Back To Our Senses

Obama's First (?) Rendition

2009-08-11T13:23:00.002-04:00

Scott Horton has the disturbing details over at HuffPo.

"[Raymond] Azar alleges that on arriving at Bagram he was shackled to a chair in an office for seven hours and not allowed to move. Then in the midst of a cold rainstorm he was taken to an unheated metal shipping container converted to use as a cell. The cell was brightly lit and although the outside temperature approached freezing, he was given only a thin blanket. He also claims that he was not permitted to sleep during his confinement at Bagram, which lasted over a day. Then he was told he was going to take a plane trip. His handlers would not tell him where he was going. He feared he was being dragged to Guantanamo, there to be 'disappeared' and tortured. How else, he thought, could he explain the absence of Afghan authorities, the hooding and other techniques?"

Other allegations include threats to Azar's family and nude photography.

In the past months, since Inauguration, President Obama and his team have built a framework for this type of activity. They've embraced the abuse of the state secrets privilege to cover up Bush crimes. Well, guess what - it will work equally well to help Obama cover up whatever it is he wants to do.

Ya Think?

2009-07-09T10:08:00.002-04:00

New York Times:

WASHINGTON — The director of the Central Intelligence Agency,Leon E. Panetta, has told the House Intelligence Committee in closed-door testimony that the C.I.A. concealed “significant actions” from Congress from 2001 until late last month, seven Democratic committee members said.

Now, if I have to guess how this will be received by the right-wing nutosphere I would guess that this makes Panetta an evil librul traitor. I think the "vindicates Nancy Pelosi" (at least at some level) is going to be missed.

Politico says that the CIA is contesting the truth of what is in the letter. The brain, it aches.

Hopefully further exposure of the CIA's lies will create more pressure on the Administration to release important documents relating to the torture regime. At the moment it is obvious that there will be no public/citizen's dialogue on what we did to detainees and how we can effectively combat terrorism without becoming utter barbarians. President Obama is content to develop a "detention post-acquittal" policy behind closed doors, while his DoJ continues to abuse the state secrets privilege. Maybe establishing the abuse of executive power and utter of the Bush years will incite greater public interest in the lies and excessive executive powers that remain.

How Obama Deep-Sixed a Truth Commission

2009-06-16T15:06:00.002-04:00

Man, I really wish I voted for someone that would deliver transparency and accountability. Apparently, I did not.

I saw this over at TPM Cafe posted by rumpole. Here's the link. Froomkin quotes Jane Mayer:

"'I'm not big on commissions,' Panetta told me. 'On the other hand, I could see that it might make some sense, frankly, to appoint a high-level commission, with somebody like Sandra Day O'Connor, Lee Hamilton—people like that.' The appeal was that Obama could delegate to others the legal problems stemming from Bush Administration actions, allowing him to focus on his ambitious political agenda. 'In the discussion phase'—early in the spring, before Obama decided the issue—'I was for it,' Panetta said. 'Because every time a question came up, you could basically say, "The commission, hopefully, is looking at this."' But by late April Obama had vetoed the idea, fearing that it would look vindictive and, possibly, inflame his predecessor. 'It was the President who basically said, "If I do this, it will look like I'm trying to go after Cheney and Bush,"' Panetta said. 'He just didn't think it made sense. And then everybody kind of backed away from it.'"

Ok, first of all, Cheney is inflamed. And he is calling for the further declassification of documents - IOW, a Truth Commission.

Accountability for torture, equality for gays - Obama is turning out to be timid. A weenie.

You'll Never Get Ahead...

2009-06-07T11:49:00.010-04:00

From Truthdig/LATimes:

"Reporting from Washington -- President Obama's pick to be the intelligence chief at the Department of Homeland Security withdrew from consideration on Friday amid signs that he could face opposition on Capitol Hill over his role in the CIA's interrogation of terrorism suspects."

...

Mudd became the latest candidate for a high-level intelligence position to be forced to withdraw after being tied to the CIA's use of severe methods to interrogate terrorism suspects.

From 2002 to 2005, Mudd served as deputy director of the CIA's counter-terrorism center, a unit that swelled in size in the aftermath of the Sept. 11 attacks and was responsible for running the agency's secret overseas prisons."

At least we know torturing doesn't get you ahead in the job world (except when it does - courtesy of Militarytracy). But you do get to keep your old job and duck questions about what you did in the past - or work your way into another high-level, confirmation unrequired position, like John Brennan did.

At this point, it's obvious that we would all be better served by having a Truth Commission establish the genesis and implementation of Bush's torture programs. I don't really weep here for Mudd and his career trajectory, but I do think it is absurd that all our political system has done so far in response to our past torturing is create a bump in the road for anyone interested in civil career advancement. It is a pathetic injustice to all involved - from Binyam Mohamed to Mudd and the American people in general.

And a final question - why does President Obama keep selecting these guys? Especially after the example of John Brennan, why did he think Mudd would squeak through? I would note that Mudd's role at the CTC is not entirely clear - his FBI biography (h/t Laura Rozen) suggests as Deputy Director of the CTC he "was responsible for overseeing operational, analytical, and support programs in the Center" and also that he was in the CTC "the Deputy Director of the Office of Terrorism Analysis, the analytic arm of the CTC." I would generally be more creeped out by people involved in Operations.

But the interesting aspect of Mudd's withdrawal from consideration is that it raises questions about how the analytical branches influenced interrogations - from an AP Report: "Mudd's analysts used information obtained through harsh interrogations, and the official said that Mudd is likely to be questioned on whether the analysis branch pressured interrogators in the field to use harsher methods because they believed detainees were not telling the truth." This hasn't been much talked about, and apparently it won't be (remember, part of Brennan's defense - or defenses made for him - was that he was in analysis, not operations).

In any case, Mudd's relationship to torture policy has been established. How cowardly is it that our government selects people with these backgrounds for new positions, allows them close to a confirmation hearing at which point they withdraw, go back into the part of the government they came from, and no one says boo. I guess the Senate Intelligence Committee really isn't all that eager nor interested in the answers to the questions they were intending to ask.

Um, Duh.

2009-05-21T12:13:00.002-04:00

Specter Says Record Needed of Future CIA Briefings

"In a letter Thursday to the White House and leaders of congressional intelligence committees, Specter says this would prevent disputes later -- like the recent one over what and when House SpeakerNancy Pelosi was told about severe interrogation methods used on terrorism detainees.
He says if the dispute involves classified materials, the transcript could be reviewed by top members of the intelligence committees or even a court. Specter is a former chair of the Senate Intelligence Committee."

I thought that was pretty obvious. I am hoping that one product of the Bush mess is that more stringent oversight will be conducted over the CIA by Congress. dday at Hullabaloo has a great post about why that oversight is needed - members of both parties during the Bush years have said the CIA lied.

Another example of the "CIA lied" genre - Jane Harman regarding the videotape destruction:

"Lawmakers were initially told only of the existence of a single tape showing Mr. Zubaydah, said California Rep. Jane Harman, who was the top Democrat on the House Intelligence Committee in 2003, when she warned the CIA not to destroy that tape. A committee spokeswoman said it was told in the past year that there were 92 tapes, after Rep. Harman departed the committee.
'My jaw fell through the floor,' Rep. Harman said. 'My impression was that this was a videotape. I never imagined it would be 92 videotapes.' The CIA misled her, she said, and 'it may also be a violation of law.'" [emphasis supplied]

I don't know who is doing the briefing over at the CIA, and who is telling them what to brief Congress about, but that person(s) should be in a little trouble right now. They would be if we were "looking back," anyway.

What They Want

2009-05-19T13:15:00.003-04:00

From Howard Bashman over at How Appealing:

"Amid Queries, CIA Worries About Future"

"For example, the 'attention grasp,' described as 'grasping the individual with both hands, one hand on either side of the collar,' is one of the 13 techniques employed in the past by the CIA and is listed in the Justice Department's May 10, 2005, memo. It is barred under the Field Manual. Unlike harsher techniques on the list, such as nudity, dietary control, sleep deprivation and waterboarding, CIA officials say they want the authority to use the attention grasp without going back to Washington for approval."

Here is another description of the "attention grasp," in official SERE language, describing its purpose, via Tom Burghardt:

"10. ATTENTION GRASP: Typical conditions for application: to startle, to instill fear, apprehension, and humiliation or cause insult."

Ok. So the CIA apparently didn't get the memo that even new military commissions will, in Obama's own words,

"ensure that: First, statements that have been obtained from detainees using cruel, inhuman and degrading interrogation methods will no longer be admitted as evidence at trial."

So the very source of the "attention grasp," SERE, describes the point of the "attention grasp" as to insult and humiliate. Obviously the opposite of what is permissible in federal courts, and even in military commissions, Obama style.

Doesn't anyone in the CIA see the problem here?

I suppose you could do some legal gymnastics and try to explain how the "attention grasp" is not cruel and degrading. But that's a road we've been down - and inching closer and closer to Bybee, Yoo, and Bradbury is not pretty.

Regarding Pelosi-Panetta

2009-05-19T11:53:00.002-04:00

Mary McCarthy, per WaPo:

"In addition to CIA misrepresentations at the session last summer, McCarthy told the friends, a senior agency official failed to provide a full account of the CIA's detainee-treatment policy at a closed hearing of the House intelligence committee in February 2005, under questioning by Rep. Jane Harman (Calif.), the senior Democrat."

If the subject is truth, it's hard to guess why anyone would be in the CIA's corner.

Hi again, by the way.

Liars Lining Up

2009-04-28T12:24:00.003-04:00

BTD at TalkLeft critiques Richard Cohen today. I wrote a comment there that warrants a separate post here, methinks, especially as the dialogue on torture is currently revisiting misleading past statements from "agents in the field" on the effectiveness of interrogations (see Marcy Wheeler, and the NYT). So if you will indulge:

*****
First of all, it is pretty much a complete untruth that Obama has "waffled over" whether or not to prosecute CIA interrogators. He has said, Panetta has said, and DNI Blair has said they WILL NOT. But for some reason columnists like Cohen and Ignatius like to ignore that and try to enflame the nation. Here Cohen is standing with Mike Huckabee for God's sakes.

FURTHERMORE, it never ceases to amaze me that MSM writers suck up to disenchanted spies. They seem to take any change to intelligence policy quite personally. Mr. Cohen seems to regard himself as an "agent in the field."

His column perfectly displays what actual ex-CIA Mel Goodman wrote about recently in CIA & Washington Post: Joined at the Hip. To quote:

"Surely senior journalists from the mainstream media must understand that reliance on anonymous CIA clandestine sources is neither good reporting nor professional journalism. Many of these 'anonymous sources' almost certainly are former and current CIA officials seeking to protect themselves. George Tenet, John McLaughlin, and John Brennan are individuals who fit that description."

Also, you [BTD] are right, Cohen is pretty dim:

"If the threat of torture works -- if it has worked at least once -- then it
follows that torture itself would work. Some in the intelligence field,
including a former CIA director, say it does, and I assume they say this on the
basis of evidence."

Um. OK. One of nice things about some of the recent revelations is that it has shown up even the "good spies" to be deceivers of the public. So for example, John Kiriakou, who came out to ABC with his waterboarding accounts and how awesome it was and how Zubaydah's torture saved so many lives. Basically none of that was true. All this has been covered recently. But I guess Cohen missed it.

There's simply no reason to believe a demonstrable war criminal is telling you the truth. I mean, c'mon.
*****

That to me is the kicker. When someone is that deep in sh*t as serious as a war crime, do you really think they're going to tell you the truth? Especially if they work for the CIA? Not to say that everyone in the CIA is dishonest, but it is rarely the business of the CIA to openly discuss their operations. That is why we have Congressional Oversight Committees. That is why we should have a Truth Commission.

Now Spencer Ackerman paints a picture over at Firedoglake that is even more muddled than what we have now. He says:

"That makes me wonder about the integrity of 'accounts from the field.' We know
from George Tenet's 'guidelines' from January 28, 2003, that every time an "enhanced technique" is used, there has to be a record of it. But this is 2002. It's possible that a) accounts of Abu Zubaydah's waterboarding are contradictory or b) accounts are incomplete or c) accounts are incorrect. We have reason
to suspect from Ali Soufan that the CIA is conflicted about torturing Abu
Zubaydah and that his pre-torture interrogation worked. It's at least possible,
then, that someone could have written or otherwise informed Kiriakou that Abu
Zubaydah "broke" after being subjected to the waterboard once."

If the question is, did Kiriakou intend to lie or not, you are faced with a few situations. If he only read the first page of the Zubaydah interrogation report, he would certainly be deceiving us to tell us Zubaydah "broke" after 35 seconds and that "from that day on, he answered every question" and disrupted so many attacks. But as it turned out, according to WaPo, nothing was disrupted from waterboarding Zubaydah. From his language, it does not exactly sound like Kiriakou was reading an incomplete account of the interrogation, but then what is the explanation for the discrepancy?

Spencer suggests three possible explanations, which are contradictory accounts, incomplete accounts, or incorrect accounts from the field. I am not sure if the problem was the "accounts from the field." I have a few explanations for Kiriakou's pretty offkey whistleblowing:

A. Only later did counterterrorism officials realize the waterboarding didn't work (in which case Kiriakou jumped the gun by going on TV and abused his authority in telling us that waterboarding did work - not exactly a liar, but not a great showing).

B. Kiriakou was being lied to by his superiors (as Marcy/Spencer suggest is possible) OR underlings (which is one of the scariest options - how dysfunctional an agency is that? How does torturing protect our national security if it creates situations of deliberate internal misinformation? We have 100 spies on the payroll, but only 2 of them actually know what's going on???)

C. Kiriakou was simply lying.

Well...Kiriakou may still be lying. Laura Rozen writes the following:

"Following the release this month of U.S. government memos showing Zubaydah had been waterboarded 83 times in one month, and not one time as Kiriakou had said,
ABC News posted an update to its 2007 interview with Kiriakou in which
he responded: 'When I spoke to ABC News in December 2007 I was aware of Abu
Zubaydah being water boarded on one occasion. It was after this one occasion
that he revealed information related to a planned terrorist attack. As I said in
the original interview, my information was second-hand. I never participated in
the use of enhanced techniques on Abu Zubaydah or on any other prisoner, nor did
I witness the use of such techniques.'"

Again - the Washington Post suggests that Zubaydah disrupted exactly zero terrorist attacks. Note that Kiriakou doesn't say in this statement that the "information related to a planned terrorist attack" was relevant, important, or even accurate.

As I said - There's simply no reason to believe a demonstrable war criminal is telling you the truth. I mean, c'mon.

If By Work You Mean Fail

2009-04-23T10:51:00.004-04:00

Now that the memos are out, people are speaking out and pushing back against Cheney's torture works B.S. This editorial is one of the most powerful anti-torture pieces I've read recently. Via Attaturk:

"FOR seven years I have remained silent about the false claims magnifying the effectiveness of the so-called enhanced interrogation techniques like waterboarding. I have spoken only in closed government hearings, as these matters were classified. But the release last week of four Justice Department memos on interrogations allows me to shed light on the story, and on some of the lessons to be learned.
...
It is inaccurate, however, to say that Abu Zubaydah had been uncooperative. Along with another F.B.I. agent, and with several C.I.A. officers present, I questioned him from March to June 2002, before the harsh techniques were introduced later in August. Under traditional interrogation methods, he provided us with important actionable intelligence.

We discovered, for example, that Khalid Shaikh Mohammed was the
mastermind of the 9/11 attacks. Abu Zubaydah also told us about Jose Padilla,
the so-called dirty bomber. This experience fit what I had found throughout my
counterterrorism career: traditional interrogation techniques are successful in
identifying operatives, uncovering plots and saving lives.

There was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics. In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions — all of which are still classified. The short sightedness behind the use of these techniques ignored the unreliability of the methods, the nature of the threat, the mentality and modus operandi of the terrorists, and due process."

Wow, note the emphasis on DUE PROCESS. More from Ali Soufan (the interrogator/writer of the editorial):

"One of the worst consequences of the use of these harsh techniques was that it reintroduced the so-called Chinese wall between the C.I.A. and F.B.I., similar to the communications obstacles that prevented us from working together to stop the 9/11 attacks. Because the bureau would not employ these problematic techniques, our agents who knew the most about the terrorists could have no part in the investigation. An F.B.I. colleague of mine who knew more about Khalid Shaikh Mohammed than anyone in the government was not allowed to speak to him. [emphasis supplied]"

When you discover this level of incompetency, it becomes a little hard to argue that Bush kept us safe.

The writer makes a final point - that contractors, as opposed to CIA officers, requested that "alternative techniques" be used. It's still on the hands of the CIA brass that these techniques were used, but if true, it poses some interesting questions. Who was in charge of overseeing and regulating these contractors? Why were the contractors given so much authority? Prosecuting contractors would be easier than prosecuting government officials - right now, a torture suit against CACI is going forward - though CACI tried to have it dismissed, twice.

How Hard Is This?

2009-04-22T13:31:00.003-04:00

David Ignatius is having a hard time:

"Put yourself in the shoes of the people who were asked to interrogate
al-Qaeda prisoners in 2002. One former officer told me he declined the job, not
because he thought the program was wrong but because he knew it would blow up.
'We all knew the political wind would change eventually,' he recalled. Other
officers who didn't make that cynical but correct calculation are now 'broken
and bewildered,' says the former operative.

For a taste of what's ahead, recall the chilling effects of past CIA
scandals. In 1995, then-Director John Deutch ordered a 'scrub' of the agency's
assets after revelations of past links to Guatemalan death squads. Officers were
told they shouldn't jettison sources who had provided truly valuable
intelligence. But the practical message, recalls one former division chief, was:
'Don't deal with assets who could pose political risks.' A similar signal is
being sent now, he warns."

How hard is this? What does a scrub of the CIA's Guatemalan contacts have to do with this one simple message: DO NOT TORTURE. That's all. That's the only messsage. DO NOT TORTURE AND DO NOT SEND PEOPLE TO BE TORTURED.

And I wonder why these officers involved with torture interrogations are broken and bewildered. Is it perhaps because they...tortured?

But David Ignatius has a point. No, not a good point, just that he structured his entire editorial to get to his point - that conservative elements in the CIA must be constantly fellated and that a commission that reviews Bushco policy should be done "behind closed doors" and prepare a tidy little report to us. Because nothing will discourage us from going through this entire mess again like a secret commission.

There was not one single source in his editorial that approved of Obama's recent activies - that is, unless you count the masses quoted in David Ignatius' piece as "hooting and hollering" during Obama's speech. But apparently they don't count.

IMO, the best way to raise the CIA's morale is to ensure we never put them in a position where they commit war crimes again. Hopefully that is what we are on the way to doing. I am sure there are people in the CIA that understand that.

Update: From Jeff Stein, the crushing low morale:

"Fans began lining up four hours before Obama's con --, er, speech, Meek reported
late Tuesday afternoon in the D.C. bureau's always entertaining "Mouth of the Potomac" blog.

'Agency workers began lining up at noon for a chance to see the rock
star of public life. And when Obama entered the room, a cheer exploded that was
as shrill and ear-piercing as it was long: about 80 seconds. Think the Beatles,
Michael Jackson, Mick and the boys. Definitely not George W. Bush.'"

You Don't Get to Plead Ignorance

2009-04-22T09:26:00.002-04:00

Scott Shane and Mark Mazzetti have an astonishing story today at NYT. Apparently these bozos really didn't know what they were doing:

"WASHINGTON — The program began with Central Intelligence Agency leaders in the grip of an alluring idea: They could get tough in terrorist interrogations
without risking legal trouble by adopting a set of methods used on Americans
during military training. How could that be torture?

In a series of high-level meetings in 2002, without a single dissent from cabinet members or lawmakers, the United States for the first time officially embraced the brutal methods of interrogation it had always condemned.

This extraordinary consensus was possible, an examination by The New
York Times shows, largely because no one involved — not the top two C.I.A.
officials who were pushing the program, not the senior aides to President George
W. Bush, not the leaders of the Senate and House Intelligence Committees —
investigated the gruesome origins of the techniques they were approving with
little debate."

Here's a specific example:

"Even George J. Tenet, the C.I.A. director who insisted that the agency had thoroughly researched its proposal and pressed it on other officials, did not examine the history of the most shocking method, the near-drowning technique known as waterboarding.

The top officials he briefed did not learn that waterboarding had been
prosecuted by the United States in war-crimes trials after World War II and was
a well-documented favorite of despotic governments since the Spanish
Inquisition; one waterboard used under Pol Pot was even on display at the genocide museum in Cambodia."

Now, I really don't buy this "oh my god, we had no idea simulated drowning was torture!" idea. And isn't there someone in the CIA whose job it is to like...know stuff? There was no one in Operations who had some understanding of what constitutes torture? I find that really hard to believe. And finally, the course of barraging Zubaydah with whatever they could imagine is in itself suggestive of torture - this is your body, and we do what we want with it.

