I think it is important to keep track of the steady stream of B.S. on accountability and general detention/interrogation issues from the Obama Administration because there is almost certainly a strategy behind it. Is it a coincidence that news of three new torture memos coming out follows directly on the witholding of 3,000 documents? We know Obama does not care about investigating Bush, and his administration does not seem morally squeamish about using the "you were just following orders" excuse. What is frustrating is that the Obama Administration doesn't mind revealing the legal frameworks for torture - documentation for the record books, I suppose - but they are totally unable to come to grips with the actual torture done to detainees. Let's throw out Binyam's case. Hide the actual evidence. Deny habeas corpus to non-Afghanis that are to this day held at Bagram.

This quote has left a great impression on me, from ex-CIA John Gannon regarding the interrogation tapes: "'To a spectator it would look like torture,' he said. 'And torture is wrong.'”

Gannon did not actually view these tapes - this is his speculation. Knowing what we know though, especially about the particular detainees on the tapes, what he says is most likely the case. And that question - who could look at those tapes and think this was the right thing to do? - is not one we seem collectively willing to answer. So I guess it can just happen again. "Oh well."

It is wrong that the CIA destroyed evidence, and it is wrong that they tortured (and tortured and tortured and tortured...). But let's give 'em a pass huh? Hey Mr. Obama - that's not right either.

NYT Editorial on the Rule of Law

Two things in particular I liked here:

"But the break does not always seem complete enough. Even as they dropped
the 'enemy combatant' terminology, Mr. Obama’s lawyers did not seem to rule out
indefinite military detentions for terrorism suspects and their allies. They
drew a definition of association with Al Qaeda that is too broad (simply staying
in a 'safe house,' for example). Worse, they seemed to adopt Mr. Bush’s position
that the “battlefield” against terrorism is the planet. That became the legal
pretext for turning criminal defendants into lifelong military captives."

Well put. And this is important too:

"Mr. Obama also should stop resisting an investigation of Mr. Bush’s policies on
terrorism, state secrets, wiretapping, detention and interrogation. We know he
is struggling with many Bush-created disasters — in the economy, in foreign
policy and on and on. But understanding all that has gone wrong is the only way
to ensure that abuses will truly end. That investigation should be done calmly rather than under the pressure of some new, shocking revelation."

With news that three more torture memos are to be released this week, it seems like it's time to stop being side-tracked by media torture revelation rollercoasters. We must simply begin a comprehensive, no-immunity granted investigation. Because we are running out of time, as Daphne Eviatar points out on the Rachel Maddow show:

"MADDOW: So of the big potential crimes that could be investigated from
the Bush era, which of them would pose or could pose statute of limitations
issues?
EVIATAR: Well, the biggest one really is torture.
There is an eight-year statute of limitations when it comes to prosecuting
torture. And we know and there‘s been strong evidence that there was
torture including waterboarding and all sorts of bizarre humiliations of
detainees at Abu Ghraib and possibly also at Guantanamo Bay starting very early
on in 2002.
Now if you give that eight years, that means by 2010 it could be too late to prosecute."

Yes, as Eviatar points out, the statute of limitations could be extended, and John Conyers is working to do that, but it would be better to operate within existing law than hope that Congress will before 2010 vote to extend the statute of limitations. It would take an immense amount of political capital to do that.

If I were cynical...I would suggest that perhaps this is part of the Obama "avoid investigations" strategy - reveal a few memos at a time, and above all take one's time in everything related to detention and interrogation - a year to close Guantanamo, six months to review interrogation and rendition, etc. Before you know it, 2010 rolls around, and the test of integrity - do you have the will to prosecute? - is now null.

We already know that there is some truly f*ked up stuff in those memos, and that the regulatory processes that would normally prevent a CIA torture program were distorted and ignored by the executive branch. Take this for instance from the Newsweek article quoted above:

"'I now know we were not fully and completely briefed on the CIA program,'
Senate Intelligence Committee chairwoman Dianne Feinstein told NEWSWEEK. A U.S. official disputed the charge, claiming that members of Congress received more
than 30 briefings over the life of the CIA program and that Congressional intel
panels had seen the Red Cross report. But the CIA insisted that the report be
treated as if it had higher than top-secret classification, precluding any
public discussion of its contents."