Reading Jane Mayer's book The Dark Side, you know that post 9/11 the atmosphere was one of brutality - Cofer Black's "we're going to put their heads on sticks" and all of Dick Cheney's dark side rhetoric.

Claiming ignorance is not going to fly here, guys and girls. Especially since it means your argument is falling apart - how do you argue "we didn't know it produced false confessions!" while saying "it worked! it worked!"?

Another good reason for a Truth Commission

2009-04-21T13:23:00.002-04:00

alongside prosecutions of course:

"'The next day, he told his interrogators that Allah had visited him in his
cell during the night and told him to cooperate,' said Kiriakou in an
interview...

'From that day on, he answered every question,' Kiriakou said. 'The
threat information he provided disrupted a number of attacks, maybe dozens of
attacks.'"

(from the Christian Science Monitor)

Basically, everything we think we know about torture could be a crock of crap. Because Kiriakou was clearly lying out his butt when describing the entire Zubaydah interrogation - even though he was there. Once upon a time, Kiriakou's information was a touchstone. Perhaps he should be brought in for another interview.

Good news: Obama is open to a truth commission and it is up to Holder to determine whether prosecutions will happen.

83/92

2009-04-20T13:37:00.002-04:00

Marcy Wheeler tells us that the CIA used waterboarding at least 83 times against Abu Zubaydah in August of 2002 and 183 times against KSM in March 2003. As she notes,

"Note, the information comes from the CIA IG report which, in the case of Abu Zubaydah, is based on having viewed the torture tapes as well as other materials. So this is presumably a number that was once backed up by video evidence."

This brings us back again into the pressing need to pursue the CIA for the destruction of these tapes. The torture mess is colossal. The tape destruction at least is digestible.

I went back again and read the WSJ article on the tapes in light of the revelation that Zubaydah was waterboarded 83 times.

"Just a fraction of the tapes showed the two men being questioned, the person
added. 'Most of the tapes were of Abu Zubaydah. A few were of Nashiri,' the
official said. 'Only about a dozen showed actual interrogations. The rest were
basically just them sitting around.'"

The ACLU's Amrit Singh makes a good point in the article - "the number of tapes destroyed indicate[s] a coverup."

Considering how utterly untrustworthy the CIA has been on every factual aspect of waterboarding, it is hard to doubt her logic. How many of those tapes really were just them "sitting around?" We now know enough to be sure that was on the interrogation tapes was chilling. While the appointment of a special prosecutor is still an open question, we do at least have a special prosecutor, John Durham, on this aspect. Dahlia Lithwick profiles him here. I hope he does not share Rahmbo's fear of pressing charges.

What Happens When Your Lawyer Is A War Criminal?

2009-04-17T16:11:00.002-04:00

"In this phase, you would like to employ ten techniques that you believe will dislocate his expectations regarding the treatment he believes he will receive and encourage him to disclose the crucial information mentioned above." Bybee Memo August 1 2002.

I think Valtin's/Mary's point here is important. And it is sobering to think of the past and present failures of our Congressional Intelligence Committees. The present failures include keeping an official investigation of the CIA secret and supporting Stephen Kappes for the D/CIA position.

I'm not sure there's an honest player in this whole thing.

Tomorrow We May Have New Reading

2009-04-15T13:17:00.002-04:00

via Talkleft, tomorrow comes the Obama Administration deadline for releasing three particularly controversial CIA torture memos. And guess what? The CIA is going bonkers about it.

But this is what I don't understand -

"Top CIA officials have spoken out strongly against a full release, saying it
would undermine the agency's credibility with foreign intelligence services and
hurt the agency's work force, people involved in the discussions said. However,
Director of National Intelligence Dennis Blair favors releasing the information,
current and former senior administration officials said."

What is the point of having a DNI if he doesn't have some control, or sway, over a key intelligence agency beneath him? Why is the CIA allowed to make such a ruckus, and where is DNI Blair's voice if he is so in favor?

And why must we keep up the farce that these memos made any sense, ever?

Penetrating the Secrecy

2009-04-08T10:21:00.002-04:00

Stephen Soldz has a new post up promoting a John Sifton article. It's very good and on one of my favorite subjects: the retention of Bush-era torture enablers and their total lack of accountability. From Sifton/Soldz:

"Take Stephen Kappes. At the time of the worst torture sessions outlined in the
ICRC report, Kappes served as a senior official in the Directorate of
Operations—the operational part of the CIA that oversees paramilitary operations
as well as the high-value detention program. (The directorate of operations is
now known as the National Clandestine Service.) Panetta has kept Kappes as
deputy director of the CIA—the number two official in the agency. One of Kappes’
deputies from 2002-2004, Michael Sulick, is now director of the National
Clandestine Service—the de facto number three in the agency. Panetta’s refusal
to investigate may be intended to protect his deputies. Since the basic facts
about their involvement in the CIA interrogation program are now known,
Panetta’s actions are increasingly looking like a cover-up."

and

"Nonetheless, footnote 9 reveals that the ICRC was informed by the then-director
of the CIA, Michael Hayden, that interrogation plans for detainees were
submitted to the 'CIA headquarters' for approval and as of 2007 were approved by “the Director or Deputy Director of the CIA.” It is likely that this approval process existed at earlier points in 2002-2006.
This is more than an interesting detail. In fact, it could implicate several high-level CIA officials in torture, including previous CIA directors George Tenet (resigned 2004) and Porter Goss (resigned 2006), as well as deputy directors John McLaughlin (resigned 2004) and Albert Calland (resigned 2006). These CIA officials are no longer serving. Kappes, Sulick and others are still there." [emphasis supplied]

This is a point I made during the D/CIA nomination process - don't be naive - if you're in power in the CIA, you knew. You must've known. That was the basis of my "Broader CIA Critique" and Stephen Kappes diaries (1, 2). That's why articles like this one (entitled "Do We Really Have to Call Steve Kappes a Torturer?") by Spencer Ackerman get under my skin:

"The most serious charge against Kappes, as best I can tell, comes from his
role in the abduction and rendition of Abu Omar, the Egyptian
cleric taken by the CIA off the streets of Milan and tortured in Egypt. A 2007
article from The Chicago Tribune about the rendition reports briefly that
Kappes was 'one of those who signed off on the Abu Omar abduction.' (h/t TalkLeft.) No doubt that’s troubling. Extraordinary rendition is legally and morally
problematic. Italy is prosecuting in absentia the CIA agents involved in the Abu
Omar rendition.

But we really don’t know from what’s publicly available the context of
Kappes’ decision. Was this something that his bosses demanded? Did he have
decision-making authority on the rendition? (The Chicago Tribune piece is
extremely complex, as much of this is murky.) What were the alternatives to
handling Abu Omar? What did or didn’t Kappes know? I’m not saying this is
exculpatory, necessarily. I’m saying that we should investigate before we reach
a conclusion.
...
This is partially why I keep calling for an independent congressionally-mandated investigation. There’s just too much that’s unknown to label individual CIA people torturers as a general proposition, so take it easy on that front. Reality-based community and all that."

"Take it easy?" So Kappes signs off on a rendition to Egypt - a country known to torture prisoners - and that makes him...what? A good person? His bosses made him do it? What boss - he was no.2 in the Directorate of Operations at the time. Nobody holds a gun to your head to make you torture. And as a matter of fact, Stephen Kappes eventually did resign from the CIA - but not because of torture, rather because of office politics!

From wiki:

"It had been widely reported in the press that Kappes quit the Agency rather
than carry out a request by Goss to reassign Michael Sulick, his then
deputy[1]. It is also reported that this incident occurred because the chief of staff
admonished the then assistant deputy director for counterintelligence, Mary Margaret Graham (who now works for the DNI John Negroponte) about leaking personnel information[1]. According to some news reports, Sulick had just engaged in a shouting match with Goss’s chief of staff."

Wow, what a principled guy.

Yes, torture is a serious crime. Serious enough that you do not want to besmirch someone's name with it. But it's also serious enough that if you knew what was good for you, you should've run the other direction. Instead, Stephen Kappes was sitting pretty at the top of the CIA before office politics drove him out - and then back in again.

One final point is that it's especially difficult to get at some of these CIA people because they are lovingly protected by Congress. As wiki notes in Stephen Kappes' entry, Democratic Senators Jay Rockefeller and Dianne Feinstein prefered he be selected for the CIA Director post. I mean...it is completely mind-boggling to think that the incoming Senate Intelligence Committee chairwoman, in charge of oversight, would want to place someone so closely tied with deceiving that same committee and carrying out torture policies at the top of the CIA...but there you go. The CIA is deeply and seriously protected by our politicians. And the only way we can change that is by ensuring those politicians are fired...next time we see their name on a ballot.

Institutional Power

2009-04-06T01:17:00.003-04:00

The antics being laid at the feet of John Brennan are quite interesting. Stephen Soldz sums up both major articles on the release/not to release question swirling around the OLC memos here.

Basically, the John Brennan example is instructive because it mirrors in many ways the complaints being put up now about Obama's economic team. They are serving the interests of their friends - or, if you must be charitable, somehow it always happens that by coincidence their friends make out from decisions that simply have to be made. If you want to know the policy, look to the circle of friends. And that's simple - in Brennan's case, it was Tenet and even Cofer Black.

But the problem goes beyond Brennan - it has been noted that Brennan was able to flip Panetta on the issue. When I say flip, I say so because I assume that Panetta would have favored the release of these memos, due to his past statements on torture and the like. It's possible Panetta decided to completely sell out out of some entitlement of his new role, but I think it's more likely that institutional factors influenced him to do so - least of all the RETENTION OF STEPHEN KAPPES as the Deputy Director of the CIA. If anyone would like to hide the evidence, it is Stephen Kappes, whose link to the rendition of Abu Omar was reported in the Chicago Tribune. And furthermore, as in all these things, that link (to Abu Omar) is obvious simply by virtue of his preeminent position in the CIA. It was his job to know, and what he knew was reprehensible.

And what of that? What of a defiant CIA whose colorful alumni willfully threaten the country's security in the media? Even the Senate Intelligence Committee, screwed over (supposedly) by the CIA's reluctance to let the Senate conduct its mandated oversight, does not know if it will make its investigatory findings public. Senator Feinstein, do not hurt yourself while slapping your own wrist. Although I'm sure you won't.

This is especially crappy because the CIA has the information. This is the agency where it all began. The problem is not John Brennan (though he deserves the ire) - the problem is much larger. It's our reluctance to take the CIA in hand - because the organization is full of people who apologize for and defend torture. That attitude needs some exposure to the sunlight. We must expose the horror of what actually happened - war crimes - and expose the assumption that this actually works. The CIA analyzed the torture results...and reports are suggesting now that there weren't really any results at all. Why defend this stuff? And why not at least ask why the CIA feels its ineffective and inhumane methods should be spared any investigatory violence whatsoever? How many privileges does the CIA have and are they completely morally irresponsible in their role as servants of the President for what they actually do?

It's simple, especially in a country that at times leans as right as ours - if we're not careful, our laziness in terms of accountability will lead us into torture again, soon.

I Knew...

2009-04-01T15:30:00.003-04:00

that when John Brennan was in the news again it would be for some annoying conservative bullsh*t (hence the title). And here it is:

"But some former and current Central Intelligence Agency officials say a rush to
release classified material could expose intelligence methods and needlessly
offend dedicated counterterrorism officers. Some administration and
Congressional officials said John O. Brennan, a C.I.A. veteran who now serves as
President Obama's top counterterrorism adviser, has urged caution in disclosing
interrogation documents."

IOW, don't release the torture memos, because they describe what I oversaw as no.4 figure in the CIA.

And seriously, don't release them because it would hurt torturers' feelings?

It's unbelievable, this crap. Thank God for the courts - people (from the Executive Branch) want to bury this, and we can't let them.

David Ignatius: Opinions and Facts

2009-03-30T12:01:00.002-04:00

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

2009-03-29T01:44:00.002-04:00

(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

2009-03-24T11:02:00.004-04:00

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

2009-03-23T23:32:00.003-04:00

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

2009-03-23T16:01:00.004-04:00

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?

2009-03-23T11:20:00.003-04:00

[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

2009-03-23T09:44:00.002-04:00

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

2009-03-22T16:38:00.003-04:00

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

2009-03-21T20:04:00.003-04:00

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

2009-03-20T18:47:00.007-04:00

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!

2009-03-19T16:06:00.002-04:00

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

2009-03-14T19:11:00.003-04:00

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)

2009-03-11T21:37:00.004-04:00

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?

2009-03-10T16:43:00.008-04:00

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

2009-03-10T12:22:00.002-04:00

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

2009-03-07T15:10:00.004-05:00

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

2009-03-04T11:28:00.002-05:00

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?

2009-03-02T11:26:00.005-05:00

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."

"...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

2009-03-02T11:13:00.002-05:00

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.

Update - A Few More Perspectives on GITMO

2009-02-27T21:55:00.005-05:00

The Christian Science Monitor has an interesting article on what legal standards are rightfully binding on the prison at Guantanamo. To excerpt from the article here:

"Setting the stage for that anticipated policy debate, Mr. Obama issued an executive order last month directing the Pentagon to determine whether detainees at Guantánamo were being held 'in conformity with all applicable laws governing conditions of confinement.'
Adm. Patrick Walsh, the vice chief of naval operations, conducted a 13-day investigation and compiled an 81-page report. He announced his findings in a press conference on Monday. 'After considerable deliberation and a comprehensive review, it is our judgment that the conditions of confinement in Guantánamo are in conformity with Common Article 3 of the Geneva Conventions,' Admiral Walsh said."

"According to the report, the Walsh team 'reviewed' the Geneva Convention on Prisoners of War and the Geneva Convention on Civilians. But there is no discussion of whether those laws were deemed applicable – or inapplicable – to the review of conditions at Guantánamo.
Some legal experts say that detainees who fought alongside the Taliban are entitled to the full protections of the Geneva Conventions and that others picked up as civilians should qualify for a higher level of protection than the bare minimum of Common Article 3."
....

"Mr. Kassem has been urging Pentagon officials to embrace a broader perspective on the legal restrictions that apply at Guantánamo. 'Conditions at Guantanamo are subject to both international law and US law, including the US Constitution,' he wrote in a Feb. 10 letter to Defense Department officials. 'US obligations under international law – both international law of war and international human rights law – are not limited to Common Article 3.'
Diane Marie Amann, an international law and military law expert at the University of California, Davis, School of Law, agrees. 'There are any number of laws that may apply,' she says.
'When the president said "all applicable laws,"' he meant that there should be an exhaustive review of all applicable laws," Professor Amann says. 'That would mean laws like the main Geneva Conventions, customary international law, the International Covenant on Civil and Political Rights, and any federal rules with regard to custody.'" [emphasis supplied]

Consider again that President Obama was voted in to change all this - to abandon the Bush way of thinking and fighting terrorism. The CCR has reported that conditions have worsened - as have the lawyers who defend the inmates at Guantanamo. This isn't just fantasy, or taking the word of the detainees there. Abuse leaves marks that a doctor can see - if someone's knee, shoulder, and thumb have been dislocated by guards, who can argue?

When presented with that kind of evidence, an investigation into abuse should be ordered. You install a process by which you find out the truth of such allegations. Especially in light of Obama's executive orders, the detainees deserve at least the ability to complain about abuse and have it actually investigated. Even better would be the sense that this investigation was public and available to the world, instead of lost in the shadows of Guantanamo. Did the detainee to this to himself? Of course it's possible. But wouldn't you want to know how the f*ck a man dislocated his knee, shoulder, and thumb?

Meanwhile, the AG Eric Holder had a very successful and of course pleasant trip to Guantanamo. For some reason...gosh, I can't imagine why...he didn't get the memo that conditions have worsened:

"Attorney General Eric Holder, just back from his first trip to Guantanamo Bay, Cuba, said Wednesday he is still determined to carry out President Barack Obama's order to close the prison, but admitted he was 'impressed by the people,' and said 'the facilities are good ones.'
Attorney General Eric Holder said he didn't witness any prisoner mistreatment during his trip.
Holder's positive assessment of 'professionalism' at the prison was in distinct contrast to claims by many critics who charge Guantanamo Bay stands as a world-wide symbol of the alleged U.S. mistreatment of enemy combatants.
'I did not witness any mistreatment of prisoners. I think to the contrary I saw a conscious attempt by those guards to conduct themselves in an appropriate way,' Holder told reporters."

Rah rah rah! Oh happy day, the DoJ agrees with the DoD. Holder evinces concern for conducting the process of determining each detainee's status - but what about the actual conditions of the prison? What about establishing a new type of prison, in which abuse is investigated and conditions are actually improved? There is no official curiosity about that whatsoever, and no signs the Obama administration will take steps to monitor and crack down on abuse.

Think about who you're holding and how you are holding them. Guantanamo is yours now, Obama. Do you want history to look back and say that the last year at Guantanamo was just like the years before? Such a verdict is already developing.

Update: Candace at Guantanamo Blog reports some improvements that ought to be appreciated:

"The horrors of Guantanamo and the treatment of these men needs to be examined
and the people responsible need to be held accountable... but the fact remains
that change is taking place... and it is a welcome change.For the first time in
more than two years my client Al-Ghizzawi is allowed to sit around and just
shoot the shit with the other men in camp 6. For the first time in seven years
he can actually sit and watch a movie and read a real newspaper (well except for
the fact that he can't see anymore ...but lets not go there). For the first time
in more than two years he can spend time totally outside camp 6, where he can
see the trees, mountains, sun. And that is because Obama announced that a team
was coming in to inspect.... and the military knew that it better get its
collective ass in gear... Obama has begun the process of fixing things and we
must encourage and demand the continuation of that process.Yeah, I want to see
the people responsible for this criminal enterprise prosecuted. But right now
what I really want to see is Mr. Al-Ghizzawi and the other men start to heal.
Socialization, nature, a semblance of normality will start the healing
process...... and for that I am grateful.I for one will focus my energy on
encouraging the change that must happen to help the men at Guantanamo... later I
will go after the criminals with a vengeance."

Chaos At Guantanamo - Abuse Continues

2009-02-26T16:58:00.004-05:00

Binyam Mohamed's claim that he was abused - after Obama took office - at Guanatanamo is apparently just part of a larger, more disturbing problem. Reuters:

"LONDON (Reuters) - Abuse of prisoners at Guantanamo Bay has worsened
sharply since President Barack Obama took office as prison guards 'get their
kicks in' before the camp is closed, according to a lawyer who represents
detainees.

Abuses began to pick up in December after Obama was elected, human rights
lawyer Ahmed Ghappour told Reuters. He cited beatings, the dislocation of limbs, spraying of pepper spray into closed cells, applying pepper spray to toilet paper and over-forcefeeding detainees who are on hunger strike.

The Pentagon said on Monday that it had received renewed reports of
prisoner abuse during a recent review of conditions at Guantanamo, but had concluded that all prisoners were being kept in accordance with the Geneva Conventions."

...

"'Certainly in my experience there have been many, many more reported
incidents of abuse since the inauguration,' added Ghappour, who has visited
Guantanamo six times since late September and based his comments on his own
observations and conversations with both prisoners and guards.

He stressed the mistreatment did not appear to be directed from above,
but was an initiative undertaken by frustrated U.S. army and navy jailers on the
ground. It did not seem to be a reaction against the election of Obama, a
Democrat who has pledged to close the prison camp within a year, but rather a
realization that there was little time remaining before the last 241 detainees,
all Muslim, are released."

...

"Admiral Patrick Walsh, the review's author, acknowledged on Monday that reports of abuse had emerged but concluded all inmates were being treated in line with the Geneva Conventions.

'We heard allegations of abuse,' he said, asked if detainees had reported torture. 'And what we did at that point was to go back and investigate the allegation... What we found is that there were in some cases substantiated evidence where guards had misconduct, I think that would be the best way to put it.'

Walsh said his review looked at 20 allegations of abuse, 14 of which
were substantiated, but he did not go into details. Generally he said the abuse
ranged from 'gestures, comments, disrespect' to 'preemptive use of pepper
spray.'

Ghappour said he had spoken to army guards who, unsolicited, had
described the pleasure they took in abusing prisoners, whether interrupting
prayer or physical mistreatment. He said they appeared unconcerned about
potential repercussions.

He also saw evidence of guards pulling identity numbers off their
uniforms or switching them once they were on duty in order to make it more difficult for them to be identified.

Ghappour said he had filed two complaints of serious detainee abuse
since December 22 but received no response from U.S. authorities. In one case
his client had his knee, shoulder and thumb dislocated by a group of guards, Ghappour said."

...