Feinstein versus anonymous? Talk about having no one to root for. Feinstein says "hey, we were completely deceived! Ain't that something!" and the anonymous official (from which Administration? Obama's?) says that people were briefed in detail. Since the role of these intelligence committees is to provide oversight, it is extremely important to lay blame at their feet as well and make sure that future committees are given the tools and privileges they need to actually conduct oversight and blow whistles when needed. Why is it seemingly not a big deal that the intelligence committees completely sucked at their job? We could have put children in the position of Feinstein and co. and they would've done a better job. So I think the role of the intelligence committees must be reevaluated as well.

That there are serious problems in the way we conducted the "war on terror" during the Bush Administration is now clear as day. Instead of waiting for some sort of critical mass of flashy news leaks from the Obama Administration, we should encourage criminal investigations to begin now. It wouldn't be a bad thing to have an independent investigation in charge of what is leaked and what is not, who is tried and who is not, what evidence is revealed and what is not. We really don't need something as shameful, embarrassing and criminal as what happened over these past 8 years controlled by White House spin doctors.

Update/Correction: I thought these three torture memos were going to be released this week. I was wrong and should've read more carefully. Yeesh. According to Newsweek: "But the White House has sided with Holder. Faced with a court deadline in a Freedom of Information Act lawsuit regarding the memos filed by the ACLU, Justice lawyers asked for a two-week extension 'because the memoranda are being reviewed for possible release.'"

Noble, but the slow-going continues.

Panetta in Pakistan

From Press TV:

"Central Intelligence Agency Chief Leon Panetta has arrived in Islamabad on
a visit to discuss the US strategy on the war against terror.

Panetta held talks with Premier Yousuf Raza Gilani and Lieutenant General
Ahmad Shuja Pasha, the chief of Pakistan's powerful Inter-Services Intelligence
(ISI), on Saturday."

Do you think this was discussed? And how so?

"Torture is routinely used in Pakistan, both to obtain confessions in
criminal cases and against political and ideological opponents. Most acts of
torture are aimed at producing a confession during the course of a criminal
investigation. However, acts of torture by military and intelligence agencies
often are intended for punishment. Torture often follows illegal abductions or
'disappearances' by Pakistan's notorious Inter-Services Intelligence (ISI)
agency or military. Torture is often used to frighten the detainee into
compliance. If the detainee is released, it is usually on the understanding that
if he fails to do what is demanded or expected of him, a further abduction and
torture will follow. In this manner, the victim of custodial abuse can be kept
in a state of fear often for several years. Most often, the threat of torture is
enough to ensure compliance to the demands of the intelligence agencies.

Neither high social standing nor public profile deters the ISI or other
state agencies from perpetrating torture if they deem it in the interest of
'national security'-the relative anonymity of a victim only simplifies matters
for the torturers."

Wilkerson, Bagram, & Guantanamo

This week former SoS Powell's Chief of Staff Lawrence Wilkerson penned a very revealing, and sad, editorial on the situation at Guantanamo and the Bush administration. The key revelation being that some in the Bush Administration, including of course Rumsfeld and Cheney, realized they were carelessly picking up innocents in Afghanistan but chose nonetheless to plunk them down in Guantanamo - and keep them there. Not a big surprise if you know some of the detainees' stories.

As Daphne Eviatar points out, while Obama's team has made some changes, the premise is basically the same - and the results are likely the same as well. There are over 600 people sitting in the prison at Bagram, without the same "privileges" given to those at Guantanamo - they cannot challenge their detention in the US courts, nor are they given the marginal process of a tribunal to determine if they are even combatants. And unlike Guantanamo, Obama has given no indication that he is going to shut down Bagram, a prison with a major expansion in the works.

And in OTHER NEWS, Elena Kagan was just confirmed as Solicitor General. Her belief is that those at Bagram do not deserve due process. Presumably, we could pick up a Muslim on the moon, if someone on Earth suggested (for whatever reason) that we do so, take them to Bagram, and never present them with an opportunity to find out why exactly they are in Afghanistan. The framework that resulted in the detention of innocents remains.

In the liberal heart (well, in many) there is a lot of goodwill, still, toward Obama right now - and justifiably so, as his campaign challenged Bush torture and detention policies. But the reality is that a lot is unclear and change hasn't exactly happened. For example, the Justice Department is arguing that those at Bagram were picked up on the battlefield in Bagram. And they're not saying who at Bagram wasn't picked up in Afghanistan. Meanwhile, Kagan has argued in her confirmation hearing that someone picked up in the Philippines for suspected financing of Al-Qaeda is part of the battlefield - and can be held indefinitely (by the US of course). Annnnd....where are they going to be held, exactly, I ask? The CIA is now allowed to detain people short-term, but not long term. It seems likely to me and within Obama's frameworks that people captured outside Afghanistan could be plunked in Bagram, as before, without habeas corpus. What legal gymnastics can we look forward to that will justify that?

The Obama Administration needs to take steps to ensure that it doesn't create unjust hells for the innocent and Muslim. They haven't even begun to do so. Yes, I know reviews take time...but they are close to creating Guantanamo 2.0.

Update: Also, my diary on the state secrets privilege and Obama PR has now made the TalkLeft reclist. It's not exactly current, but it does demonstrate the ability of the Obama team to talk a crock and scream "national security!!!" if they need to.

Update 2: The kicker is that the US reserves the right to detain with impunity, and when they screw up, refuse responsibility. It's shameful that when we go wrong we don't at least allow people to sue in court.

On the run!

Sorry no postings this week...it's been a busy one, but I will resume this weekend, tapping away at a hopefully much more reliable computer.

I did catch this yesterday though: Darius Rejali "Ice Water and Sweatboxes."

It is interesting to read about the long history of torture, especially as the possibility that torture works or has any redeeming value at all is still a live issue in the media and in the Obama Administration (which is in the middle of a process of figuring out whether torture "works"). Panetta says "The purpose of the review is to, obviously, determine how these interrogation techniques are being used under the Army Field Manual, the quality of the information that's provided, and whether or not in fact these other enhanced efforts produce that kind of information, I don't know. I mean, I don't know the answer to that. And that's why I'm going to participate in that review."

Always reinventing the wheel. And, btw, torture is still against the law...

On Obama's New Detention Memo

There are many people who have written far more interesting comments than I am likely to on the new memo put out by the Obama Administration on their power to detain, but the memo is sufficiently interesting to offer additional comment.

Obama's power to detain is still rigged against the proper, criminal justice oriented treatment of someone who may be a criminal. Point number one. For instance, the "evidence" that the Executive gathers to throw away the key can be very very ambiguous. Especially the "functional evidence" that can be used, like "training with Al-Qaida (as reflected in some cases by staying at Al-Qaida or Taliban safehouses that are regularly used to house militant recruits" (p. 6-7). This is very much a guilt by association type thing, and a worryingly vague standard.

The "did you or did you not train with Al-Qaida" question was one put to Binyam Mohamed. He claims to have trained with Al-Qaida in order to take up arms in the Chechen conflict. Would it be appropriate in that case for us to detain him indefinitely based on that evidence alone? And put him in Bagram, for instance, where no competent tribunal has yet been established to review the status of prisoners? (What provides for detention at Guantanamo will provide for detention at Bagram, surely, and Bagram is the new big playing field for the Executive).

More generally, I question the use of criteria such as "trained with Al-Qaida" as significant enough for indefinite detention. If the CIA retains the right to interrogate "short-term," they will certainly be pressing for the detainee to confess to something like this. As Valtin demonstrates in his writing here, interrogation is not solely for information - it is to produce confessions. And if the detainee has no warning and no rights going into this process, the likelihood that they will produce false confessions, or not realize the weight of false confessions, is increased.