"Another area of concern was evidence that detainees were being abused on the
way to meetings with their lawyers -- sometimes so badly that they no longer
wanted to meet with counsel for fear of the beatings they would receive, he
said.
'Some detainees are convinced they are going to be locked up there
forever, despite the promises to close the camp,' he said." [emphasis supplied]

So are we going to let the Guantanamo guards have a year to get their kicks in? Or are we going to provide a safer environment where they can visit lawyers without fear of bruality? How about guards disguising their identities? They'll get away with that and abuse?

GITMO is as bad as it's ever been. Spread the word.

h/t daring grace

Panetta Comments on Rendition

2009-02-26T10:31:00.003-05:00

From FreeDetainees.org:

"WASHINGTON (AP) — President Barack Obama may limit the countries to which the U.S. sends alleged terrorists to those with good human-rights records, and will
be less inclined to hand prisoners over in general, to help make sure they are
not tortured or abused, CIA Director Leon Panetta said Wednesday.
'If it’s someone we are interested in, there is no purpose to rendering anyone,
particularly if it’s a high-value target,' Panetta said in his first
on-the-record meeting with reporters since his confirmation this month.
Panetta said he believes prisoners should only be handed over to
countries that would have a legal interest in them — their home country or one
where a prisoner has charges pending, for example."

That rendition is kind of pointless - for intelligence purposes - has been mentioned before. An earlier LA Times article that speculated rendition "might be poised to play an expanded role going forward" quoted a former CIA official as saying, "In some ways, [rendition] is the worst option." Even the architect of the Clinton-era renditon program, Michael Scheuer, said in a Congressional Hearing in April 2007 that "I personally don’t think that torture is a very good idea in terms of getting information" (p.34 of the document).

The article becomes more interesting:

"Panetta made headlines during a congressional hearing earlier this month
when he confirmed that Obama intended to continue rendering prisoners captured
in the war on terrorism. He said the administration would get assurances first
from the country that the prisoner would not be tortured or have his human
rights violated.

That has long been U.S. policy. The Bush White House also said it
required assurances of humane treatment from other governments. But some former prisoners subjected to the process during the Bush administration’s anti-terror war contend they were tortured. Proving that in court is difficult because
evidence they are trying to use has been protected by the president’s state
secret privilege.

Panetta said Wednesday that the Obama administration would 'make very
sure' that prisoners are not mistreated after they are rendered. Asked exactly
how that would be done, Panetta was cryptic.

'Well, I guess, you know, A, make sure, first of all, the kind of countries that we render will tell us an awful lot about that,' he said. 'Number 2, I think diplomatically we just have to make sure that we have a presence to ensure that that does not happen.'” [emphasis supplied]

Well, I do appreciate the irony there. We promise to not conduct rendition to torture, but if a detainee claims otherwise, we will not let them have their day in court, protecting ourselves with the state secrets privilege. Reality is simply too difficult to accept. There's only policy - not individual cases, not evidence, not facts. Unfortunately, we still have a bit of that Bush rigmarole when it comes to rendition.

BUT - I am extremely interested to know the criteria that will determine where a detainee is rendered. Is it only countries with good human rights records? Or is rather the two criteria suggested by Panetta in the bolded quote above? Asking the country receiving the rendered person to essentially police their own behavior is not adequate in safeguarding the detainee from torture or otherwise inhumane treatment. Nor is diplomatic pressure, in my opinion. These two criteria come from the world of plausible deniability more than anything else.

If Obama intends to expand the rendition program, or present us with a believably new and more humane version, I would very much like to see some kind of standard set of criteria created and published that describes the countries that can receive a rendered suspect. Or he could rescind his absurd use of the state secrets privilege and we could find out case by case.

Here is a transcript of Panetta's comments in the press meeting yesterday. Some noteworthy sections:

QUESTION: Could you talk to us a little bit about the Obama rendition
program? You said that you'll continue doing it, but your focus will be on, you
know, making sure that nothing bad happens to the prisoners once they are handed
over. That's always been the U.S. policy. How will what you all do be different?
And, can you talk to us a little bit about the problem that we're seeing more
and more, which is people who have been rendered to other countries and released
and are returning to the battlefield? And can you tell us if any prisoners are
ever going back to Gitmo while it's still open? If not, where they're going.

DIR. PANETTA: All right, let me start — (chuckles).

DIR. PANETTA: Please, thank you. (Chuckles.) First of all, on the
rendition issue: Obviously, the executive order that was issued by the President
sets, you know, the ground rules for dealing with that issue. Number one, we are
obligated to follow the Army Field Manual, and we will do that. Secondly, we are
closing black sites, and we are doing that. And thirdly, rendition is still
permitted, but obviously — and it's been used in the past to obviously send
people to countries where there are jurisdictional issues for purposes of trying
individuals. If we render someone, we are obviously going to seek assurances
from that country that their human rights are protected and that they are not
mistreated. And we are going to make very sure that that does not happen. Well,
I guess, you know, A, make sure, first of all, the kind of countries that we
render will tell us an awful lot about that, number one. Number two, I think
diplomatically we just have to make sure that we have a presence to ensure that
that does not happen.

Q: Can I follow, please? Where do you personally stand on enhanced
interrogations? Do you believe there are situations where enhanced
interrogations, aggressive interrogations could be necessary?

DIR. PANETTA: You know, my position is pretty much in line with the
President's. It is in line with the President's. I think the Army Field Manual
gives us all of the capabilities we need in order to interrogate, and that's
based on my own military experience plus having talked to the FBI Director and
others who have direct experience with this. I think, you know, 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. But my personal view at this
stage is that the Army Field Manual gives us all of the tools we need.

We're going to do everything necessary to protect the safety of this
country. And as I mentioned in my testimony, obviously, you know, the President,
under Article II, is going to have to — if we ever have that kind of situation
that would require something beyond that, the President has the ability to
review that. But knowing this president and what he said, I think his position
would be we stand by the Army Field Manual.

Q: So would you personally be willing to order enhanced interrogation?

DIR. PANETTA: No.

Q: You would not. So that would have to go to the President?

DIR. PANETTA: Are you kidding me? You better believe it. (Chuckles.)
Under this executive order.

Q: Would you personally recommend to the president enhanced
interrogation?

DIR. PANETTA: No. No, I think at least from — the purpose of the review
process is to look at that and determine just how valid that is. And look, there
are views on both sides. But my sense right now from my position is, I think
what the President has provided in the executive order gives us more than enough
to derive the information.

There is some other interesting stuff in the transcript I will try to blog about later.

Updated - Obama, Bagram and Appendix M

2009-02-25T22:43:00.005-05:00

I have not yet covered here last week's decision by the Obama DoJ to continue the position of the Bush DoJ regarding Bagram. In the words of Attorney General Michael Hertz, "Having considered the matter, the government adheres to its previously articulated position."

This is not good in itself, but the Obama DoJ's decision here raises questions about what they consider to be detainee categories. Bagram detainees are considered unlawful combatants. Does the Obama DoJ consider those at Bagram, held indefinitely, with no right to challenge their detention in the US courts, unlawful combatants? Are those held at Bagram in a world where Appendix M, applicable only to unlawful combatants, can be applied? To quote the CCR web article Valtin posts about here:

"Appendix M of the Army Field Manual - a new section introduced in 2006,
applicable only to
'unlawful combatants,' the category applied to detainees in Guantanamo, at
secret CIA prisons, and elsewhere - allows the use of techniques such as
prolonged isolation, sleep deprivation, sensory deprivation, and inducing fear
and humiliation of prisoners. These techniques, especially when used in
combination as permitted by the AFM, constitute cruel, inhuman and degrading
treatment, and in some cases, torture. These techniques have caused documented,
long-lasting psychological and physical harm and were condemned by a bipartisan
congressional report released last month, as well as by the Bush-appointed head
of the military commissions at Guantanamo."

If Bagram can exist as is, can Appendix M? It is true, as Andy Worthington writes, that Obama's executive order Ensuring Lawful Interrogations:

"specifically revokes President Bush's Executive Order 13440
of July 20, 2007, which 'reaffirm[ed]" his "determination,' on February 7, 2002,
that 'members of al-Qaeda, the Taliban, and associated forces are unlawful enemy
combatants who are not entitled to the protections that the Third Geneva
Convention provides to prisoners of war,' sought to grant himself the right to
'interpret the meaning and application of the Geneva Conventions" as he saw fit,
and also sought to exclude the CIA from any oversight whatsoever.'"

Yet Obama confirmed the Bush position on Bagram. And that position is that those at Bagram were "unlawful combatants."

Are those at Bagram denied access to US courts because they are another category, aside from unlawful combatants? Are they denied the right to challenge their detention because they are unlawful combatants?

People at Bagram, picked up outside Afghanistan, are under Obama at least temporarily denied judicial review of their detention. And that makes them what?

This decision by the Obama DoJ raises the real possibility that unlawful combatant exists as a category, and that Appendix M can be lawfully used. We need to know what is really going on. Thanks to the careful folks like Valtin and those at CCR for raising the troubling issues of Appendix M. Appendix M, unfortunately, may not be dead.

Update: Here is a definition of "unlawful enemy combatant" from Human Rights First:

"'Unlawful Enemy Combatant'
The United States government defines 'unlawful enemy combatant' as 'a
person who has engaged in hostilities or who has purposefully and materially
supported hostilities against the United States or its co-belligerents who is
not a lawful enemy combatant (including a person who is part of the Taliban, al
Qaeda, or associated forces).'[5]
The Bush Administration asserts that 'unlawful enemy combatants' can be held pursuant to the President's powers as commander-in-chief and under the laws of war until the end of hostilities. The administration argues that detaining enemy combatants prevents them from returning to the battlefield, thereby deterring further armed attacks, and allows the United States to gather intelligence through interrogation to prevent future attacks."[6]

More info on unlawful combatants is here and here.

We know that the Bush administration position is that (from Daphne Eviatar) "the prisoners at Bagram are 'enemy combatants' seized in a war, so the United States can detain them indefinitely, without charge or access to lawyers, until hostilities end – whenever that may be." We know also that none of the prisoners at Bagram are being held (from Jonathan Hafetz) as "prisoners of war." So unless Obama changes openly the status of those in Bagram, I would assume they are all being held as unlawful enemy combatants. And I would assume they are being treated as such - which means the AFM Appendix M is in play (it certainly can be used). As David Mizner writes here, "In upholding Bush's position, Bush [I believe he means to write "Obama" here] is reaffirming that these prisoners are enemy (or unlawful) combatants."

It seems, therefore, that Bagram is Appendix M territory. You can argue as Decline and Fall does here that the problem isn't the AFM. That's another perspective. I find the conditions at Bagram right now quite worrying.

Understanding & Binyam Mohamed

2009-02-24T00:10:00.006-05:00

Andy Worthington has a great piece up now here about Binyam Mohamed as a person. It is of special interest I think because as we move to free those held, for literally no reason, at Guantanamo, it will be up to the Obama team to convey to the nation that these people are not dangerous. The Bush terror strategy was to crush anybody questionable. It was a totally unethical and inappropriate strategy, but now surely many in America believe Guantanamo is a scarlet letter - if you were there at all, you were there for a reason.

And the public will instinctually worry about recidivism - "the act of a person repeating an undesirable behavior after they have either experienced negative consequences of that behavior, or have been treated or trained to extinguish that behavior." If the people at Guantanamo were treated like terrorists, will they now become terrorists? It's inside the definition of recidivism. Innocents treated like those guilty can become guilty. And the actually guilty can return to what they used to do.

Preserving state secrecy will be of no help to Obama here. Shutting out sunlight doesn't make things easier. As Worthington writes, and quotes, Binyam Mohamed believes in the law apparently more than our Bush era officials did:

"Warming to his theme, as Col. Kohlmann 'was staring into the headlights of
Binyam’s speech and could see no way to cut him off,' he [Binyam
Mohamed] continued:

'When are you going to stop this? This is not the way to deal with this
issue. That is why I don’t want to call this place a courtroom, because I don’t
think it is a courtroom.

I am sure you wouldn’t agree with it, because if you was arrested
somewhere in Arabia and Bin Laden says, “You know what, you are my enemy but I
am going to force you to have a lawyer and I give you some bearded turban
person,” I don’t think you will agree with that. Forget the rules, regulations
and crap … you wouldn’t deal with that. That is where we are. This is a bad
place. You are in charge of it.'

Stafford Smith then proceeded to explain:

'It was an extraordinary lecture. Binyam finally came to a firm
conclusion. “I am done. You can stop looking at the watch,” he said. He then
turned away from Kohlmann, as if to ignore any response. He was holding up his
sign, "CON-MISSION," and waving it to the journalists behind him, just in case
they had missed it the first time.'"

As some Obama officials contemplate the possibility of new "national security courts" and deal with a legacy of evidence gained by torture, they may want to consider social science, and work hard to make public and perfect an understanding of what recidivism means when the crime is terrorism. They may want to ask themselves if it would be better to deal with terrorists in ONE legal language that we can all understand - simply the criminal justice system. They need to present the world with an understanding of how terrorism functions that is realistic and tactical - not fear-based. Take this quote from Ron Suskind's "The One Percent Doctrine" for example:

"'What we understood inside CIA is that al Qaeda just doesn't act out of
bloodlust, or pathological rage. Though their tactics are horrific,
they're not homicidal maniacs. They do what they do carry forward specific
strategic goals,' said a senior CIA official involved in highest-level debates
over bin Laden and Zawahiri during this period [2002-2004]." [p.304]

Jane Mayer in her recent article quotes newly appointed Principal Deputy Solicitor General Neal Kaytal. It begins with a quote from Kaytal:

“'What is needed is a serious plan to prosecute everyone we can in regular
courts, and a separate system to deal with the very small handful of cases in
which patently dangerous people cannot be tried.' This new system, he wrote,
would give the government the 'ability to temporarily detain a dangerous
individual,' including in situations where 'a criminal trial has failed.' There
are hundreds of legal variations that could be considered, he said. In 2007,
Katyal published a related essay, co-written with Jack L. Goldsmith, a
conservative Harvard Law School professor who served as the head of the Office
of Legal Counsel in the Bush Justice Department. The essay argued that
preventive detention, overseen by a congressionally authorized national-security
court, was necessary to insure the 'sensible' treatment of classified evidence,
and to protect secret 'sources and methods' of gathering intelligence. In his
Web post, Katyal wrote, 'I support such a security court.'”

Aside from the question of WTF Katyal is doing co-writing an article with Jack Goldsmith, you have to wonder, what the hell makes someone "patently dangerous" that cannot be proven in a court? If they are conspirators with other terrorists, that can be proven. Under the proposed Kaytal/Goldsmith system, "patently dangerous" is a category created by the executive branch, determined by the executive branch, and one from which you may not escape. It is Bush 2.0.

One of the details I find so significant about the Worthington quotes above is that Binyam Mohamed is waving to journalists - asking them to report his story. We don't do that enough here. Why do we let Obama hide behind the state secrets privilege in cases like Mohamed et al. v. Jeppesen? Why don't we ask as well exactly what happened?

It seems to me that you can let people out of Guantanamo with confidence if you bother to ask experienced social scientists what recidivism is (I mean, God, do you want Dick Cheney to be one of the few people with an authoritative voice on terrorist recidivism, and what that even means for our national security??). What can men in isolation for years really do upon returning home that could be so dangerous? If Obama does not cement the idea that the rule of law matters (as opposed to "safety and ignorance rule") then we will constantly return to a gray area, navigated only by our fears, where the little we know is enticing enough for us to trust the executive branch to make the important decisions (a branch often staffed by people less knowledgable on the law, and often less knowledgable on ethics, than our judicial system!). Sorry, that's not how I want it to be. We try people in the US court system, and there only. We enforce executive orders written to reign in abuses at places like Guantanamo (h/t Valtin).

So many aspects of our so-called "war on terror" - how to capture, how to detain, how to try - have been figured out over hundreds of years. Obama needs to bring this common knowledge to bear on our efforts to deal with people targeted for whatever reason (unfortunately, often racial) as terrorist suspects. I am not afraid of a free Binyam Mohamed, and I don't think Obama or the British are either. But if they don't make clear why they are not, and make the one process (the US criminal justice system) by which we learn to handle our fears clear and applicable to ALL, they will only feed into the imaginations of those in our nation who are consumed with fear and paranoia. They must increase the transparency of our trials of terrorists, and they must handle them inside the US Justice system ALONE. We undermine ourselves when we do not, and we unjustifiably, and criminally, ruin real lives.

Update: For an example of the fear argument I am referring to, go no further than Sean Hannity. Sure, what he says is pretty predictable, but people do watch this stuff on TV. Pres. Obama has gone on FOX before. He needs to be able to manage the crap that will come out of FOX with each prisoner release.

Safeguards

2009-02-23T13:24:00.003-05:00

From The Guardian:

"The intelligence and security committee, whose job is to scrutinise the
activities of MI5, is looking at Mohamed's case, having received further
information from his lawyers.

The committee, which has recently come under mounting political
pressure over claims it failed to adequately investigate allegations of
collusion in torture by British agents, met with Stafford Smith in private this
month.

Mohamed's lawyer told them it would have been 'absolutely impossible'
for it to have cleared MI5 of involvement in torture had it seen the secret documents. The committee is likely to hear further evidence relating to Mohamed, although his lawyers maintain that access to the documents will be key to its ability to conduct effective scrutiny." [emphasis supplied]

Access is huge. How is it possible that Bush was able to shut out so many members of the Congressional intelligence committees and get away with it? It shouldn't be up to the executive branch to write laws, and then decide themselves when they are crap (as Goldsmith did withdrawing a Yoo memo). As is becoming clear, if insane loyalty to Bush was not altering your literary comprehension, then you should've been able to see that the Bush torture memos were total crap. Sadly, no one was there - no one independent - to call that out.

If we reinvigorate our system of checks and balances, I will have more faith in our government's ability to turn away from torture permanently. But right now we have a lot of holes to plug before I am confident. And Obama's apparent unwillingness to give up executive power in national security areas is troubling.

Follow Up on the Pentagon Gitmo Report

2009-02-22T16:52:00.003-05:00

Glenn Greenwald wrote an excellent post today contrasting the Pentagon's report finding Gitmo compliant with the Geneva Conventions and the reality - Binyam Mohamed was beaten by guards there "right up to the point of his departure from Guantánamo Bay."

If you believe that an integral part of stomping out terrorism is the war for hearts and minds, this type of reporting has to end now. Accounts of mistreatment - the mistreatment of someone to boot that we determined we cannot try in a court - will have the same undermining effect as all other previous documents showing US brutality. The photos of Abu Ghraib showed us as monsters. Don't you think photos of a brutalized Binyam Mohamed would do the same?

Investigations should be launched into this behavior, by an outside authority. It would be one way for Obama to maintain credibility on this. But he may need the prodding of the UK government to do so, a possibility raised by former attorney general Lord Goldsmith.

It would be very interesting to know why the emergency reaction force at Guantanamo continues to behave in such a brutal manner. Did they not get the memo? Or was the memo from the top - stop torture - interpreted in a "special way" by DoD authorities for them?

In any case, some type of action is called for in this situation.

The Pentagon Declares Gitmo Is Humane

2009-02-21T01:59:00.003-05:00

The report President Obama commissioned to investigate conditions at Guantanamo has been finished, and apparently Gitmo rates highly:

"A Pentagon review of conditions at the Guantanamo Bay military prison has
concluded that the treatment of detainees meets the requirements of the Geneva
Conventions but that prisoners in the highest-security camps should be allowed
more religious and social interaction, according to a government official who
has read the 85-page document.

The report, which President Obama ordered, was prepared by Adm. Patrick
M. Walsh, the vice chief of naval operations, and has been delivered to the
White House. Obama requested the review as part of an executive order on the
planned closure of the prison at the U.S. naval base at Guantanamo Bay, on the
southeastern tip of Cuba."

Well, that's a refreshing dose of...dishonesty. The report comes only a few weeks after Lt Col Yvonne Bradley described deteriorating conditions at Guantanamo (The Guardian) - painful forcefeeding, 20 inmates on a "critical list" due to health problems, and beatings for those inmates who resist forcefeeding.

But I suppose I shouldn't distrust the Pentagon reporting on itself...I think the definitive report will come from the International Red Cross. The Center for Constitutional Rights is soon to put out a report on conditions at Guantanamo. Here is a preview from the Washington Post article cited above of what the CCR will find:

"'We do think conditions are in violation of U.S. obligations to treat
prisoners humanely, and prisoners are at a physical and mental breaking point,'
said Pardiss Kebriaei, a staff lawyer at the center. 'These are not the
conclusions we had hoped for under Obama. It's very disappointing.'

Attorneys representing detainees singled out force-feeding as
particularly abusive.

Ahmed Zaid Salem Zuhair, a Saudi who has been on a hunger strike since
the summer of 2005, has lost so much weight during his time at Guantanamo Bay
that a federal judge has ordered an independent medical evaluation of him.
Zuhair's attorney, Ramzi Kassem, said his client has been strapped to an
uncomfortable chair for hours at a time during feedings and described the
procedure as very painful.