I'm not convinced that the current setup, interrogation-wise, with the CIA holding detainees before transfer for a period of time only defined as "short," and the AFM, including its troubling sections, as its guide, provides anything more than a quick system by which to get as many detainees into jails like Bagram as possible. If the detainee is made helpless, and not duly informed as to on what grounds they are being held, then false confessions are an obvious consequence.

We are still in a weird twilight zone between the US criminal justice system and a gulag. Obama needs to make the picture much clearer.

Reading on the subject from TalkLeft, SCOTUSblog.

Update: A good example of what I am talking about above in terms of "evidence of a functional role" is Candace Gorman's client Mr. Razak Ali. She writes: "Razak Ali was found to be an enemy combatant because he was staying in a guesthouse in Pakistan that was raided and amongst the many men staying at that guesthouse was a man that may or may not have been a member of al-Qaeda. There has never been an allegation that Razak Ali even knew the man nevertheless a determination that the man himself is a member of al-qaeda."

Nonetheless Mr. Ali still sits in Guantanamo. Ms. Gorman sees the new definition as grounds for his release. Unfortunately, this memo only extends to Guantanamo, for now. There are plenty of people in Bagram currently wondering "wtf am I doing here?" with no answer. And Obama has so far been unwilling to provide them habeas corpus. I think the framework for unjustifiable detention remains. The broader reassurance here is sketchy. And I still wonder, based on that information about Razak Ali - "he was staying in a guesthouse in Pakistan...amongst the many men staying at that guesthouse was a man that may or may not have been a member of al-Qaeda" - if he would be up for perma-clink once Guantanamo is closed down. There needs to be a real, fair opportunity on the part of those captured to challenge their detention. Otherwise it will seem as though America is just detaining Muslims with impunity. How that would be good for our "soft power" image is beyond me.

Abu Omar kidnapping case to proceed (in Italy)

Italian prosecutor Armando Spataro is going on with his case under legal circumstances quite different from those in America (well, currently). Spataro is seeking to prosecute 26 Americans and 7 Italians for the kidnapping of Abu Omar, who was flown from Italy to Egypt to be tortured. Amazingly, even though wiretap transcripts of the Italian intelligence agency involved is now excluded as a violation of state secrets, the case will still go on! How can this be?

According to Spataro in an interview set up by Jeff Stein he has "plenty of other evidence to fall back on":

"According to some early news accounts Wednesday, the court's decision was
a 'potentially fatal blow' to the prosecution.

But Spataro, who has also successfully prosecuted some of Italy's top terrorism cases, has plenty of other evidence to fall back on.

After Omar was reported missing, for example, Spataro's investigators
talked to a woman who said she saw men snatch Omar off a Milan street and take
him away in a van.

Using cell phone records, investigators eventually linked the kidnapping to
25 CIA agents and a U.S. Air Force officer at Aviano Air Base, where Omar was
allegedly taken and flown out of the country, according to an official who
identified the plane.

They also raided the home of the CIA's top official in Milan, Robert Seldon
Lady, where they captured computer disks with surveillance photos of
Omar and other evidence related to the case.

Spataro will also be able to call on Italian police who were involved with, or learned of, the 'extraordinary rendition' plan."

Wait a second...are you telling me that this evidence is admissible? That what is public can be brought into the courtroom? It doesn't sound like this will destroy the Italian state either...

It's no surprise that it was the AP that provided the account describing the exclusion of some of the wiretap transcripts as a "potentially fatal blow." After all, in our country, cases involving torture, rendition, or wiretapping are kicked aside for the flimsiest of reasons by the government. Imagine the variety of the bundle of evidence in Mohamed et al v. Jeppesen. And truly, there is so much that is public - flight records, quotes from Boeing employees, etc.

The Italian government is not seeking to throw out Abu Omar's whole case based on "national security." Nor are they apparently daunted by whatever threats the United States might be making to make this go away (as the UK has been). Even the Americans' attorney suggests that despite the excluded evidence, the case against the Americans may continue.

Hopefully, as this case goes on, it will prove doubly embarrassing for the US, triply even. First for the exposure it will give to our shameful rendition to torture program and its ineffectiveness. Secondly because it will show up exactly how cowardly our government is for seeking to dismiss cases involving similar facts outright. As Stephen Grey writes in "Ghost Plane," "If Watergate was about 'follow the money,' the story of renditions was about 'follow the planes'." Except...we are apparently barred from doing that, and worse, the victims of these flights, would be by the request of the government barred from doing that.

Thirdly, it should be embarrassing because those at the very top responsible for authorizing the torture are still getting off scot-free - while the operatives who carried out the nitty-gritty of the rendition of Abu Omar are being put in front of an Italian court. The geniuses that decided torture was the way to go refuse to take responsibility for their actions - and we still refuse the responsibility to hold them accountable. First Abu Omar was a victim of these policies - and now the CIA operatives (such as Bob Lady) are. Bushco seemingly never is. Abu Omar and Bob Lady have both been deeply affected by this case. Neither of them thought it was a particularly good idea to carry out this rendition. Others did. So it goes. But for them to claim they take responsibility is a crock - and that we do not take steps to hold them accountable is also a crock.

I Concur: Uh, WTF?

the talking dog raises an interesting point over at his blog about the new court filing of 5 Guantanamo detainees, including KSM. These men are all (to my knowledge) in Camp 7, the super secret, most secure camp at Guantanamo. Even in the Obama administration, we still don't know much about it. To quote from a write-up on the recent Pentagon review of GITMO (blech):

"Little is known about Camp 7, which is at a secret location at Guantanamo Bay
and off limits even to military attorneys representing the men there. It houses
those detainees who were formerly held at secret CIA prisons."

Verrry mysterious. One of the five filers, Ramzi bin al-Shibh, was the occasion (in Oct 2008) for the very first (and very unconventional) visit of defense attorneys to the Camp. The reason the defense lawyers were visiting was because bin al-Shibh was "being administered a psychotropic drug normally used to treat schizophrenia" and possibly unable to stand trial himself.

So reports suggest that Camp 7 detainees "are experiencing mental and physical health problems" and are, against their will, taking heavy meds - Zubaydah, also at Camp 7, was reportedly taking an anti-psychotic drug. Not only that but they may very well be hunger-striking. And the people in charge of Camp 7 let five of these people sit together and draft a legal document for a court over a period of time in a situation where their lawyers could not even be present. That was accepted by the judge, despite Obama's order to halt the military commissions. NYT:

"It appears that the men wrote the document at meetings they are permitted to
conduct periodically at the detention camp without lawyers."

Yeah, that is definitely, definitely weird. A good catch by the talking dog whose post lays out the true absurdity of it all ("and while we won't let ordinary run of the mill schmucks, many of whom the military itself asserts are innocent, have human contact, the 9-11 perps are allowed to consult with each other?"). And it raises once again the question - WTF is going on at Guantanamo? Has anything changed? And if not, why not? Somehow Guantanamo seems able to avoid the spirit of all of Obama's executive orders. BTW, the 81 page Pentagon Review is here.

Update: From the review (p.47):

"Camp 7 consists of single cells that do not allow for communication between
cells. However, detainees there are allowed to recreate in adjacent, but
separated open-air recreation spaces for at least four hours daily with a
recreation partner. These detainees are also offered special socialization
management opportunities once per week for two hours."

So they yelled out the document across their open-air cells? Or perhaps it was part of their "special socialization management" which is described elsewhere (p.45) as "a program that seeks to maintain detainees’ mental well-being through intellectual stimulation." Writing a confession does sound like it would be an intellectually stimulating experience - useful too!

Torture in the Sunlight

Reading about Binyam Mohamed and his recent interview with the British Mail newspaper, I've been struck by a certain blase quality in some torture reporting. Yesterday the NYTimes hosted a headline about Binyam's torture account that went something like "Detainee Claims Torture by Eminem." The article by Robert Mackey is here.