'They deliberately use this brutal method that has no medical
justification to put pressure on people like my client to give up the hunger
strike,' he said.

Kassem added that his client, who has been cleared for release, was
recently moved to Camp 6, where he is on nearly round-the-clock lockdown in a
frigid cell.

Walsh, however, found that the temperature in cells is comfortable and
urged officials to continue to use climate controls correctly."

There is simply no way we can trust the Pentagon to run Guantanamo humanely, IMO. And they certainly cannot be trusted to conduct oversight on themselves. There haven't been enough indications from the Obama Administration that Guantanamo has changed since he assumed office. We've heard "nothing's wrong with Guantanamo" for years and it flew in the face of reality. We are hearing the same thing - and not learning enough about the reality there to believe it this time. I want to see evidence that President Obama is enforcing his executive orders. Commission a report to tell us all about how things have improved there. What are the guards that once beat detainees doing now? If you're going to take so long to close it, at least show us that this hellhole has changed.

Binyam Mohamed Will Return to UK Next Week

2009-02-20T16:50:00.002-05:00

Telegraph UK says next week is likely, and their headline suggests as early as Monday. Mohamed ended his hunger strike a little over a week ago.

Clive Stafford Smith in Spiegel Online

2009-02-19T12:29:00.002-05:00

Spiegel Online has a great interview with Binyam Mohamed's lawyer Clive Stafford Smith.

One of his most interesting comments relates to the letter he sent to President Obama. The letter was covered by Valtin at his blog here and here.

SPIEGEL ONLINE: You have even sent a letter to President Obama containing
evidence that Mohamed has been tortured. The president, however, has not
received that letter.

Stafford Smith: Oh God, this letter story is just incredible. As a
defense team, we had access to intelligence papers, and we tried to provide the
president with the evidence of torture we obtained. We wanted him to know that.
But all the substantial parts of my letter were blacked out so the president
could not read them. Under the bizarre laws the Americans have, they are
preventing their commander-in-chief from knowing things that he should. I wrote
to him that he is being denied access to material that would help prove that
crimes have been committed by US personnel and that these decisions have been
made by the very people he commands.

I am not sure what the legal framework is for this kind of thing. What Stafford Smith is suggesting, I think, is that it is legal to censor such material from the President. Rather disturbing - and stupid. If someone (the DoD) is blacking out material in an attempt to shield President Obama from criminal liability - as The Guardian suggests (h/t Valtin) - well, that issue isn't going away anytime soon. Obama is going to be constantly confronted (or constantly shielded) by evidence of American wrongdoing. He can't simply spend the next 4-8 years in denial of that.

If covering up torture makes President Obama criminally liable, I have some advice for him - don't do it. It may not be the most noble motivation, but at least get the torture off your hands, and CYA.

Tell the Truth: The Obama DoJ

2009-02-18T15:37:00.002-05:00

Recently the Obama DoJ seriously misstepped by maintaining Bush's position on Mohamed et al. v. Jeppesen, invoking the state secrets privilege and attempting to get the case dismissed. What followed was a great deal of rationalization and interpretation.

Ambinder, for instance, saw what the Obama DoJ did and thought it wise:

"It wouldn't be wise for a new administration to come in, take over a case from a
prosecutor, and completely change a legal strategy in mid-course without a more
thorough review of the national security implications."

In another article he quoted an anonymous Obama administration official:

"Officials decided that it would be imprudent to reverse course so abruptly
because they realized they didn't yet have a full picture of the intelligence
methods and secrets that underlay the privilege's assertions, because the
privilege might correctly protect a state secret, and because the domino effect
of retracting it could harm legitimate cases, both civil and criminal, that are
already in progress.

'If you decide today precipitously to waive this privilege, you can't
get it back,' an administration official said. 'If you decide to assert it, you
can always retract it in the future.'"

Which basically echoed the statement of DoJ spokesperson Matt Miller, who said this at the time:

"'It is the policy of this administration to invoke the state secrets
privilege only when necessary and in the most appropriate cases,' he said,
adding that Attorney General Eric H. Holder Jr. had asked for a review of
pending cases in which the government had previously asserted a state secret
privilege.

'The attorney general has directed that senior Justice Department
officials review all assertions of the state secrets privilege to ensure that
the privilege is being invoked only in legally appropriate situations,' he said.
'It is vital that we protect information that, if released, could jeopardize
national security.'"

Well, of course that sounded like B.S. then, but it certainly is now. Charlie Savage this morning quotes White House counsel Greg Craig, who justified invoking the state secrets privilege, and suggested that the Obama DoJ did so for reasons that they are not likely to reverse:

"Mr. Craig said Mr. Holder and others reviewed the case and 'came to the
conclusion that it was justified and necessary for national security' to maintain
their predecessor's stance. Mr. Holder has also begun a review of every open
Bush-era case involving state secrets, Mr. Craig said, so people should not read
too much into one case.

'Every president in my lifetime has invoked the state-secrets
privilege,' Mr. Craig said. 'The notion that invoking it in that case
somehow means we are signing onto the Bush approach to the world is just an
erroneous assumption.'"

To me, this isn't just about triangulation anymore. The Obama DoJ wants this case tossed out and wants to hide the details of the extraordinary rendition flights conducted by Jeppesen. They do actually think this is justified and necessary. We've heard all their B.S. but it seems like reality is that the Obama DoJ wants to continue down the tyrannical path of the Bush DoJ. And now that the Obama DoJ is justifying their position not in terms of "we need further review," but in terms of "we need this for national security," it is hard to imagine how they even could reverse their position. National security in their eyes was endangered yesterday, but not today? In front of this court, but not the next? Now reversing their position would be political suicide.

It is time to hold Obama accountable.

[Crossposted at TalkLeft]

Binyam Mohamed & UK Scandal

2009-02-17T13:38:00.002-05:00

An editorial from Louise Christian in response to revelations that the UK Foreign Office requested the "threatening" letter from the US State Dept was published in the Guardian today. The sleight of hand here raises some very serious questions for citizens of both the UK and the US. How much B.S. are you willing to accept from your government? At some point, a citizen's shell games - guessing what the government is really up to, anticipating, using your political intelligence, speculating on a blog - need to be abandoned. If we are to trust our governments, with all their magnificent checks and balances, at all, the documents detailing Binyam Mohamed's treatment must be published. We need to demand accountability and information. Our taxes pay for Guantanamo. Our taxes pay for torture flights. But we allow ourselves to be duped by the government as regards what is actually happening - and we allow ourselves to be duped by the intelligence community, as to what their budget is spent on. The effort to hide torture, driven by political elites, is poisoning our political system. Bush, Cheney, and Rumsfeld deserve to feel at least the risk of a trial for their crimes.

Anyway, Christian's article:

The court's agreement to reopening consideration of whether the documents about Binyam Mohamed should be disclosed came before the further revelation that the US government had only written the letter containing the "threat" at the request of the Foreign Office. Even if, as the prime minister's office tried to claim yesterday, the request was simply to confirm the known position of the US government, there is a very nasty smell about it. The judicial review of the failure to prosecute BAE for bribery was halted because of a similar "threat" from the Saudi government. We cannot help but wonder if such threats are now seen by governments as their alibi for avoiding the rule of law.

Obama needs to make good on his promises to make government more transparent - and do so when it matters (Mohamed et al v. Jeppesen). Deeds, not words. Otherwise they risk what seems to me to be a monumental loss of faith not just in US politics, but in US law.

Binyam Mohamed & Government Cover-Ups

2009-02-16T20:25:00.010-05:00

This is news:

"Mohamed claims he confessed to being a terrorist only after he was
brutally abused and tortured, and that both American and British intelligence
officers were at least complicit in the torture.

Lt. Col. Bradley says there is evidence to support his claims of torture
and that it is in 42 classified documents held by the British government.

Mohamed's lawyers and British media have sued in the British High Court to
make those documents public.

The British - and American - governments are fighting that on national
security grounds. As the British Foreign Secretary David Miliband told
Parliament that Britian's intelligence relationship with the United States is
vital to the security of the United Kingdom.

'It is essential that the ability of the U.S. to communicate such material
in confidence to the UK is unaffected,' Miliband said.

Miliband pointed to a letter received from the U.S. State Department,
authored by The Legal Advisor, John Bellinger III, on Aug. 21, 2008, to bolster
his argument. The letter said, '…the public disclosure of these documents or of
the information contained therein is likely to result in serious damage to U.S.
national security and could harm existing intelligence information arrangements
between our two governments'.

That last sentence was interpreted as a threat by the British media and by the British High Court, which ruled that Mohamed’s lawyers, with security clearances, could have access to the documents, but that they must not be made public. The court harshly criticized the American government for what it characterized as U.S. interference in British affairs.

But a former Bush administration official with specific knowledge of the
case, who requested anonymity, has told CBS News the letter was written at the request of the British government and that both the U.S. and British government wanted to ensure the documents remained secret. The British Foreign Office declined to comment on the record.

The British court also said the documents contained 'evidence of serious
wrongdoing by the United States which had been facilitated, in part, by the UK
government.'

Lt. Col. Bradley has a security clearance, and has seen the documents. She
cannot say what's in them. But she did say, 'this is not a matter of national
security, this is a matter of national embarrassment. The U.S. and other
countries may not want to be embarrassed by what happened to Mr. Mohamed and the full story and information and account coming out of what happened to Mr.
Mohammed.'

The British government’s public position on torture has always been that it
does not practice or condone it. The existence of the letter, and the court’s
statement, raise the question of what the British knew about torture in
Guantanamo and other secret prisons, including some run by the CIA, when they
knew it, and what, if any, concerns were raised with the American
government." [emphasis supplied]

That's a lot of funny business to end court proceedings. It's possible this "former Bush administration official" providing the quote just wants to throw a wrench into the new Administration. But it seems just as likely that this screams COVER-UP. And what role is the Obama Administration playing now? The British requested, from Bush, a letter that would cover their @sses - and Obama, joining this cover-up game, thanks the British for their compliance?

The letter was deceptive, the threat apparently a lie.

Time to make a stink.

Update: Let's go over this one more time. From the BBC:

"The judges said they wanted the full details of the alleged torture to be
published in the interests of safeguarding the rule of law, free speech and
democratic accountability.
The details, believed to amount to just seven paragraphs, relate to the circumstances of Mr Mohamed's detention and his treatment while he was being held.
But they said they had been persuaded it was not in the public interest to do this due to the potential impact on UK national security of US stopping intelligence sharing.
By doing so, the US government could 'inflict on the citizens of the UK a very considerable increase in the dangers they face at a time when a serious terrorist threat still pertains', they said." [emphasis supplied]

The entire basis for the court's decision to block the publication of the documents detailing Mohamed's treatment was a lie. Kind of sounds like somebody should get in trouble for this, no?

More from the BBC article:

The Conservatives said the ruling raised 'serious questions' and urged ministers
to make a statement on the issue on Thursday.
'No British government should participate in or condone torture under any circumstances,' said shadow foreign secretary William Hague.
'We hope that the new US administration will look again at this decision, particularly since the judge concerned that there were no security reasons for the material not to be made public.'"

These documents should be released and published immediately. It seems like they are now but the beginning of a much broader scandal.

Update 2: The British press is all over this story, and confirms the account of the former Bush Administration official. Guardian, Telegraph. And here, a second story from the Guardian:

"The shadow foreign secretary [William Hague] wrote to David Miliband
demanding urgent clarification on a number of specific allegations about whether
the UK was complicit in the mistreatment or torture of Guantánamo detainee
Binyam Mohamed.

The move followed reports that a Foreign Office official solicited a
letter from the previous US administration asserting that the disclosure of
information relating to Mohamed's detention would harm the intelligence sharing
relationship.

Today Downing Street rallied to Miliband's defence, insisting that the
Foreign Office had merely asked the US to 'set out its position in writing' when
it solicited a letter for the American authorities to back up its claim that, if
the evidence was disclosed, Washington could stop sharing intelligence with
Britain.

The claim persuaded two high court judges earlier this month to
suppress what they called "powerful evidence" relating to the ill treatment of
Mohamed, a British resident being held in the US's Guantánamo Bay
detention camp in Cuba."

So IOW...the Foreign Office asked the United States to threaten them, in writing?

"'The Foreign Office has made clear that they asked the US to set out their
position in writing for us and the court,' a spokesman for Gordon Brown
said.

In response to the British request, John Bellinger, the US state
department's chief legal adviser, said in a letter to the Foreign Office last
August: 'We want to affirm the public disclosure of these documents is likely to
result in serious damage to US national security and could harm existing
intelligence information-sharing arrangements between our two governments.'"

The case will be reopened next month, due to previous conflicting claims on the part of the UK - in one hand, Miliband carries the manufactured August threat letter of Bellinger, on the other hand he denied that the US threatened to stop sharing intel with the UK. It's hard to imagine that the high court judges will continue to surpress this evidence. After all, their basis for doing so just disappeared. Unless the United States would like to continue the charade of empty threats vis-a-vis intelligence sharing, and Britain would like to comply, I think it's game over. Though currently in the process of getting screwed by the Obama DoJ stateside, (Mohamed et al v Jeppesen), it seems like Binyam might score a victory in the UK. Perhaps, a victory in the UK might encourage the Ninth U.S. Circuit Court of Appeals to reject the state secrets privilege claim of the Obama DoJ. Let's hope so.

Time Is Of The Essence - Close Gitmo Now

2009-02-14T17:52:00.007-05:00

You know, sometimes it amazes me that the Obama transition team, widely hailed for getting its act together quickly and being well-organized and efficient, is now dragging its feet on a number of truly life-or-death issues relating to torture and Guantanamo. They have begun their review of the detainee case files there - but it is completely unclear as to what the conditions are at Guantanamo now. If Lt Col Yvonne Bradley's account is true, the prison guards should be behind bars for the way they are STILL treating detainees. If they're still operating under Bush policy, these abusive guards are now, simply enough, criminals (seriously, this is pretty cut and dry)- and we should be able to read about their arrests in the papers. So where are those stories? When will the Obama administration's so-called commitment to transparency and accountability include letting us know if detainees are being treated humanely? When do the human rights monitors go in - or when is some type of team dedicated to investigating prison guard misconduct announced, assembled, and put to work? There is no reason why the situation at Guantanamo should be so vaguely presented to Americans. Saying "give Obama time, it's only been x number of days" is an inadequate response.

While Obama & co. fiddle around in Washington, their legal representatives in the Justice Department have taken recent steps elsewhere that suggest the review of Guantanamo detainees will not result in real, fair criminal trials for detainees. Is the same Obama DoJ that wants Mohamed v. Jeppesen Dataplan, Inc. dismissed for state security reasons going to allow fair trials of Gitmo detainees? At present, the logical answer to that question is no. Get ready for that fight.

The key to ending torture is not waiting on Obama. Hell, in two years, he will be facing a Republican opponent and readying for re-election. He will doubtless be challenged on each of his anti-torture policies, and it seems likely (based on today's GOP, anyway) that a Republican administration open to "coercive interrogation" will be presented as an alternative to whatever he does. We aren't out of the woods yet. What we need to do is push for legislation that is more effective than Obama's executive orders. There must be a concerted outcry each time Obama reverts to Bush policies, like unnecessarily invoking the state secrets privilege.

We can and should support Obama when he is right. But right now, he is going too slowly to be right - we must press him to be faster. Some Obama supporters may not yet feel comfortable protesting his administration - but trust me, he needs the pressure and our country needs to keep the torture/war crime discussion in the forefront.

Greg Bruno has a Gitmo overview here.

Who is Lt Col Yvonne Bradley?

2009-02-13T20:33:00.005-05:00

Binyam Mohamed's lawyer has attracted attention in recent days, as she visits the UK to make the case for Mohamed's' immediate release from Guantanamo.

Here are two articles on Lt Col Bradley - McClatchy and BBC. Some snippets from McClatchy:

"Bradley, 45, who calls herself 'a lawyer and a soldier' and a 'lifelong
Republican,' told McClatchy in an interview that she blames the Bush
administration for Mohamed's arrest and for his treatment in captivity. Asked if
she thinks her client is innocent, Bradley replied that he 'was in the wrong
place at the wrong time.'

'If 9/11 never happened, this whole series of events would never have
happened,' Bradley said. 'This was an experiment that failed. It is a shame and
a legacy that will follow (the United States) in its history.'

...

Her views have changed dramatically since she joined Mohamed's legal team
in 2005. She said that when she was assigned to his case, she was 'a true
believer' in America's campaign against terrorism.

Bradley recalled that after she got a call to defend Mohamed at
Guantanamo Bay in 2005, she was ready to shut down her law practice in suburban
Philadelphia. 'I knew these were war crimes,' she said of the charges against
her client.

Then she received orders that her assignment would last 90 days. 'That
should have been my first warning that something was wrong,' she said. 'I can't
try a small possession of marijuana (case) in 90 days, let alone a major war
crime.'

When Bradley first visited Mohamed at Guantanamo Bay, she recalled, she
was 'scared,' although as a federal public defender she'd represented a serial
killer and other murderers on Death Row. 'I believed my government when they
told me he was a terrorist,' she said.

A review of Mohamed's charge sheet raised more questions. 'I was waiting
for the blood on his hands, the trigger finger, links to the dirty-bomb plot,'
she said. Instead, over time, she came to believe that 'his story was all spun
out by the CIA' after Mohamed was held in several countries, including
Afghanistan and Morocco — and, he alleges, tortured.

Bradley's defense of Mohamed has ruffled feathers and nearly landed her
in trouble."

Lt Col Bradley's dedication and ability is a testament to the potential of our legal system. Our refusal to try terrorist suspects in our existing criminal justice system discredits the work people like Lt Col Bradley do. And want to do.

We need more people like her - and we are not going to get them if we set up a separate criminal justice system for terrorist suspects, if we continue to invoke the state secrets privilege to completely dismiss cases that might reveal government corruption and criminal behavior.

We need to change course, drastically. Jerrold Nadler's legislation is a good step. The best step, of course - to investigate and prosecute Bush, Cheney, and Rumsfeld.

Glenn Greenwald's Answer to "A Few Weeks"

2009-02-11T10:18:00.003-05:00

I asked below if Obama will change his mind in a few weeks on invoking the state secrecy privilege vis-a-vis Mohamed et al. v. Jeppesen. Glenn Greenwald says today, more or less, are you kidding me? To quote:

What makes Ambinder's uncritical, mindless, one-sided recitation
particularly galling is that the excuses he is passing on for the Obama DOJ's
behavior are so patently frivolous. Let's just consider each of them in
order:
1. The Obama DOJ, and Eric Holder specifically, had insufficient time to review the issues here and therefore embraced the pending Bush position as a "holding pattern."

I'd be willing to bet that 90% of non-lawyers know what parties do in
situations when there is a court deadline approaching and, for whatever reasons,
they need more time. The Obama administration has certainly shown in
the past that they know what to do:

"President Obama’s Justice Department is asking a federal judge
for at least two more weeks to answer the thorny question of who is and
who isn’t an 'enemy combatant.'

In a filing in federal court in Washington Wednesday, government lawyers asking for the delay cited Obama’s inauguration last week and the executive order he signed ordering a review of the cases of the roughly 245 war-on-terror detainees presently held at Guantanamo Bay. . . .

'The Government is now assessing how it will proceed in the above-captioned Guantanamo Bay detainee habeas corpus cases, in light of the change in Administrations and the requirements of the Executive Order,' Justice Department lawyers wrote in their new motion. 'Time is needed to make that assessment and determination. Accordingly, the Government requests a two-week extension…to allow the new Administration to assess the Government’s position in this matter.'

Or this:

"In his one of his first acts in office yesterday, President Barack Obama instructed prosecutors to seek 120-day delays in all cases now before U.S. military tribunals at Guantanamo Bay in Cuba while his administration evaluates the situation."

If, as Obama's Atlantic spokesman claims, this were really the problem
-- that the Obama DOJ needed more time to review what they wanted to do --
then the solution is easy and obvious: you ask the court for more
time. You don't march into court and explicitly advocate a Bush weapon
that you've spent the last several years excoriating as a dangerous abuse of
power -- thus risking that this tyrannical weapon becomes judicially approved
and torture victims forever denied the right to a day in court.

Greenwald goes through the litany of other reasons why the use of state secrecy privilege is unnecessary here, but this I thought was most important - calling out the Obama administration on their bullshit. "Pledges" to "ask for secrecy 'only in legally appropriate situations'" are worthless, as are statements by DoJ spokespeople.

A little scary no?

A Few Weeks

2009-02-10T11:28:00.003-05:00

From the LA Times:

At the same time, Justice Department officials in Washington pledged to
review all cases in which the Bush administration invoked the right to protect
state secrets and pledged to ask for secrecy "only in legally appropriate
situations."