I was most struck at first by the disrespect and flippancy of the headline. Binyam Mohamed was unjustly abused by the United States of America, a fact which seems not to have sunk in with most American media (though Britain has been rather rocked by it). In Mackey's article, Mohamed's story is pointedly and consistently undermined:

"In an interview with the British newspaper The Mail on Sunday, Binyam Mohamed, who was recently released from the United States detention camp in Guantánamo Bay, Cuba, discussed his treatment while in American custody and renewed his claim that he was tortured.

In the interview, Mr. Mohamed described in detail some of the treatment
he says he endured while being held and interrogated in Pakistan, Morocco and
Afghanistan before being sent to Guantánamo Bay." [emphasis supplied]

Uh, yes, Mohamed does claim that - do you wonder why? On one hand, I guess you can't blame Mackey - it may very well be part of journalistic ethics to emphasize that this is Binyam Mohamed's side of the story. But Binyam Mohamed wasn't abducted by UFOs - he was abducted by the government of the United States. He was abducted by Jeppesen. Yet our government - under Bush and Obama - systematically blocks his ability to have official documentation of this torture aired in court. British high court judges suppressed the documentation (by US request, or by UK requested US request...that's another story) which they said amounted to evidence of torture - documentation based on the admissions of American officials! We do, in fact, know he was tortured.

My gripe may seem a little incoherent, but Mackey's total lack of effort to demonstrate that Binyam Mohamed isn't just a crazy man with a grudge - he is demonstrably a victim of torture and abuse by the US government - pisses me off. What the ex-detainees of our secret prisons and Guantanamo have been saying isn't just gibberish designed to undermine the US government - it is an account of the way our government actually worked. And our government should have the guts to expose to the broader public the documents that bear proof of the abuse. While our media should likewise have the guts to continue prying, peeking, and investigating, with a committment to the sunlight and shedding always more.

Senate Select Committee Launches CIA Investigation

Hooray! The Senate Select Committee has decided to investigate the CIA. Applause here is warranted since it wasn't too long ago that Senator Feinstein was offering the CIA reassurance and minimizing their role in Bush-era terror policy. To quote her from January: "They (the CIA) carry out orders and the orders come from the (National Security Council) and the White House, so there's not a lot of policy debate that goes on there." Well, I guess we'll find out how true that is.

I have written previously about why an inquiry into the CIA is necessary. If you just read through the Senate Armed Services Committee's report on the treatment of detainees, you find many instance in which the CIA plays a role in pushing policy forward (this post from January provides all the examples). The CIA in this report "seeks policy approval" and "requests" approval for controversial tactics. This is not a passive agency. They appear to play a very active role in the development of these torture policies, and were active in helping other agencies adopt such policies (Invictus has a post on the torture meeting convened at GITMO with the involvement of the CIA as an authority on using torture in interrogations).

I am also interested in finding out more about the culture at the CIA at this time. Matthew Cole in Blowback describes how more or less renditions were "in." Of course the CIA should be willing to "take risks" - but the rendition of Abu Omar was so bungled that it resulted in more than two dozen American CIA officials tried (in absentia) in Italy and a big wrench in Italian-American relations. One of the officials involved, Bob Lady, claims that it would've been much more effective to just continue classic spy work on Abu Omar, then arrest and prosecute - they were only weeks away from having enough evidence to do so. But uh, why not ship someone to Egypt to be tortured instead? Aggressively ignoring the rule of law, as we see quite clearly now, only hurts our cause and energizes terrorists worldwide.

And aggressively ignoring the rule of law was apparently the CIA's style. Funny how we can argue with entire agencies that collectively decided, in the course of two or three years, to completely ignore international law and basic sense - that torture is wrong. We entertain the premise that they might have been right or at least well-meaning when implementing torture policies. We can go on and on and waver on prosecutions and so forth. But the CIA's simple destruction of evidence - the 92 torture tapes - is a bridge too far. It's unclear as to where the CIA found the authority to destroy evidence. Reports suggest that Bush didn't know they were going to do it - but he never knew anything so that means nothing. Apparently Harriet Miers told the CIA not to destroy the tapes.

But as we go through each personal excuse, each justification, each instance of plausible deniability, we need to also continue to press forward with broad investigations into wrongdoing. We need to expose those who supported this lawlessness and tinker with the structure of these agencies (or at the very least tinker - I know some would prefer to abolish the CIA, period). It still boggles my mind that the CIA could torture again at the drop of a hat - request permission from the President and legal authorization from the AG, and you've got yourself all it takes to turn up the music, put someone in a stress position, and carry out torture. This type of structure needs to be studied and changed, and the investigation format can accomplish this even if it is too lame to seek prosecutions.

We have to come to grips with the answers to a lot of questions over the next few years. Hopefully this investigation of the CIA will be a forum that accepts those questions honestly and seeks answers.

The Post-Release Treatment of Guantanamo Detainees

Something to keep an eye on, since the process of releasing and moving Guantanamo detainees is one of those things that could potentially slow down the actual closure of the prison. It has already, after all, as figuring out what to do with the detainees is what's responsible for the allocation of a year to shut down the prison. The Chicago Tribune has an excellent and interesting article on the attempt of one former Gitmo detainee to return to a normal (and terror-free) life:

"Umar Abdullah al-Kunduzi, a trained militant who spent almost six years in the
U.S. detention center in Guantanamo Bay, says he is trying to live a straight life.

He has no job. He has only the money his brother occasionally sends him.
During an interview, he wanted to know how much he could earn selling his
laptop, a gift from his brother, who lives outside Afghanistan. No one will hire
him, and a stint in Guantanamo—plus the fact that he has plenty of Al Qaeda and
Taliban associates—does not bode well for future job prospects.

Kunduzi, who hid out for a month with Al Qaeda militants in the Tora Bora
mountains after the Sept. 11 attacks, was returned to Afghanistan in December
2007. After four months, he was freed when an Afghan judicial commission ruled
he no longer posed any danger, and now his old associates want him back.

'When I say I am vulnerable, understand this—the policy of those on the
other side is, "You're with me, or you're against me,"' said Kunduzi, 30, who
spoke to the Tribune in a Kabul restaurant. 'One day, finally, they will come
after me. That's why I want to disappear.'"

And although we are eager to expand our military efforts in Afghanistan, apparently we haven't done much to help them set up an effective re-integration program for the detainees they have received:

"More than a dozen former detainees who have spoken to the Tribune in
recent years say they received nothing after leaving Guantanamo but a large gym
bag and, in some cases, toiletries, a change of clothes and $10 in taxi or bus
fare home.

In Afghanistan, unlike in countries such as Saudi Arabia, there is no
program to integrate detainees back into society. At first, the freed detainees
were simply flown back and released after signing a pledge to the new
government. They were allowed to go back to their villages, many of which are
now under Taliban control.

In the past 18 months, 40 detainees once considered dangerous, such as
Kunduzi, have been sent home. They were flown to the United States' Bagram Air
Base and handed over to the Afghan army, which brought them to a newly fortified
prison wing of the Pul-i-Charkhi prison near Kabul.

At first, hearings on their future were held behind closed doors. After
complaints, a new commission was set up and has so far released all but five
detainees.

But no one seems to know where they are. The National Independent
Commission for Peace and Consolidation of Afghanistan, which is working to
reconcile former Taliban members with the Afghan government and has vouched for
Guantanamo detainees, knows of only 63 in the country.

'We do not have any system to observe people coming back,' commission
spokesman Sayed Sharif Yousofy said.

The country's intelligence agency, the National Directorate of Security, is
tasked with tracking the detainees, but the directorate spokesman repeatedly
declined to comment, saying he did not have the information.

Some detainees probably returned to the Taliban fold. The Pentagon in
January said that 61 former detainees from Guantanamo may have returned to
terrorist activities but declined to name them. Security experts have questioned
that number. So far, seven have been publicly identified, including a top Al
Qaeda leader in Yemen and three Afghans killed in fighting."

Well, holy sh*t. No wonder some of the detainees returned to the "Taliban fold." If there is no coordinated effort to monitor them and help them reenter society, what would you expect them to do?