The Obama administration's assertion of the so-called state secrets
privilege in a San Francisco courtroom -- the first instance since President
Obama took office -- reflected the continuing debate among national security and
Justice officials about what clandestine operations should be shielded from
public scrutiny.

...

The randomly drawn appeals court panel, consisting of three Democratic
appointees, appeared skeptical of the government's claims."I can understand the
government saying we have secrets and you the court can't pry them open," said
Judge William C. Canby Jr., a Carter appointee. But noting that disclosure of
rendition details has been made in other litigation, Canby said of the Jeppesen
case, "So what?"

...

The American Civil Liberties Union, which brought the suit on behalf of the
five terrorism suspects, told the 9th Circuit panel that there was no basis for
branding the entire case secret and urged the judges to allow trial.

ACLU lawyer Ben Wizner said foreign governments have been "very open" about
their roles in the covert operations. By permitting a trial, "the court is not
exposing the government to any harm," he told the judges.

"The notion that you must close your eyes and ears to what the whole world
knows is absurd," Wizner said.

A federal trial judge ruled in favor of the Bush administration last year
and dismissed the suit. The ACLU appealed to the 9th Circuit, arguing that the
men should be given the opportunity to prove their case without classified
material.

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

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

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

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

Judge Mary M. Schroeder, a Carter appointee, said the court had not yet
read the classified information about the government's case and noted that the
law "may really preclude" the court from permitting the case to go to
trial.

A ruling is not expected for several weeks.

You think Obama will change his mind in a few weeks?

Devil in the details [updated]

2009-02-09T22:12:00.004-05:00

From Democracy Now (h/t Invictus):

Scott Horton: "Of course, the proof is in the details. I mean, we’re going
to have to see how these rules actually are applied by the CIA, and we’re going
to have to look and see how the commitment not to render torture is applied. The
legal standard is that someone cannot be rendered if it is more likely than not
that the person would be tortured. We saw in the last administration all sorts
of evasions used to get around that. I think we see a break in these executive
orders, but we’re going to have to see, on the basis of individual cases, how
these orders are understood and implemented."

Panetta, Confirmation Hearing, Feb 5 2009:

"If we had the ticking bomb situation and I felt that whatever we were
using wasn't sufficient, I would not hesitate to go to the president and request
any additional authority that we would need."

There's your details - the loopholes were there for a reason. More details:

The Obama administration will not prosecute CIA officers who participated in
harsh interrogations that critics say crossed the line into torture, CIA
Director-nominee Leon Panetta said Friday.
Asked by The Associated Press if that was official policy, Panetta said, "That is the case."
It was the clearest statement yet on what Panetta and other Democratic officials had only strongly suggested: CIA officers who acted on legal orders from the Bush
administration would not be held responsible for those policies. On Thursday, he
told senators that the Obama administration had no intention of seeking
prosecutions for that reason.
Panetta, in an interview with the AP after a second day of confirmation hearings with the Senate Intelligence Committee, said that he arrived at that conclusion even before he began meeting with CIA officials.
"It was my opinion we just can't operate if people feel even if they are following the legal opinions of the Justice Department" they could be in danger of prosecution, he said.

So before Panetta met with CIA officials, or had read the memos and internal documents dealing with the work done by the CIA for the executive government...he says, investigation and prosecution is off the table. Details, details.

More details to consider:

"Panetta told the committee that the Obama administration will continue to hand
foreign detainees over to other countries for questioning, but only if it is
confident the prisoners will not be tortured in the process.
That has long been U.S. policy, but some former prisoners subjected to the process — known as 'extraordinary rendition' — during the Bush administration's anti-terror
war contend they were tortured. Proving that in court has proven difficult, as
evidence they are trying to use has been protected by the president's state
secret privilege.
'I will seek the same kind of assurances that they will not be treated inhumanely,' Panetta said during his second day before the Senate Intelligence Committee. 'I intend to use the State Department to be sure those assurances are implemented and stood by, by those countries.'
Some critics worry that any gray area in delineating policy on renditions could allow for abuses."

How is what Panetta says here at all different for what we ripped John Brennan for saying?

From Glenn Greenwald:

"Then there is Brennan's December 5, 2005 appearance on The News Hour
with Jim Lehrer, in which he vehemently defended the Bush administration's use of rendition -- one of the key tools to subject detainees to torture:

'JOHN BRENNAN: I think over the past decade it has picked up some
speed because of the nature of the terrorist threat right now but essentially
it's a practice the United States and other countries have used to transport
suspected terrorists from a country, usually where they're captured to another
country, either their country of origin or a country where they can be
questioned, detained or brought to justice. . . .
MARGARET WARNER: So was Secretary Rice correct today when she called it a vital tool in combating terrorism?
JOHN BRENNAN: I think it's an absolutely vital tool. I have been intimately familiar now over the past decade with the cases of rendition that the U.S. Government has been involved in. And I can say without a doubt that it has been very successful as far as producing intelligence that has saved lives.
MARGARET WARNER: So is it -- are you saying both in two ways -- both
in getting terrorists off the streets and also in the interrogation?
JOHN BRENNAN: Yes. The rendition is the practice or the process of rendering somebody from one place to another place. It is moving them and the U.S. Government will frequently facilitate that movement from one country to another. . .
Also I think it's rather arrogant to think we're the only country that respects human
rights. I think that we have a lot of assurances from these countries that we
hand over terrorists to that they will, in fact, respect human rights.
And there are different ways to gain those assurances. But also let's say an
individual goes to Egypt because they're an Egyptian citizen and the Egyptians
then have a longer history in terms of dealing with them, and they have family
members and others that they can bring in, in fact, to be part of the whole
interrogation process.'

Even when CBS News -- for which Brennan was serving as an intelligence analyst -- was reporting on the dreadful case of Maher Arar, the Canadian citizen whom the
Bush administration abducted at JFK Airport and rendered to Sryia for 10 months
to be tortured only for it to then be revealed that he had no connection whatsoever to terrorism, Brennan was defending the rendition program:

'CBS NEWS: Despite Arar's experience, this former counterterrorism official says
"rendition" does have its place.
Mr. JOHN BRENNAN (CBS News Terrorism Analyst, Former Director, National Counterterrorism Center): I think it allows us to have the option to move a person who is involved in terrorism or terrorism-related activities to a country where they can be effectively questioned or prosecuted.'"

As Greenwald himself put it, the centerpiece of the anti-Brennan argument was "his emphatic advocacy for rendition and 'enhanced interrogation tactics.'"

At present, we have a CIA Director willing to seek "additional authority" in interrogations - despite the fact that the current Army Field Manual approves tactics that can amount to torture. Based on Obama's executive order Ensuring Lawful Interrogations, you might be able to argue, as based on this post, one thinks BTD might, that Appendix M is nothing to worry about - if Appendix M is only applicable to 'unlawful combatants,' as the Center for Constitutional Rights says, then Obama's prohibition against relying upon interpretations of the law "issued by the Department of Justice between September 11, 2001, and January 20, 2009" means 'unlawful combatant' is no longer a category for any detainee. Unless Obama's DoJ restores the category, Appendix M means nothing. [UPDATE: Even if Obama were to maintain the status of unlawful combatant for detainees, they would still under the Geneva Conventions be covered - they could not be subjected to physical or moral coercion, nor "tortured either psychologically or physiologically" - Jane Mayer "The Dark Side" p.83 ]

But why then does Panetta say he will without hesitation seek additional authority, if needed? He believes he will be rejected, but we learned today that the Obama Administration is invested in preserving at least some of Bush's legal labyrinths. In Daphne Eviatar's words, "the new administration today stood up in a federal appeals court and reiterated the Bush administrations’ arguments that victims of 'extraordinary rendition' and torture should not be allowed to bring their claims in federal court because doing so would reveal 'state secrets' and harm national security."

Where does it end? If the Obama administration wants to preserve massive amounts of executive power, we will not escape from the shadow of torture. Torture could be, torture could not be. It's the executive branch's call.

What does the Obama administration expect? That four years of a Democratic presidency will get us all "used to" not relying on torture? It'll just go away? If you don't punish the people that brought us here, illegally, how is it that it will go away?

If the Obama administration wants to cover its anti-torture bases, it has to do better. Since Obama issued his executive orders, things have all been downhill. Conditions worsening in Gitmo. State secrecy preserved. A once strongly anti-torture CIA nominee within steps of being confirmed, claiming in the same language used by past torturers by proxy that he will "gain assurances;" an almost newly minted CIA Director saying he will ask for additional authority if necessary.

If the plan is to render detainees to third countries, where they can be tried, the plan is not necessarily a good one - as former CIA Michael Scheuer says, “What was clever was that some of the senior people in Al Qaeda were Egyptian.” Ok...so Egypt has an oustanding warrant for these people. What on God's earth are we going to do to get them not to torture? The US legal system allows for renditions into itself - and these renditions are already against international law. We can arrest via "extraterritorial jurisdiction."

The anti-torture left needs to call for immediate clarification into Obama's policy regarding torture. Bush bastardized our language. If you're not going to prosecute, at least let us know in clear words your intentions.

Or I guess we can keep getting surprised, as we were today with the Obama admin's support of state secrecy. But that won't do a damn thing.

Something New

2009-02-09T14:07:00.002-05:00

My past three posts have been on the same statement by Leon Panetta - that he would with no hesitation seek "additional authority" from the President if he thought it was required in a "ticking time bomb" situation.

Later I want to address Jeff Stein's blog post up now, Former Head of CIA's Bin Laden Unit Contradicted Panetta Testimony. The contradictory testimony of Michael A. Scheuer is here. There are quite a few interesting pieces of testimony (some of it demonstrably false), for example when Scheuer says "I have said that I personally don’t think that torture is a very good idea in terms of getting information. I also said that I don’t care if it happens."

To which Representative Markey replies:

Mr. MARKEY. I appreciate that. You know, Wernher von Braun used to say, you
know, my job is to get the missiles in the air. Where they come down is not my
responsibility. And so I mean taking that approach of course has a certain
exculpatory—self-exculpatory—but it doesn’t in and of itself, though, deal with
the essential, you know, theological question here, which is whether or
not a moral wrong is being engaged in.

It's not a new struggle.

Falling Short: Panetta Wavers on Torture

2009-02-09T10:12:00.001-05:00

Just a few weeks ago, liberals hailed the selection of Leon Panetta for Director of the CIA - mcjoan described him as "a[s] much of a departure from torture as you could want." It looked like the ticking time bomb hypothetical was on its way out. Obama at the announcement of Panetta for D/CIA said "We must adhere to our values as diligently as we protect our safety with no exceptions."

Unless, that is, someone asks us a hard question in a confirmation hearing.

Panetta said a few problematic things at his confirmation hearing - he suggested that in performing renditions, we will continue to "seek assurances" of humane detainee treatment from the third country receiving the detainee - a process that has been largely discredited (basically, if you render someone to Egypt, it is highly doubtful they will be treated humanely - as we know, John Brennan tried that line). Panetta also suggested prolonged detention for some detainees. But this is the comment I want to focus on. From The Guardian:

Pressed by Democrat Ron Wyden of Oregon about a "human ticking time-bomb"
scenario, in which a terrorist knows of an imminent attack on the US, Panetta
said he believed torture would not be necessary to extract information.
"I'm of the view that when you look at the FBI and the US military, that they have
been able to show that it is possible to get the information that's needed to
protect our nation's security," he said.
However, he added: "If we had the ticking bomb situation and I felt that whatever we were using wasn't sufficient, I would not hesitate to go to the president and request any additional authority that we would need." [emphasis supplied]

"Would not hesitate!" "Any additional authority we would need." Hey, thank goodness our intelligence agencies are so thoroughly anti-torture and would never recommend something like that, huh? What Panetta said, IOW, is torture may not be necessary, but the door is open. To me, this isn't change. This makes the fear of loopholes in Obama's executive orders meaningful. For example, from his executive order Ensuring Lawful Interrogations:

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

This is what Panetta is referring to. In a letter to Sen. Leahy, former AG Michael Mukasey laid out the process by which waterboarding could be reapproved - the D/CIA would determine it was necessary, the AG would find it lawful or unlawful, and the President would have to approve. This process has apparently been kept in place by the Obama administration.

Something's got to give. That three people (and two of those political appointees of the President) can change the torture policy of the United States so freely is disturbing to me. I don't see how we end torture permanently with this process of legal authorization in place.

I wouldn't be so worried about it if Obama was more eager to prosecute Bush for dropping us in a moral abyss and instituting US torture policy. If arrest, investigation, and prosecution of Bush administration officials isn't in the cards, then there's no consequence for ordering torture, and no incentive to do otherwise. The road to breaking away from torture in a lasting, meaningful way is much more difficult if we let Bush off scot-free.

I wish Obama would realize this, and act accordingly.

[cross-posted at TalkLeft]

Panetta's Answers

2009-02-08T18:36:00.004-05:00

While Obama's selection of Leon Panetta for CIA Director was initially hailed by liberals as a rather impressive move, it appears that we all should've waited for Panetta's confirmation hearing to get too excited. The Panetta who wrote that "there is no middle ground" on torture issues said at his hearing “If we had a ticking bomb situation, and obviously, whatever was being used I felt was not sufficient, I would not hesitate to go to the president of the United States and request whatever additional authority I would need.” The man who wrote "We are sworn to govern by the rule of law, not by brute force" trotted out the same tired BS used to make the US seem to have clean hands when it comes to renditions - from the LA Times:

"The agency no longer will send prisoners to its own secret detention
sites, which are being closed, Panetta said. But, 'there is a second kind of
rendition, where individuals are turned over to a country for purposes of
questioning,' he said. 'There were efforts by the CIA to seek and to receive
assurances that those individuals would not be mistreated.'
Panetta made clear that those renditions would continue, largely unchanged from Bush-era policies."

Panetta's willingness to waver on these issues - and commitment to asking for legal authorization of coercive interrogation if he wants to - is nothing like an end to torture. The Obama administration reserves the right to revert to the past. Panetta's wavering points us to structural problems in the process by which torture is authorized that make it difficult to end torture for good in the US.

The first issue, as I see it, is that the decision to torture rests with three people - the President, the D/CIA, and the AG. The process former AG Mukasey described in a letter to Sen. Leahy (read here) still exists. Obama's executive order does nothing to alter this -

"There is a defined process by which any new method is proposed for
authorization. That process would begin with the CIA Director's determination
that the addition of the technique was required for the program. Then, the
Attorney General would have to determine that the use of the technique is lawful
under the particular conditions and circumstances proposed. Finally, the
President would have to approve of the use of the technique as requested by the
CIA Director and as deemed lawful by the Attorney General."

And in fact reinforces it (from the Executive Order Ensuring Lawful Interrogations):

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

Three people in the US government can change torture policy, whenever they so choose. And our national lack of interest in prosecuting Bush shows those in power that they have nothing to fear if they do choose to torture. We will defend poorly written legal opinions - as Panetta did - as long as they come from the people in the right positions inside the halls of power.

Vesting three individuals with the power to abuse and torture detainees is not an effective end to torture. We must agitate for:

1. transparency. As a state Senator, Obama pushed for a law requiring all police interrogations to be videotaped. This would be a great device by which to ensure our operatives are in compliance with the law.

2. prosecutions. Sorry, my faith in "the rule of law" has been kind of busted over the past 8 years. The efforts people in the Obama administration have been making to legitimize Bush policy and Bush legal opinion give me little confidence in their commitment to the rule of law - for example, Panetta: “Those individuals operated pursuant to a legal opinion… [and they] ought not to be prosecuted or investigated, [since] they acted pursuant to the law as it was presented by the attorney general.” Protecting Bush legal opinions only makes me wonder if you are doing so to preserve that type of power for yourself, in the future. Investigations and prosecutions of our little band of torturers are necessary to dispel these doubts.

3. new process. I believe that a law must be passed in Congress providing for the use of the AFM, minus its coercive provisions and Appendix M, in all of our federal agencies. Executive orders - which can be reversed at will - are not sufficient. Let Congress pass a law dictating anti-torture interrogation policy - and when a President wants to go against it, they can have it out in the courts. The right wing isn't going anywhere - and I do not want to see them undo Obama's executive orders (nor do I want to see Obama undo his own orders) in 2012, or 2016. Whether we torture or not should not be a political question - D/CIA and AG are both political appointees, and the President is of course elected.

There is much, much more to be said about Panetta's confirmation hearing. Guantánamo has apparently gone to shit: see Invictus and TalkLeft. Who in the Obama administration is going to step up and enforce the executive orders? Because this:

"But first, Bradley, a US military attorney for 20 years, will reveal that Mohamed, 31, is dying in his Guantánamo cell and that conditions inside the Cuban prison camp have deteriorated badly since Barack Obama took office. Fifty of its 260 detainees are on hunger strike and, say witnesses, are being strapped to chairs and force-fed, with those who resist being beaten. At least 20 are described as being so unhealthy they are on a 'critical list', according to Bradley."

Does not sound like this:

(a) Common Article 3 Standards as a Minimum Baseline. Consistent with the requirements of the Federal torture statute, 18 U.S.C. 2340-2340A, section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd, the Convention Against Torture, Common Article 3, and other laws regulating the treatment and interrogation of individuals detained in any armed conflict, such persons shall in all
circumstances be treated humanely and shall not be subjected to violence to life
and person (including murder of all kinds, mutilation, cruel treatment, and
torture), nor to outrages upon personal dignity (including humiliating
and degrading treatment), whenever such individuals are in the custody or
under the effective control of an officer, employee, or other agent of the
United States Government or detained within a facility owned, operated, or
controlled by a department or agency of the United States.

(Force-feeding detainees has also been described here, amongst other places).

There needs to be immediate action on the part of the Obama administration to investigate these allegations and prosecute those who continue to mishandle detainees. The conduct of the Joint Task Force at Guantánamo appears to be in flagrant violation of US law.

Update - Sorry, That's Not Exactly Anti-Torture: Panetta on the Ticking Time Bomb

2009-02-05T15:32:00.004-05:00

We are in the "ticking time bomb" section of Panetta's confirmation. I will provide exact quotes when the transcript appears on the Senate Intelligence Committee site later. But he basically said, in a ticking time bomb situation, if he felt the techniques were not working, he would go to the President to seek additional authority. But he didn't think the President would go beyond the law.

So that's just greeeaaat. This is a perfect argument for passing a law in Congress that codifies the use of a standard - something like the Army Field Manual without Appendix M and other loopholes - that governs all interrogations in every agency. Maybe this will light the fire under Senator Feinstein's feet and she'll get her much talked about law passed. From the Media Matters link:

FEINSTEIN: I've met with Greg Craig about the executive order on two
occasions now. The Intelligence Committee will be providing oversight over it.
And, as you know, I have a bill to close Guantánamo, to end contractors doing
interrogations, to have one standard across -- which is the Army Field Manual --
the executive order coalesces with this bill. And we need time to really address
the fine points of the executive order and see if it's sufficient or if we need
to codify some of this.

Of course it's not sufficient. If the President can reverse it overnight (and he can), an executive order against torture is not sufficient.

Update: I did hear correctly. A quote from The Guardian:

"Pressed by Democrat Ron Wyden of Oregon about a 'human ticking time-bomb'
scenario, in which a terrorist knows of an imminent attack on the US, Panetta
said he believed torture would not be necessary to extract information.
'I'm of the view that when you look at the FBI and the US military, that they have
been able to show that it is possible to get the information that's needed to
protect our nation's security," he said.
However, he added: 'If we had the ticking bomb situation and I felt that whatever we were using wasn't sufficient, I would not hesitate to go to the president and request any additional authority that we would need.'" [emphasis supplied]

As someone from the "no torture, no exceptions" school, I find this appalling. It's an opening for those in our country who like torture. Under the current structure, the CIA would have to request that kind of authority from the President and also the AG. And that power nexus is a little scary. That's one of the reasons I posted a few days ago on Mukasey's letter to Sen. Leahy. The power to torture is in the hands of three US government officials.

But note that to approve a torture technique the "Attorney General would have to determine that the use of the technique is lawful under the particular conditions and circumstances proposed." In this era where Bush, Yoo, Cheney and Gonzales look like they might get away with all of it, that is a particularly awe-inspiring power. After all, the law is anything you want it to be. We need to prosecute Bushco so that we can limit that sort of fantasy interpretation of the law. Our laws are weakened by a refusal to investigate and prosecute our big name criminals.

Conflicts of Interest & the Intel Community

2009-02-05T13:34:00.004-05:00

In anticipation of Leon Panetta's confirmation hearing today, questions have been raised in the media about Panetta's business relationships and finances. In the context of Obama's rules and the recent problems with Daschle and others, these may present a problem for Panetta. The AP runs a story with details - and Mark Silva at The Swamp has even more information. The most interesting charges to me are these: "a $28,000 honorarium from the Carlyle Group" and "a $60,000 'governmental advisor fee' from the Pacific Maritime Association."

Mark Silva has a quote from the Carlyle Group: "Chris Ullman, told Bloomberg that Panetta spoke at an annual investors' conference, 'which is unrelated to any of our portfolio companies,' such as Booz Allen Hamilton, an intelligence contractor for the government."

Well, we shall see how true that is. I'd like to see the topic of discussion, a list of the investors' present, etc.

Silva also says the Pacific Maritime Association "lobbies the federal government on terrorism laws." Although my knowledge of which laws the PMA is trying to influence is nonexistent, a look at their organization suggests they would be very homeland-security specific. Their site says "The principal business of the Pacific Maritime Association is to negotiate and administer maritime labor agreements with the International Longshore and Warehouse Union.
Our member companies are cargo carriers, terminal operators and stevedores that operate at West Coast ports, where overall cargo movement supports 8 million U.S. jobs." PMA is not, for example, a defense contractor. Questions should be asked of course.

Now let's compare Panetta to the candidate scorned, John Brennan. I have documented in various posts his extremely intimate dealings with intelligence businesses. And by extremely intimate, I mean that in November of 2008 he was still the CEO of The Analysis Corp., an intelligence contractor! And not only that, as of November 2008, Brennan was the chairman of the most influential trade association in intelligence contracting - the Intelligence and National Security Alliance! Read more about TAC (The Analysis Corp.) and INSA here and here.

To excerpt from my diary at Talkleft on INSA:

"INSA's joint programs with the DNI have alarmed some intelligence veterans, who
wonder if INSA has become a way for contractors and intelligence officials to create policy in secret, without oversight from Congress. 'Evidently, DNI McConnell has made it an early priority to stand up INSA as the preeminent nonprofit association serving the ODNI,' an industry insider told me, on condition of anonymity. 'While INSA has created multiple levels of memberships and a large connected board of both government and industry leaders, the real control remains with the big-dollar founding primes. I wonder if it's even legal for these officials to sit on an actual board of an industry trade association.'

"That is not entirely clear. Scott Amey, the counsel for the Project on Government Oversight, a public interest group that monitors federal contracting, said the DNI's relationship with INSA certainly raises serious ethical questions. If government officials are attending INSA meetings on a regular basis, he said, those meetings may be subject to open meeting rules, which would require them to be open to the public. The fact that contractors and intelligence officials are meeting under the cover of a business association - despite the fact that they are supposedly there as individuals - points to the need to expand the oversight of intelligence to include contracting." Tim Shorrock, "Spies for Hire," p.70-71 [emphasis supplied]

Now that's a real scandal. This may be why Brennan actually stepped away from the D/CIA position. Who knows. But I am glad at least that Panetta is farther removed than Brennan from this culture which made big bucks on the Bush terror regime.

Obama's Laws

2009-02-05T12:00:00.000-05:00

Although Obama's executive orders pertaining to rendition may permit such renditions as would violate international law (in other words, renditions outside of extradition agreements - see Valtin's comment to this post), those orders are presently domestic law.

Therefore, they would be binding upon all renditions performed. So when Spencer Ackerman writes today, of the Panetta nomination:

"For instance, the orders demand the CIA shut down the so-called 'Black Sites,'
or secret prisons run by the agency or through its foreign-intelligence
partners. But they do allow for CIA to hold detainees on 'a short-term,
transitory basis' before transferring them to another government agency. But how
long should that period be? Hours? Days? Weeks? What procedures should be in
place to determine humane treatment of those detainees during a time when
they’re not likely to have access to human-rights monitors like the
International Committee of the Red Cross?"

It seems to me that Obama's executive order, Sec 4. part b, suggests that, if a detainee were to be rendered to another country's government, before passing to that country, their name would have to be released to the International Committee of the Red Cross - and the Red Cross would also be given access to the detainee:

"All departments and agencies of the Federal Government shall provide the
International Committee of the Red Cross with notification of, and timely access
to, any individual detained in any armed conflict in the custody or under the
effective control of an officer, employee, or other agent of the United States
Government or detained within a facility owned, operated, or controlled by a
department or agency of the United States Government, consistent with Department of Defense regulations and policies."

Hilzoy makes this very point: "His executive order also precludes any kind of secret detention of prisoners, and thus 'secret abductions and transfers of prisoners'...Note that this has no exceptions for short-term detainees whom we quickly hand off to someone else." The executive order states that the International Committee of the Red Cross will have access to any individual detained - any and all. No more "Camp NAMA"s. The International Committee of the Red Cross will apparently have a record of our detainees that matches, in very important ways, our record. Accountability in real-time (hypothetically), at least when it comes to the subject of our detainees in our custody.

This is all well and good. But other measures could improve accountability considerably. I would think it none too difficult to deceive/mislead the International Comm. of the Red Cross. As an Illinois State Senator, Obama pushed for a law to videotape all police interrogations. He could presumably issue an executive order dictating the same in all of our detainee interrogations. All of them - interrogations in temporary holding cells, interrogations domestically.

But is a videotaped interrogation much consolation to someone who has been kidnapped? Let me go out on a limb here and say NO.

I plan to post on the legal issues regarding rendition later this week. Unfortunately I don't have the time to give to the problem that it deserves today. Apologies for the delay.

Silly Lies About Torture

2009-02-03T13:47:00.002-05:00

I noticed something about the piece Daphne Eviatar covers in The Washington Independent today. William McGurn (btw, check out the sweet bio on the sidebar) accuses Pelosi and Reid of being too detached from reality to pass anti-torture legislation. In his words,

"If Mrs. Pelosi and Mr. Reid believe their own public statements that
waterboarding and other techniques are both torture and ineffective, they ought
to incorporate their words into a law that takes these practices off the table
forever.

That, of course, would mean a vote that would force lawmakers to face up to
the real-life consequences of their actions -- and submit those actions to the
judgment of the American people."

McGurn wants accountability, but not in the sense of ensuring we never torture again - more in the sense of, if a terrorist attack happens, it's the Democrats fault, because they didn't let us waterboard.

Among the various right-wing views (the "real assertion" that torture works - oh, and also an ideal world in which "good men and women could present the case for enhanced interrogation without having their words twisted and finding themselves held up in public as latter-day Torquemadas") McGurn also demonstrates no understanding of how torture was actually carried out. I guess he is loath to read the investigative work of those on the other wing. Too bad for him. McGurn writes:

"For the past few years, no word has been more casually thrown about than
'torture.' At the same time, no word has been less precisely defined. That suits
Congress just fine, because it allows members to take a pass on defining the law
while reserving the right to second-guess the poor souls on the front lines who
actually have to make decisions about what the law means.

Unless by "poor souls on the front lines" he means "Alberto Gonzales," his statement is wildly incorrect. We know that torture was carefully tested, carefully planned, and almost every move was triple-checked. It was the top of the chain of command that made decisions:

"Kirakou made the interrogations sound almost like a game of 'Mother, May I?'
He said, 'It was not up to the individual interrogator to decide 'I'm going to
slap him' or 'I'm going to shake him.' Each one of these, though they're minor,
had to have the approval of the Deputy Director for Operations, who during most
of this period was James Pavitt. 'Before you could lay a hand on him, you had
to send a cable saying, 'He's uncooperative. Request permission to do
X.'...There was, however, no known instance of the supervisors denying a request
to use more force." ["The Dark Side," Jane Mayer, p.167]. post here

The law was graphically detailed, as were the demonstrations of "enhanced interrogations" (h/t digby) -

"Highly placed sources said a handful of top advisers signed off on how the
CIA would interrogate top al Qaeda suspects -- whether they would be slapped,
pushed, deprived of sleep or subjected to simulated drowning, called waterboarding.

The high-level discussions about these 'enhanced interrogation techniques' were so detailed, these sources said, some of the interrogation sessions were almost choreographed -- down to the number of times CIA agents could use a specific tactic.

The advisers were members of the National Security Council's Principals Committee, a select group of senior officials who met frequently to advise President Bush on issues of national security policy."

Hayden himself makes the decision-making process clear: “If you create a box, we will play inside the box without exception."

The only thing our agents on the ground need to fear is that the policy-makers and commanders above them abandon them in a time of need, scapegoat them, and make them carry out policies that could cause legal trouble down the line. Poor souls on the front lines indeed.

The Media and Obama Renditions

2009-02-03T10:54:00.002-05:00

The media has been all over the place when it comes to news that Obama will use renditions as part of his counterterrorism strategy. There isn't necessarily anything wrong with that - as Richard Clarke points out, renditions can be legal, they can be effective, and they can result in justice being served. This is an ideal rendition scenario. I am anxious to see what safeguards will be put in place to guarantee that renditions performed by the American government are legal, effective, and done within the scope of human rights. Having our Congressional Intelligence Committees perform oversight is not exactly what I want - after the Bush era, who can trust them to really be watchdogs? Renditions are used because secrecy is necessary - otherwise extradition would do the trick and there wouldn't be anything to hide. But there needs to be a way to make sure the entire process is not secret. I also would like to see that our CIA operatives are trustworthy in preserving the human rights of the detainee - it shouldn't be a problem, but if it is, Obama needs to enforce the rules by coming down hard on such people.

However, the above universe of questions has pretty much escaped the media. The LA Times piece by Greg Miller inspired a number of misleading titles and reports. A quick Google News search for "Obama rendition" over the past month gives us such titles as "Obama 'breaks promise', gives blessing to rendition," "Renditions still allowed under new Obama directive," "Obama is right to stick with rendition," and Media Matters dissects here a John King segment.

Rendition is pretty confusing, and making it clear that Obama's program is different from Bush's should be a priority of SOMEONE on his team. I don't see how it does Obama any good to have the world think he is the same as Bush on this key issue.

For example, Ed Morrissey is ridiculously misinformed and assumes Obama's program is the same as Bush's. Due to Obama's executive orders mandating strict anti-torture standards and "lawful" options (Scott Horton points out that rendition to torture is considered a felony under US law) , it is not and cannot be. And I don't know where he gets the idea that "The CIA by law cannot bring the suspects back to the US." That we can get detainees back to the US is pretty much the point of a limited renditions program, as Clarke demonstrates. Morrissey does have a point about renditions though - "Most of these terror suspects grabbed by the CIA come from countries like Pakistan, Saudi Arabia, Egypt, Jordan, and other emirates where the Geneva Convention only provides a veneer of respectability and not legal constraints of any kind." It's difficult to imagine a scenario in which Obama could get legitimate assurances from these particular countries.

Rendition is a confusing business. Hilzoy does a nice briefer here. I will try to be more specific personally when describing renditions. Scott Horton has another great post here. This is a great opportunity for blogger pushback against the media. And maybe if we keep the focus on Bush rendition ugliness, we'll inspire more interest in an investigation of renditions conducted during his presidency.

An Obama Rendition

2009-02-02T11:44:00.005-05:00

I suppose Greg Miller's LA Times article that I posted about yesterday answered my question - yes, there will be renditions under Obama. The earlier source for this information was Rob Winder, writing for Al Jazeera. Winder provides a more specific definition of extraordinary rendition than Miller does, writing: "Extraordinary renditions, where "terror" suspects are apprehended and transferred from countries by US intelligence services or their allies, without going through any legal process, could still be carried out." Michael Scheuer (hardly an anti-torture advocate) makes an interesting point about the terror suspects that will be shuffled around:

Michael Scheuer, a former CIA agent who was head of the organisation's Bin Laden
Unit in the 1990's, told Al Jazeera it was not clear what would now happen
to suspects detained as part of the rendition process after the secret prisons
had been closed and other countries off-limits due to torture claims.
"I don't know where they would be taken ... but they wouldn't be brought here [to
the US]," says Scheuer.
"Most of those detained have been arrested by foreign intelligence agencies so a US court could not be sure they hadn't been roughed up at all and that documents had not been tampered with."

Well, at least they won't be tortured now...right? My concern is that "gaining assurances" could become an empty process used only for CYA purposes - a look-the-other-way type process. After all, we monitor the human rights records of other countries constantly. The difficulty of gaining assurances countries won't torture should not be great. Otherwise, what are we paying all those people at the State Department to do?

I believe it is important for the Obama team to make clear that the policy they want to pursue is a sea-change from the Bush Administration. For instance, Richard Clarke in his article "The Confusion Over Renditions" makes excellent points about the right kind of rendition - namely, that rendition is legal (or can be) - "The Supreme Court has even ruled that renditions occurring without the cooperation of the nation of arrest are legal if the accused is expeditiously brought into the US justice system." The language of Obama's executive order limiting CIA detention to a very brief time frame should also limit him to performing these narrowly-defined, legal renditions. Esp. in conjunction with his executive order demanding conformity to the Convention Against Torture.

This is, and must be, different from Bush-era policy. But Obama must make that clear. His embrace of rendition must not impair his ability to investigate the policies of the Bush years. People are already conflating Dubya and Obama rendition policies (and since rendition comes in many varieties, this isn't hard to do). This sort of misinformation certainly doesn't serve Obama's interests. Declassify the Bush-era documents, question the players - expose the Bush cronies for what they are. And set up a system for your own renditions that guarantees we are following the rule of law.

Trusting the People In Power

2009-02-01T19:49:00.003-05:00

Greg Miller at the LA Times gives us a somewhat disturbing story today. To quote:

"Under executive orders issued by Obama recently, the CIA still has authority to carry out what are known as renditions, secret abductions and transfers of prisoners to countries that cooperate with the United States.

Current and former U.S. intelligence officials said that the rendition program might be poised to play an expanded role going forward because it was the main remaining mechanism -- aside from Predator missile strikes -- for taking suspected terrorists off the street.

...

'Obviously you need to preserve some tools -- you still have to go after
the bad guys,' said an Obama administration official, speaking on condition of
anonymity when discussing the legal reasoning. 'The legal advisors working on
this looked at rendition. It is controversial in some circles and kicked up a
big storm in Europe. But if done within certain parameters, it is an acceptable
practice.'

One provision in one of Obama’s orders appears to preserve the CIA's ability to detain and interrogate terrorism suspects as long as they are not held long-term. The little-noticed provision states that the instructions to close the CIA's secret
prison sites 'do not refer to facilities used only to hold people on a short-term, transitory basis.'

...

The decision to preserve the program did not draw major protests, even
among human rights groups. Leaders of such organizations attribute that to a
sense that nations need certain tools to combat terrorism.

'Under limited circumstances, there is a legitimate place' for renditions,
said Tom Malinowski, the Washington advocacy director for Human Rights Watch.
'What I heard loud and clear from the president's order was that they want to
design a system that doesn't result in people being sent to foreign dungeons to
be tortured -- but that designing that system is going to take some time.'

Malinowski said he had urged the Obama administration to stipulate that
prisoners could be transferred only to countries where they would be guaranteed
a public hearing in an official court. 'Producing a prisoner before a real court
is a key safeguard against torture, abuse and disappearance,' Malinowski
said."

The problem with renditions goes beyond whether or not the prisoner is directly shipped off to a country that will torture him/her. It's a problem that has to do with accountability as well. If the abductions are secret, how will we know those abducted get their day in court? Obama preserving rendition also makes it more difficult to pinpoint the errors of the Bush-era CIA. Unless Team Obama is willing to go very public with their hair-splitting, Hayden & Tenet just got a lot of cover. Miller's article is pretty flattering to, and uncritical of, Hayden. For example:

The CIA has long maintained that it does not turn prisoners over to other
countries without first obtaining assurances that the detainees will not be
mistreated.

In a 2007 speech, https:// www.cia.gov/news-information/speeches-testimony/2007/general-haydens-remarks-at-the-council-on-foreign-relations.html "> www.cia.gov/news-information/speeches-testimony/2007/general-haydens-remarks-at-the-council-on-foreign-relations.html the agency had to make a determination in every case "that it is less, rather than more, likely that the individual will be tortured." He added that the CIA
sought "true assurances" and that "we're not looking to shave this 49-51."

Even so, the rendition program became a target of fierce criticism during
the Bush administration as a series of cases surfaced.

That is a completely ridiculous assertion that has been disputed by many. Hell, the whole premise of Reuel Marc Gerecht's op-ed of Dec 2008 is that we know which countries torture, and we might just want to keep our options open regarding them. And later from Miller:

"But U.S. intelligence officials contend that the EU report greatly
exaggerated the scale of the program and that most of the flights documented by
the Europeans involved moving supplies and CIA personnel, not prisoners.

Instead, recent comments by Hayden suggest that the program has been used
to move no more than a handful of prisoners in recent years and that the total
is in the 'midrange two figures' since the Sept. 11 attacks."

Well, Peter Bergen and Katherine Tiedemann found evidence of "117 renditions that have occurred since September 11, 2001." They continue "When we excluded renditions to Afghanistan, CIA secret prisons (or "black sites"), Guantanamo, or American custody, we found 53 cases of extraordinary rendition. All individuals for whom the rendition destination is known were sent to countries that have been criticized by the State Department’s annual Country Reports on Human Rights Practices, which document 'torture or other cruel, inhuman or degrading treatment or punishment.'" But, eh, how can a non-CIA driven storyline possibly be true?

Another issue with renditions is that they aren't good for much of anything - Miller's intelligence source admits they are in some ways the "worst option." Again, the Abu Omar rendition is a great example of the stupidity of renditions. I'll refer again to Matthew Cole's excellent piece, Blowback:

But today, as they spoke over coffee, there was something Lady couldn’t
tell Megale: A team of CIA officers were tracking Omar as he walked from his
home to noon prayers, intending to abduct him, put him on a plane, and send him
to Egypt for “questioning,” and that the only reason Lady had scheduled today’s
meeting in the first place was to keep an eye on Megale, in case something went
wrong.

In fairness, it was a plan Lady never believed in. He thought the intelligence being gathered would, in a few months, be enough to ensure Omar’s arrest and conviction; why put a promising joint investigation (not to mention Lady’s relationship with Megale) at risk by doing something as provocative as kidnapping a man off the street in a major Italian city? Progress was being made; Lady was preaching patience.

So rendition was a stupid alternative - it disrupted the progress being made between two cooperating intelligence services. And why did this rendition happen? Again from Matthew Cole:

"Of course, this operation was one that he—and CIA leadership—had been pushing
for all along, to 'show the wimps in the NSC and the House Intelligence
Committee that the agency didn’t need help from foreign governments,' said
the former official."

Greeeat. I am glad the United States intelligence agencies will still hold a place for that kind of mentality.

If you don't have the evidence to try a terrorism suspect, what good is done by whisking them away to another country, to "stand trial"? Or, of course, that may not be the point.

Old News Relevant Now - Mukasey on How to Reinstate Waterboarding

2009-01-30T10:29:00.005-05:00

From the TPM Document Collection, a letter from Attorney General Michael Mukasey to Sen. Patrick Leahy dated 1/30/2008:

"I have been authorized to disclose publicly that waterboarding is not
among those methods. Accordingly, waterboarding is not, and may not be,
used in the current program. There is a defined process by which any new method
is proposed for authorization. That process would begin with the CIA Director's
determination that the addition of the technique was required for the
program. Then, the Attorney General would have to determine that the use
of the technique is lawful under the particular conditions and circumstances
proposed. Finally, the President would have to approve of the use of the
technique as requested by the CIA Director and as deemed lawful by the Attorney
General."

A little more complicated than this, no?

Senate Intelligence Committee Chairman Dianne Feinstein told The Associated
Press in an interview this week that there is a clear distinction between those
who made the policies and those who carried them out.
"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," she said. "We're going to continue our looking into the situation and I think that is up to the administration and the director."

Also Mukasey's letter compliments some of the language in the Senate Armed Services Committee Inquiry Into the Treatment of Detainees in U.S. Custody. I quoted all references to the CIA in that document here. Page 5 for instance reads "In the spring of 2002, CIA sought policy approval from the National Security Council (NSC) to begin an interrogation program for high-level al-Qaida terrorists." In seeking that policy, is the CIA dependent wholly upon the White House lawyers? Wouldn't they cooperate with their own legal staff before making requests of the NSC?

Taking a page from Jane Mayer's "The Dark Side," p.38-39:

"Late in the afternoon of Sunday, September 16, Black emerged from his
self-imposed exile in Langley to show the project he had been working so hard on
all week to the allied British intelligence officials, who were still gathered
in Washington...Black brought a draft of a proposed new, top-secret
presidential "finding" that he and the CIA lawyers had been hammering out all week. Formally called "Memoranda of Notifications" in the Bush
White House, or MONs, they were legal memos detailing proposed covert actions,
all of which required presidential authorization, according to laws that had
been in place since the Agency's founding in 1947. Black's proposed new
finding was an amalgamation of years' worth of thinking about all the powers the
Agency might like to exercise in its fondest dreams....
The proposed finding included the inauguration of secret paramilitary death
squads authorized to hunt and kill prime terror suspects anywhere on earth. A week earlier, these deaths would have been classified as illegal assassinations. Under the new legal analysis, such killings were sanctioned as acts of national 'self-defense.'" [emphasis supplied]

This is a separate issue from the torture memos, but still illuminating. It suggests that the CIA's lawyers work closely alongside CIA staff in the preparation of their requests higher up the chain of command. And if this process was followed in the case of some of the torture authorizations, you have to wonder what those lawyers were thinking - they could be as guilty of giving poor legal advice as Yoo and Gonzales. Which is a big problem - I don't think the rules of the legal profession change if it so happens you work at an intelligence agency.