President Obama might want to work on the government in Afghanistan to provide more assistance to the detainees released from Guantanamo. Unless Obama is interested in giving ammunition to right wing critics like Dick Cheney. Guantanamo has ruined lives - it's important to ensure that we provide or otherwise work with other countries to provide the detainees of Guantanamo the tools they need to live peacefully and in freedom again.

NINETY-TWO TAPES?

We find out today that the CIA not only (illegally) destroyed tapes of its "enhanced interrogations" ...but destroyed NINETY-TWO of them.

92 tapes!

AP:

"'The CIA can now identify the number of videotapes that were destroyed,'
said the letter by Acting U.S. Attorney Lev Dassin. 'Ninety two videotapes were
destroyed.'

The tapes became a contentious issue in the trial of Sept. 11
conspirator Zacarias Moussaoui, after prosecutors initially claimed no such
recordings existed, then acknowledged two videotapes and one audiotape had been
made."

More:

"...the CIA is now gathering more details for the lawsuit, including a list
of the destroyed records, any secondary accounts that describe the destroyed
contents, and the identities of those who may have viewed or possessed the
recordings before they were destroyed.

But the lawyers also note that some of that information may be
classified, such as the names of CIA personnel that viewed the tapes.

'The CIA intends to produce all of the information requested to the
court and to produce as much information as possible on the public record to the
plaintiffs,' states the letter."

Ninety-two tapes of stuff that was so rough it had to be destroyed by the CIA to protect the CIA. Ninety-two tapes. I do wonder who watched these tapes, what they saw, how they justified it, how they found it to be in line with the law (even the very distorted version of the law they were given by the Bush DoJ) and if they actually found it to be over the line or not. Who knows what the tapes showed? Interrogators actually breaking even the Yoo/Bybee interpretation of the law? Methods that might've begged the question to a sentient being - hey, this kind of looks like it is probably illegal according to the law? You would think the CIA lawyers would know there are laws, like the Convention Against Torture, laws and treaties that they might actually want to read before blindly swallowing whatever the Bush DoJ told them? Professional ethics, somethin' like that?

As ex-CIA John Gannon said in reference to the tapes:

"Mr. Gannon said he thought the tapes became such an issue because they
would have settled the legal debate over the harsh methods.

'To a spectator it would look like torture,' he said. 'And torture
is wrong.'”

If this is true, how the hell did common sense fly so completely out the window at CIA?

I think the enormity of the tape destruction basically settles the question as to whether there should be a Congressional investigation of the CIA's role, as there was the DoD's. I have called for such an investigation in the past. The Senate Intelligence Committee is planning such an investigation now.

You have to wonder - 92 tapes of harsh interrogations of two detainees. What the hell was on those tapes? Nothing, apparently, that they wanted to ever see the light of day in a courtroom (international or otherwise)!

It seems to me these tapes may've constituted evidence of the extent of the bad faith that went into designing and following the Bush torture laws. We deserve to hear from those who watched the tapes exactly what they contained - and their reactions (along with official CIA reactions) to this content. 92 tapes. That is a lot of tape...

(h/t How Appealing)

Anti-Rendition Activism in North Carolina

from WRAL/AP:

"Activists want anti-rendition pledge from airport

RALEIGH, N.C. — Stop Torture Now is bringing a retired military officer to help convince the Johnston County Board of Commissioners to sign an anti-rendition pledge.

The group says Aero Contractors, which is based at the county's airport, flies detainees to secret prisons and interrogations. Floyd McGurk, who served two tours in Vietnam, will speak at Monday's commissioner meeting about how torture endangers American troops.

Four of McGurk's family members are currently serving in Iraq.

The group's proposed pledge would ban Aero from public facilities at the airport and
refer allegations of its involvement in kidnapping and torture to law
enforcement agencies."

Interesting pushback against the idea that has emerged in the brains of our businesses - "we can do whatever we want as long as the government tell us to." Telco amnesty, invoking the state secrets privilege in Mohamed et. al. v Jeppesen...good on Stop Torture Now for reminding businesses that they follow the same laws as the rest of us.