What's worse is what Mayer writes on p.41: "As soon as he received the paperwork, on Monday, September 17, Bush eagerly signed the new intelligence finding. He had been so enthused when he first heard about it from Tenet and Black at a cabinet meeting at Camp David that weekend according to Bob Woodward's account Bush at War, the President almost shouted 'Great job!' With the stroke of the President's pen, the most important post-Watergate prohibition imposed by Congress on the CIA would be erased, with only a handful of individual's knowledge."

So it appears that a day after Bush received the memo from Black (or the day of!), he signed it. The memo was in draft form on Sept. 16. This caught the attention of some at CIA ("The Dark Side," p.42-43):

"Inside the Agency, Drumheller and a few others were worried. The September 17
Memorandum of Notification had moved much faster than usual. Generally, after
the Agency's lawyers drafted a proposed covert-action finding, it was reviewed
by "The Lawyers' Group," which was chaired by the NSC's legal counsel and
included lawyers from the State Department, Defense Department, Justice
Department, and CIA. After the lawyers flyspecked it, the proposed finding was
reviewed further by the cabinet-level national security policy makers, where
among others the Vice President weighed in. Only then did it move to the
President's desk. But in this critical instance, the CIA would be gaining
fearsome new powers with very little debate - none of it public. The Agency was taking on new responsibilities in areas where it had no expertise, such as
interrogation and detention." [emphasis supplied]

Yep - look again at what that finding contained, according to Mayer (p.39):

"...the finding called for the President to delegate blanket authority to Tenet
to decide on a case-by-case basis whom to kill, whom to kidnap, whom to detain
and interrogate, and how...It authorized the CIA's officers to break and enter
into private property, and to monitor the communications and financial
transactions of suspected terrorists, even inside the United States when
necessary, as well."

This is a far cry from "The White House dictates the policy." A bit of mud in the eye to those anti-torture investigation zealots, isn't it (esp. those who say "we know enough already")? The Bush administration authorized various illegal techniques through such irregular, distorted processes, that it's impossible to say we know enough already about what happened. And if we know that CIA lawyers laid the groundwork for torture, then what? Is there no consequence for that? Every memo must be revealed - and in the context of Holder's ability to prosecute. I have a feeling that what will come out during an investigation is going to be very, very embarrassing for all involved - and criminal prosecution may be well deserved.

Frank Naif Rocks

2009-01-29T15:29:00.007-05:00

(h/t freedetainees.org)

This week, Frank Naif recently wrote about torture investigations/prosecutions in the Huffington Post. He echoes The Washington Monthly's Charles Homans' suggestion that interrogators receive immunity from the government, presumably in exchange for cooperation and testimony. And he denounces the high-level officials, including those in the CIA, for their role in implementing Bush policy. Again, this WSJ chart is illuminating.

From Naif:

"Outside of the halls of government, the public and opinion makers are also
clamoring for truth and reconciliation. On Obama's change.gov web site, the most often-asked citizen question (22,000 or so!) was whether the new president intends to appoint a special prosecutor to investigate torture and warrantless wiretaps.
Observers as disparate as Thomas Ricks and Arianna Huffington have called for some form of truth and reconciliation commission, not unlike those set up in South Africa after apartheid and in Chile after Pinochet.

Presumably, such a commission would be independently empowered to elicit testimony and could offer amnesty to anyone who testifies before it. Therein lies the Obama administration's opportunity to lead, and not merely follow or get out of the way of investigations and commissions.

The Obama administration ought to make at least one meaningful and practical gesture of leadership regardless of what form an inquiry assumes. That action would be to emulate past truth and reconciliation commissions by granting amnesty or some form of legal immunity for the mid- and junior-level personnel who were on the front lines of these odious Bush-era policies.

Such a move will be absolutely vital to getting to the bottom of the program of abuses of the past eight years. Failing to protect from prosecution or civil actions the ground-level national security drones who carried out these policies will:
--Destroy morale in the national security workforce;
--Force the people who can least afford it to 'lawyer up;' and
--Probably bury forever any chance of understanding what happened at Guantanamo and countless foreign and US-run detention facilities worldwide.

Flag-level military officers (admirals and generals), senior executive service civilians, c-level contractor executives, political appointees, and elected officials, however, are the rightful targets of investigation into alleged intelligence and detention misdeeds. These are the individuals whose implicit responsibility was to not only carry out executive branch policies, but also to professionally guide policy in accordance with US law, applicable international law pertaining to warfare, and accepted norms of human rights.

In other words, these are the senior officials who chose not to fall on their metaphorical swords when they were asked to break the law, forgo human decency, and expose their Lieutenants and Sergeants and Petty Officers and GS-13 civil servants and junior contractors to future prosecution and litigation.

These senior officials didn't resign or protest in '02 or '03 or '04, and they should now come forward to explain themselves, and if necessary, take the fall for subordinates who didn't have the prerogative or power to thwart policies that are against American honor and tradition.

To be sure, Obama faces enough of an uphill battle in taking an inventory of the national security wrongs of the Bush years. Perhaps the biggest showdown looms between the White House and Capitol Hill: Senior Democrats in the House and Senate were aware of torture and domestic surveillance programs. Jane Mayer, who delved into Bush-era intelligence abuses in her book The Dark Side, said via a Washington Post online chat last July that legislators 'in both parties would find it
very hard at this point to point the finger at the [Bush] White House, without
also implicating themselves.'

The Obama administration will have its hands full with its own Democratic colleagues -- and lots of other adversaries -- if the badly needed cataloging of Bush-era national security blunders manages to get underway. Making sure that ordinary national security drones aren't vilified or set up to take the fall for their bosses today will strengthen tomorrow's national security."

Too often, the dynamic involvement of our intelligence services in the torture regime is dismissed out of hand - Senate Intelligence Committee Chairman Dianne Feinstein's comments are a great example: "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," continuing "We're going to continue our looking into the situation and I think that is up to the administration and the director." That is extremely misleading from someone who chairs the Senate Intelligence Committee. For example, it was policy that extraordinary renditions be approved by several levels of CIA command, but not approved by the White House (Chicago Tribune) although it has been suggested that the White House was informed of these renditions. So knowledge is divorced from policy - the CIA undoubtedly has masses of information to share with us. That's one of the reasons we need their involvement in any sort of fact-finding commission or investigation. For example, from Der Spiegel, ex-CIA Europe chief Tyler Drumheller:

"I once had to brief Condoleezza Rice on a rendition operation, and her chief
concern was not whether it was the right thing to do, but what the president
would think about it. I would have expected a big meeting, a debate about
whether to proceed with the plan, a couple of hours of consideration of the pros
and cons. We should have been talking about the value of the target, whether the
threat he presented warranted such a potentially controversial intervention.
This is no way to run a covert policy. If the White House wants to take
extraordinary measures to win, it can't just let things go through without any
discussion about their value and morality."

Yet the way it sounds, the total irresponsibility of the White House didn't stop the CIA from conducting the rendition. In Mayer's "The Dark Side," it is suggested that Tenet agreed to hosting a detention program because he was simply too eager to please. So the CIA runs the risks, the executive branch is clueless, and they bend over backwards anyway? Surely someone could've said, hey, this is a really dumb idea? In representing the executive branch's desires more than reality (in terms of operational strategy and intelligence), the CIA has made itself very much part of the problem.

Naif is also eloquent in establishing what I have written about as "The Broader CIA Critique." Really, it's simple - the concept of command responsibility. What did the top 5 people (including John Brennan) at the CIA know about Bush's attempts to make them torture? What did they know and how did they act?

Those questions are simple, and could be addressed in a fact-finding commission. But it's embarrassing that even as former CIA staff fight legal battles over renditions in Italy, now ex-CIA chief Hayden parades around, asking "If the techniques used are said to be legal, should they not be used?" It's clear that many, including our current President, do not think those techniques are legal, and that justice systems around the world are prepared to challenge the legality of our torture operations, and relabel them criminal. If a technique is said to be legal, but flies completely in the face of international law, you better double-check. If the CIA kicked that legal process to the side, they like the other government agencies deserve thorough investigation.

A question

2009-01-29T15:23:00.003-05:00

Is this report to be believed?

"The Guantanamo Bay prison camp was ordered closed by the US president, in
addition a review of the detainees' trials was ordered, along with the
closure of CIA secret prisons and an end to harsh interrogations.
But the orders appear to leave loopholes that could allow some controversial US
practices to continue.
Extraordinary renditions, where 'terror' suspects are apprehended and transferred from countries by US intelligence services or their allies, without going through any
legal process, could still be carried out.
A senior Obama administration official has said the policy of extraordinary rendition would continue while a task force headed by the US attorney general investigates the issue.
The task force will report back to Obama in six months.
The official also said the US would not render anyone to a country that tortures and will gain assurances from the countries that they do send people to that the suspects won’t be tortured."

This is the only place I've read that. I will update later if I find corroboration.

Updated - Holder (seems to) Roll Over

2009-01-28T13:32:00.004-05:00

Ackerman quoting the Washington Times:

"President Obama's choice to run the Justice Department has assured senior
Republican senators that he won't prosecute CIA officers or political appointees
who were involved in the Bush administration's policy of 'enhanced interrogations.'
Sen. Christopher "Kit" Bond, a Republican from Missouri and the vice chairman of the Senate Select Committee on Intelligence, said in an interview with The Washington Times that he will support Eric H. Holder Jr.'s nomination for Attorney General because Mr. Holder assured him privately that Mr. Obama's Justice Department will not prosecute former Bush officials involved in the interrogations program.
Mr. Holder's promise apparently was key to moving his nomination forward. Today, the Senate Judiciary Committee voted 17-2 to favorably recommend Holder for the post. He is likely to be confirmed by the Senate soon."

Prosecutions off the table - even for people like Gonzales and Yoo. So says Eli Lake.

BUT I would like to know exactly what was said to Kit Bond. Bond's actual quoted statements in the article are less severe:

"In the interview Wednesday, Mr. Bond said, 'I made it clear that trying to
prosecute political leaders would generate a political firestorm the Obama
administration doesn't need.'
He added, 'I was concerned about previous statements he made and others had made. He gave me assurances that he would not take those steps that would cause major disruptions in our intelligence system or cause political warfare. We don't need that kind of political warfare. He gave me assurances he is looking forward.'
Mr. Bond also said, 'I believe he will look forward to keep the nation safe and not look backwards to prosecute intelligence operators who were fighting terror and kept our country safe since 9-11.'"

IOW, Mr. Bond may believe Holder won't prosecute - but that doesn't mean he won't. There hasn't been a public promise to that effect. Who knows what language Holder used. Being optimistic here.

It doesn't look good for prosecutions, by any stretch of the imagination. But I'm hoping that Bond and the Washington Times are just doing their job as dutiful Republicans causing trouble for Democrats and protecting their own.

The LA Times op-ed page has an editorial on Cornyn's request that Holder take prosecutions off the table. They say it crosses an ethical line. I hope Holder has not in fact agreed to cross that line with Cornyn and Bond.

Update: Via mcjoan, apparently Sheldon Whitehouse was not in on the Holder-Bond conversation:

"We came perilously close to seeking a prosecutive commitment from an AG
candidate on an issue he would have to make a decision on. We don't ask
judicial candidates their position on a case, the notion that a person who is a
candidate for AG should have to make a prosecutative decision before he has even
read the file or before he has even been read into the program at question."

Holder Going Forward

2009-01-27T21:34:00.004-05:00

Reports suggest that Arlen Specter is prepared to confirm Eric Holder for AG. The Senate Judiciary Committee is scheduled to vote on Holder tomorrow. Specter's statement of support is here.

Specter's ax to grind is not related to torture, torture investigations, or torture prosecutions. Therefore it seems like Holder is well set up to be confirmed without having to go through arm-twisting on the part of some Republicans looking to exact a promise that there won't be torture prosecutions. Specter hasn't been promised such a thing - and he is good to go.

The NYT's liveblog of Holder's confirmation hearing is here. Hopefully Holder didn't promise too much to Republicans by way of prosecutions in the informal exchanges that have happened between his confirmation hearing and now. If he did, let's hope he wrote in pencil. Specter's notification of support today weakens Republican opposition, and decreases the likelihood that Holder will have to tie his hands regarding investigating and prosecuting Bush crimes. Disadvantage, Cornyn.

A great op-ed on the subject by Joseph L. Galloway.

Fear-mongering At Its Finest

2009-01-27T12:14:00.007-05:00

Yesterday Alberto Gonazles held forth about torture and prosecutions on NPR. Kate Klonick has the story. Here is Gonzales' statement:

“'One needs to be careful in making a blanket pronouncement like that,' Gonzales
said, suggesting that it might affect the 'morale and dedication' of intelligence officials and lawyers who are attempting to make cases against terrorism suspects.
He said people he knows at the CIA have told him that agents there 'no longer have any interest in doing anything controversial.' And that, Gonzales asserted, means they 'won’t be doing what they need to be doing' to protect the country.

I'm guessing the people that Gonzales knows at the CIA - who are still willing to confide in him, seeing how his crap memos put many at the CIA in legal jeopardy - are probably not big Obama boosters to begin with. And if the CIA truly waterboarded only three times, I doubt Holder calling 'em like he sees 'em is going to massively depress morale.

Nobody has a problem with the CIA taking risks. But it seems simple enough that they should not be allowed to torture. I suspect its Gonzales' morale that is more deeply affected than anyone else's.

Case in point:

“'It’s a great leap forward in terms of respect for human rights,' said John Kiriakou, the retired CIA official who supervised the early interrogation of Al Qaeda detainee Abu Zubaydah in 2002. 'From the very beginning, the CIA should not have been in the business of enhanced interrogation techniques and detentions.' CIA interrogators waterboarded Abu Zubaydah, but not while Kiriakou supervised the interrogation.

...

Kiriakou said that the reaction to Obama’s harmonization of interrogations policy would get 'a very positive reaction' inside the CIA. 'There are people at CIA who engaged in what were certified as enhanced [interrogation] techniques, but were never supportive of it,' he said. 'This should make people very happy. No one wants to be in harm’s way [legally]. Despite what the Bush White House and Bush Justice Department said was legal, I think people at the CIA understood that this was not legal and [the techniques] were torture.'
Tyler Drumheller, a former chief of CIA operations in Europe during the Bush administration’s first term, agreed. 'These people aren’t monsters,' Drumheller said. 'They were doing what they were told, and what was the policy of the [Bush]
administration.'” [emphasis supplied]

Yep, sounds like morale was just crushed.

Guantanamo Case Files

2009-01-26T06:35:00.004-05:00

WaPo:

"President Obama's plans to expeditiously determine the fates of about 245
terrorism suspects held at Guantanamo Bay, Cuba, and quickly close the military
prison there were set back last week when incoming legal and national security
officials -- barred until the inauguration from examining classified material on
the detainees -- discovered that there were no comprehensive case files on many
of them."

Getting a lot of good information out of these guys, are you?

"Charles D. "Cully" Stimson, who served as deputy assistant defense secretary for
detainee affairs in 2006-2007, said he had persistent problems in attempts to
assemble all information on individual cases. Threats to recommend the release
or transfer of a detainee were often required, he said, to persuade the CIA to
'cough up a sentence or two.'"

One of the interesting aspects of the article is that it points to the fact that Guantanamo poisoned the well for everybody. Regardless of what each agency's operatives were allowed to do, they all used information from Guantanamo for their analyses. It's a tacit acceptance of torture. At the very least.

"In one federal filing, the Justice Department said that 'the record . . . is not
simply a collection of papers sitting in a box at the Defense Department. It is
a massive undertaking just to produce the record in this one case.' In another
filing, the department said that 'defending these cases requires an intense,
inter-agency coordination of efforts. None of the relevant agencies, however,
was prepared to handle this volume of habeas cases on an expedited basis.'"

Again, are we really expected to believe that good information was being collected from those held in Guantanamo? For all of our efforts at centralizing intelligence and information sharing, we are left with this. Probably by design. Either the DoJ is being left out (...a problem), or the intelligence community isn't getting sh*t from these detainees. And really, as Invictus points out, what could they be getting.

Legalese

2009-01-25T20:22:00.007-05:00

An Obama answer from This Week -

OBAMA: We're still evaluating how we're going to approach the whole issue of
interrogations, detentions, and so forth. And obviously we're going to be
looking at past practices and I don't believe that anybody is above the law. On
the other hand I also have a belief that we need to look forward as opposed to
looking backwards. And part of my job is to make sure that for example at the
CIA, you've got extraordinarily talented people who are working very hard to
keep Americans safe. I don't want them to suddenly feel like they've got to
spend all their time looking over their shoulders and lawyering (ph).
STEPHANOPOULOS: So, no 9/11 commission with Independence subpoena power?
OBAMA: We have not made final decisions, but my instinct is for us to focus
on how do we make sure that moving forward we are doing the right thing. That
doesn't mean that if somebody has blatantly broken the law, that they are above
the law. But my orientation's going to be to move forward.

Now, considering the question put to Obama was - "Will you appoint a special prosecutor ideally Patrick Fitzgerald to independently investigate the greatest crimes of the Bush administration, including torture and warrantless wiretapping" - the fact that he says he does not want CIA agents "lawyering" suggests he will not investigate them. After all, how are you going to conduct an investigation without lawyers present?

Let's look at the case against investigating the CIA. The issue of legal fees (esp. as they relate to morale), for example:

“If I’m going to go to an officer and say, ‘I’ve got a truth commission, or I
want to post all your e-mails, or, well, we’ve got this guy from the bureau who
wants to talk to you,’ ” Mr. Hayden said, it would discourage such a C.I.A.
officer from taking risks on behalf of the new president’s policies. “We have no
right to ask this guy to bet his kid’s college education on who’s going to win
the off-year election,” Mr. Hayden said, alluding to legal fees that such a
C.I.A. officer might face.

But actually, according to Newsweek:

In anticipation of just such a scenario, however, the agency some years ago
began encouraging its employees to purchase special liability-insurance policies
from Wright & Co., a Virginia firm that specializes in coverage for
government investigators.

And by federal law, managers can be reimbursed for up to 50% of the cost of professional liability insurance (h/t Rich Stim). The 2006 Military Commissions Act also leaves the door open for the government to provide for legal costs. From wiki:

In 2005, a provision of the Detainee Treatment Act (section 1004(a)) had created a new defense as well as a provision to providing counsel for agents involved in
the detention and interrogation of individuals “believed to be engaged in or
associated with international terrorist activity”. The 2006 MCA amended
section 1004(a) of the Detainee Treatment Act to guarantee free counsel in
the event of civil or criminal prosecution and applied the above mentioned legal
defense to prosecutions for conduct that occurred during the period September
11, 2001 to December 30, 2005. Although the provision recognizes the possibility
of civil and or criminal proceedings, the Center for Constitutional Rights has
criticised this claiming that "The MCA retroactively immunizes some U.S.
officials who have engaged in illegal actions which have been authorized by the
Executive." [34]

It seems to me that, more or less, everything is already in place for the CIA to be investigated. How much more protection could you need? And furthermore, there is evidence that the CIA was willing to go out on the limb for the key psychologists that put together its torture program, James Mitchell and Bruce Jessen:

Attorneys familiar with the interrogation issue told Salon that in recent
months the CIA has moved to hire expensive private counsel to deal with mounting
legal concerns over interrogations. The CIA would not confirm to Salon whether
the agency would pay for private attorneys to represent the two psychologists,
Mitchell and Jessen, who were employed as contractors by the agency. But CIA
spokesman George Little said, "Quite apart from any specific instance, it should
not surprise anyone that the CIA would, in appropriate cases, assist with the
legal fees of those who have worked with the agency."

Working out the problem of legal fees does not seem terribly difficult. You could swap immunity in exchange for testimony for many in the CIA. I don't mind paying that price, provided the immunity is targeted towards those low in the chain of command.

But certain "senior" CIA officials pretend otherwise in order to threaten the interests of national security in the media. Everything is a "witch hunt."

Jan 5 2008:

Some CIA veterans fear the move is tantamount to unleashing an independent
counsel on Langley. "A lot of people are worried," says one former CIA official,
who asked not to be identified talking about sensitive matters. "Whenever you
have the bureau running around the building, it's going to turn up some heads.
This could turn into a witch hunt."

January 8 2009:

Still, some experts said any public fact-finding inquiry could be perceived
within the C.I.A. as a witch hunt.
“If Panetta starts trying to feed people to that commission, his tenure at C.I.A. will be over,” said Mark M. Lowenthal, a former senior C.I.A. official and an adjunct professor at Columbia University.
“If it happens, C.I.A. people are not going to start plotting against the president, but they are going to withdraw from taking risks, and then the C.I.A. becomes useless to the president,” Mr. Lowenthal said.

Again, I am not seeing how this is necessarily true. There are some in the CIA who should be taking risks - but there are others who should be much more conservative and interested in protecting the workforce. LIKE THE CIA'S LAWYERS - Jonathan Fredman for ex.:

They took the top lawyer for the CIA Counterterrorist Center to Guantánamo,
where he explained that the definition of illegal torture was "written vaguely."
"It is basically subject to perception," said the lawyer, Jonathan Fredman, according to meeting minutes that were made public Tuesday at a Senate hearing. "If the detainee dies, you're doing it wrong."

...

The meeting at Guantánamo showed how CIA lawyers believed they had found a
legal loophole permitting the agency to use "cruel, inhuman or degrading" methods overseas as long as they did not amount to torture.

How completely absurd is that? Why wasn't this man fired? Instead, he was sent (by somebody) to spread this legal advice to Guantanamo.

As of June 18, 2008, these revelations about Fredman's role were described as "new evidence." This evidence turned up as a result of the Senate's investigation of the Pentagon.

Imagine what an investigation into the CIA will turn up.

Oh For The Love of God

2009-01-24T20:45:00.006-05:00

From War & Piece:

A day before Obama signed executive orders closing Guantánamo Bay and banning
torture, the White House's top lawyer privately indicated to Congress that the new president reserved the right to ignore his own (and any other president's) executive
orders. In a closed-door appearance before the Senate intelligence committee,
White House counsel Gregory Craig was asked whether the president was required by law to follow executive orders. According to people familiar with his remarks, who asked for anonymity when discussing a private meeting, Craig answered that the
administration did not believe he was. The implication: in a national-security
crisis, Obama could deviate from his own rules. A White House official said that
Craig's remarks were being "mischaracterized."

Of course, this is just one of the many reasons that Feinstein's idea of a law codifying the use of the Army Field Manual for interrogations throughout the entire intelligence community is a good one. At least in the limited way of being able to make laws that mean something more than the "get out of jail free" cards that seem so in style in the American presidency. Without question Obama's executive orders must be put into law. Do you trust this gamesmanship for even a second?

I find this disturbing as well:

White House press secretary Robert Gibbs said he would not "prejudge the
executive orders of the commission," but said the Army Field Manual would set
the rules for all interrogations now. "The commission has been tasked with
studying any number of different scenarios relating to detainees and
interrogation," Gibbs said. "And I think what's best is to let that happen and
see what happens when they come back."

Again, this is pretty simple. You either follow international law, or you do not. The Special Task Force must not become a private think-tank that decides upon our trespassing upon international law at their whim. How can an administration remain vigiliant against torture when they are leaving the door open to it? Leaving torture in the political realm is a mistake. If the Special Task Force comes back and says, "torture is wrong," a chorus of torture supporters will malign the Task Force. So appointing a panel of super important responsible people isn't going to solve anything, nor solidify the Obama administration's present anti-torture stance. One by one every person in the Task Force will be discredited - no doubt Hillary Clinton will be discredited in particular. It's easy. For God's sake, just say TORTURE IS WRONG. But I guess with Holder being punished by Republicans for doing so, and Blair unwilling to say waterboarding is torture, and Obama not willing to immediately investigate and prosecute Bush for torture, one's options in terms of principles are limited.

What are they thinking by just dragging this out? Feinstein should step in and get a law against torture passed immediately. Glorifying executive power is not the answer to stopping torture. And better to pass a law now, when the Dems have the majority, than to wait until Republicans or another oppositional party can catch up a bit.

Invictus has posted about how the AFM may still codify torture. That is where our argument should be right now - whether the AFM is strict enough. I personally will try to devote more attention to it. But instead of arguing about the AFM, we are currently in a position where, as a sop to Republicans, the door has been left open for torture under the assumption that torture might at some time serve the needs of our country. Where is this assumption being strongly supported? The intelligence community. Why are they supporting it if not to cover their asses for 8 years of criminal mistreatment of detainees?

President Obama's strokes of the pen this week were a great step toward righting our policy. But torture-related issues must be taken out of the realm of the executive branch, and placed squarely into the realm of law that we may all be judged by. Nobody should be able to torture, and whether we do or not should not be dependent upon changing interpretations of executive powers. Torture isn't an issue for the executive branch.

The Word on Investigations

2009-01-24T09:06:00.002-05:00

Jason Leopold summarizes the week in Bush torture investigations. The outlook is much sunnier than it was just a while ago:

"Senate Majority Leader Harry Reid said he would support funding and staff for additional fact-finding by the Senate Armed Services Committee";

"Levin, D-Michigan, also said he intends to encourage the Justice Department and incoming Attorney General Eric Holder to investigate torture practices that took place while Bush was in office";

"Democratic Majority Leader Steny Hoyer of Maryland told reporters: 'Looking at what has been done is necessary'”;

"On Jan. 18, two days before Obama’s inauguration, House Speaker Nancy Pelosi expressed support for House Judiciary Committee Chairman John Conyers’s plan to create a blue-ribbon panel of outside experts to probe the 'broad range' of policies pursued by the Bush administration 'under claims of unreviewable war powers'”;

"Conyers urged the Attorney General to 'appoint a Special Counsel or expand the scope of the present investigation into CIA tape destruction to determine whether there were criminal violations committed pursuant to Bush administration policies that were undertaken under unreviewable war powers, including enhanced interrogation, extraordinary rendition, and warrantless domestic surveillance'”;

"Levin also indicated that he expects to release the full Armed Services Committee report – covering an 18-month investigation – in about two or three weeks. Levin added that he would ask the Senate Intelligence Committee to conduct its own investigation of torture as implemented by the CIA."

(all quotes from Jason Leopold).

This is excellent news all around. I still think there will be hitches in investigating Bush torture policies because Obama has kept on some of the players - people like John Brennan and Stephen Kappes. Regardless of what you think they did, it is not going to look good for them.

An important name missing from Leopold's article is Dianne Feinstein. Feinstein commented on January 10th:

"'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," she said. "We're going to continue our looking into the
situation and I think that is up to the administration and the director.'

Feinstein declined to comment on whether her committee would take specific
action to offer legal cover to those involved in harsh interrogations that some
critics say amount to torture."

This is a simplified view that offers a lot of cover to the CIA.

I would like to see Feinstein support the efforts that are brewing to investigate our intelligence agencies. Sure, it's not as exciting as investigating Obama inauguration tickets, but it's her job as well.

On Going Forward

2009-01-23T13:41:00.004-05:00

In The Washington Monthly's Nov/Dec 2008 issue, Charles Homans has an interesting proposal on how to investigate the CIA. He proposes the following:

"We don’t know who exactly destroyed the tapes or what else may have been or is
in danger of being destroyed, but Congress or an investigatory commission might
be able to guard against losing what’s still intact by granting immunity to
interrogators. Establishing the responsibility of officials higher up in the
Bush administration is far more important than prosecuting those who carried out
their actions in the field." [emphasis mine]

This is an interesting concept. I am not in favor of prosecuting interrogators and case officers here in the United States. The case in Milan against Bob Lady & co. targets the wrong people, in my opinion - although it is certainly reasonable that they are being targeted.

But what are the consequences of granting immunity to that many people? How high in the CIA chain of command would you stop? The immunity would have to be conditioned upon cooperation with an investigation. Here it seems possible that a Truth & Reconciliation Commission would work. At higher, policy-making levels, it might not, as Philippe Sands suggests in this NPR interview. If you aren't willing to apologize and assume guilt, the Commission is ineffective.

Homans makes a very good point later:

Even if techniques can’t be disclosed, Congress or a commission could usefully
address the scope and results of the interrogations, something that would be far
harder to block on national security grounds: how many detainees were subjected
to extreme techniques, how many of them were ultimately cleared of wrongdoing,
and whether any useful information was extracted from those who weren’t. Most of
the techniques that interrogators are believed to have derived from the SERE
methods originated with the KGB, which used them to extract false confessions;
ethics and legality notwithstanding, many intelligence veterans have questioned
their usefulness for obtaining accurate information. As president, Obama should
reiterate his campaign statement that "Torture is how you create enemies, not
how you defeat them. Torture is how you get bad information, not good
intelligence." And if the evidence suggests the latter is true, it should be
made public to preempt the next Dick Cheney who suggests otherwise.
[emphasis mine]

The interesting thing about the last point is that even if evidence suggested it was not true, that might not prevent torture from happening again in this country. It would certainly help those who wish to push back on torture advocacy, but there is some sort of superstition held by many in American political circles that torture could work - there could be a time where it was worth doing. For example, Obama's executive order yesterday. While on the whole the order was positive, it nonetheless embraced that "torture could work" feeling. From Greg Sargent:

"But Ratner pointed to the following lines in the executive order that, he said,
provided a possible loophole by creating a Task Force to study the issue:
'The mission of the Special Task Force shall be:
(1) to study and evaluate whether the interrogation practices and techniques in Army Field Manual 2-22.3, when employed by departments or agencies outside the military, provide an appropriate means of acquiring the intelligence necessary to protect the Nation, and, if warranted, to recommend any additional or different guidance for other departments or agencies …'

The key there, Ratner says, is that the exec order appears to allow for an evaluation as to 'whether' — a key word — the Army Field Manual techniques are sufficent to 'protect the nation.' That, he says, allows for the Task Force to find after studying the issue that there may be cases where it’s acceptable to go beyond the Army Field Manual."

As a practical matter, it leaves the door open for torture. It's possible, I suppose, that this is a political ruse designed to demonstrate that torture does not work. But I doubt it. And the Special Task Force should not become our private high court when it comes to matters of torture. This information should all be made public. Discovering, revealing, and discussing the information must all be done in a public context. That is the proper way to move forward.

+++

Over at Talkleft, Edger quotes the film "Judgment at Nuremberg," which establishes the appropriate context:

"What about those of us who knew better, we who knew the words were lies
and worse than lies? Why did we sit silent? Why did we take part? Because we
loved our country. What difference does it make if a few political extremists
lose their rights? What difference does it make if a few racial minorities lose
their rights? It is only a passing phase. It is only a stage we are going
through. It will be discarded sooner or later. Hitler himself will be discarded
-- sooner or later. The country is in danger. We will march out of the shadows!
We will go forward. FORWARD is the great password."

Recalling what Biden said on "This Week" in December.

CIA In Motion

2009-01-22T21:32:00.007-05:00

Spencer Ackerman gets a great scoop today about Obama's executive orders:

“It’s a great leap forward in terms of respect for human rights,” said John
Kiriakou, the retired CIA official who supervised the early interrogation of Al
Qaeda detainee Abu Zubaydah in 2002. “From the very beginning, the CIA should
not have been in the business of enhanced interrogation techniques and
detentions.” CIA interrogators waterboarded Abu Zubaydah, but not while Kiriakou
supervised the interrogation.

You may know Kiriakou from the right-wing defenses of torture that you see and hear every day. He claimed that torture saved lives and prevented attacks. And also said we need to stop enhanced interrogation. [Transcript] If your goal is to imagine someone who more perfectly fits the image of mixed bag, it's hard to top Kiriakou.

But to Ackerman he says:

"Kiriakou said that the reaction to Obama’s harmonization of interrogations
policy would get 'a very positive reaction' inside the CIA. 'There are people at
CIA who engaged in what were certified as enhanced [interrogation] techniques,
but were never supportive of it,' he said. 'This should make people very happy.
No one wants to be in harm’s way [legally]. Despite what the Bush White House
and Bush Justice Department said was legal, I think people at the CIA understood
that this was not legal and [the techniques] were torture.'”

Contrast Hayden - "If the techniques used are said to be legal, should they not be used?" (NYT).
Got some questions? Me too. Let's investigate.

Hayden responded to Obama's executive order today here.

Update: Sorry, it's creepy.

From Hayden's statement:

The legal and policy landscape under which the Agency has conducted itself in
the global war on terror has changed in the past and we have consistently and
scrupulously adjusted our efforts to reflect these changes. [emphasis mine]

From the Senate Armed Services Committee report on the treatment of detainees:

Secretary of State Condoleezza Rice, who was then the National Security Advisor,
said that, "in the spring of 2002, CIA sought policy approval from the National Security Council (NSC) to begin an interrogation program for high-level al-Qaida terrorists." (pg.5) [emphasis mine]

The other OLC opinion issued on August 1, 2002 is known commonly as theSecond
Bybee memo. That opinion, which responded to a request from the CIA, addressed the legality of specific interrogation tactics. (pg.6) [emphasis mine]

Mr. Bellinger, the NSC Legal Advisor, said that "the NSC’s Principals reviewed
CIA’s proposed program on several occasions in 2002 and 2003" and that he
"expressed concern that the proposed CIA interrogation techniques comply with
applicable U.S. law, including our international obligations." (pg.6) [emphasis mine]

Again...I do not understand this. Hayden and many other CIA management officials wish to collapse the whole process of obtaining legal authorization into an extremely simple interaction. It was assuredly not. Was it impossible for the CIA to request a copy of the Geneva Conventions? Was it impossible for CIA lawyers to do the lightest amount of research necessary to know that something was fishy with the memos that almost everyone in the legal community has dumped upon? Knowing if someone was told to shut up, or if someone decided to shut up, would be important. Last I checked, the Office of Legal Counsel is not the last word on the Law of the Land. The CIA would be within its rights to contest certain interpretations. There is a clear failure here, beyond the CIA's convenient mythologizing of its role. Determining the nature of that failure is essential to the interests of the country. If future Bushes are insistent upon torturing, let them waterboard their own suspects. Right now we do not have those conditions in place. We ought to.

President Obama Ends CIA Special Program

2009-01-22T13:33:00.002-05:00

From NYT. Well done Obama:

As he signed three orders, 16 retired generals and admirals who have fought for
months for a ban on coercive interrogations stood behind him and applauded. The
group, organized to lobby the Obama transition team by the group Human Rights First, did not include any career C.I.A. officers or retirees, participants said.

One of Mr. Obama’s orders requires the C.I.A. to use only the 19 interrogation methods outlined in the Army Field Manual, ending President Bush’s policy of permitting the agency to use some secret methods that went beyond those allowed to the military.

I look forward to reading the Executive Order for this, and for the closing of Guantánamo, later on his website.

Big News

2009-01-22T06:49:00.004-05:00

from DK - mcjoan and others on Russell Tice's appearance on Keith Olbermann. Yes, you are being watched.

Kula 2316 on prisons and interrogations:

"Now this headline in the New York Times makes me very happy indeed: Obama to Close Foreign Prisons and Guantanamo. I knew Obama would close Guantanamo eventually, so I was more worried about what would happen to the overseas detention centers that we might not even know about. How many foreign prisons do we have? Michael Hayden once said it was 'fewer than 100'":

'President Obama is expected to sign executive orders Thursday directing the
Central Intelligence Agency to shut what remains of its network of secret
prisons and ordering the closing of the Guantánamo detention camp within a year,
government officials said.'
also:

'And the orders would bring to an end a Central Intelligence Agency program that kept terrorism suspects in secret custody for months or years, a practice that has brought fierce criticism from foreign governments and human rights activists. They will also prohibit the C.I.A. from using coercive interrogation methods, requiring the agency to follow the same rules used by the military in interrogating terrorism suspects, government officials said.'

A few weeks ago, mcjoan wrote a post speculating about a potential "loophole" that would allow the CIA to continue using "techniques" not authorized by the military. The New York Times reports that there may indeed be a loophole:

'A Congressional official who attended the session said Mr. Craig acknowledged concerns from intelligence officials that new restrictions on C.I.A. methods might be unwise and indicated that the White House might be open to allowing the use of methods other the 19 techniques allowed for the military.'

This paragraph doesn't really make sense, maybe because there is a typo. (Hello, New York Times, are you looking for a proofreader because I need a job!) I guess it is supposed to read 'other than the 19 techniques allowed for the military.'"

Finally, Elana Schor at TPM on the reason for the Holder holdup - to protect torturers.

That's a lot of news in 24 hours. I am glad we did not wait until Obama took office to criticize him and make clear that torture is unacceptable. We must continue to pay close attention.

Hayden's Words

2009-01-21T14:02:00.000-05:00

Don't let the door hit you on the way out...

"Arguing that Department of Justice lawyers had issued several legal
decisions ruling on the CIA's interrogation methods, Hayden said the agency was
motivated by duty, not 'enthusiasm.' 'If the techniques used are said to be
legal, should they not be used?' he asked, adding that interrogations produced
the 'maximum amount of information' from the first groups of detainees captured
after the 9/11 attacks."

US News

I would think it would be up to the CIA management to determine how the CIA ought to operate. How far they ought to go, if it is worthwhile, if torture is working. Just because it's in some way legal doesn't mean it's a good idea. You know - “ninety per cent of the information was unreliable.”

As far as the potential for real investigations goes, there are contradictory accounts. From WaPo:

"President-elect Barack Obama has privately signaled to top U.S. intelligence
officials that he has no plans to launch a legal inquiry into the CIA's past use of waterboarding and other harsh interrogation techniques, agency director Michael V. Hayden said yesterday."

Public Record's Jason Leopold suggests Obama staff think otherwise:

"But when asked on Friday to respond Hayden’s statements, two high-level
aides on Obama’s National Security transition team who were privy to details of
Hayden and Obama’s briefings disputed the CIA chief’s comments, saying that
Obama did not make any such assurances to Hayden or anyone else in the Bush
administration about not investigating interrogation practices. The aides
requested anonymity because they said they were not cleared to speak
publicly."

"'That is a wholly inaccurate characterization of their conversation' said
one of the aides on the National Security team. 'President-elect Obama did not
make any promises to Mr. Hayden nor did President-elect Obama engage in a
discussion about investigations of any sort, about any past policies, with Mr.
Hayden or anyone in the Bush administration.'”

"In fact, both aides said as much as Obama would like to 'look ahead' and
deal with what they said were more pressing issues, such as economic turmoil,
unemployment, healthcare, and the housing crisis, they said the fact that Obama
will inherit two ongoing investigations that began under Bush’s presidency into
torture policies means the issue revolving around torture will remain on the
front-pages and in the headlines and makes it all the more likely that
Obama’s Justice Department will be forced to undertake some sort of
investigation." [emphasis mine]

Leopold looks into the IG Helgerson's report on torture and rendition:

"Another matter Hayden discussed, the aides said, and was particularly
concerned about, was the findings of a classified CIA inspector general’s report completed in May 2004 about the agency’s techniques used on terrorist detainees between 2001 and 2003 that is said to be brutal in its detailed description of interrogation methods. The report, prepared by Inspector General John Helgerson, concluded that certain methods used by CIA interrogators 'appeared to constitute cruel, inhumane and degrading treatment, as defined by the International Convention Against Torture.'"

'In his report, Mr. Helgerson raised concern about whether the use of the
techniques could expose agency officers to legal liability,' according to a Nov.
9, 2005, story in The New York Times. 'They said the report expressed skepticism
about the Bush administration view that any ban on cruel, inhumane and degrading
treatment under the treaty does not apply to CIA interrogations because they
take place overseas on people who are not citizens of the United States.'"

"According to Mayer, Vice President Dick Cheney stopped Helgerson from fully
completing his investigation. That proves, Mayer contends, that as early as 2004
'the Vice President’s office was fully aware that there were allegations of
serious wrongdoing in The [interrogation] Program.'”

...

"In October 2007, Hayden ordered an investigation into Helgerson’s office,
focusing on internal complaints that the inspector general was on 'a crusade
against those who have participated in controversial detention programs.'”

I would be extremely interested to know the contents of that IG review. Hayden claims waterboarding stopped after 2003.

We know renditions did not stop in 2003. And other practices that may've been specified in Helgerson's report likely did not either.

Hayden's gone now. I wonder how loudly he will continue to make a fool out of himself. He seems to be suggesting Addington & Yoo ran the entire country. Not really true.

No Torture Pardons

2009-01-20T19:49:00.001-05:00

Well, the day passed and Bush issued no torture pardons. The door is open for us to move forward.

Best of luck to President Obama!

Investigate Now

2009-01-19T22:03:00.005-05:00

On the subject of the CIA, Digby writes a very good piece on torture - referring to a piece by BTD "Why The Torture Issue Can't Be Swept Under the Rug." To quote mutual source Hayden from the LA Times again:

"These techniques worked," Hayden said of the agency's interrogation program
during a farewell session with reporters who cover the CIA. "One needs to be
very careful" about eliminating CIA authorities, he said, because "if you create
barriers to doing things . . . there's no wink, no nod, no secret handshake. We
won't do it."

Give them an inch, they'll take a mile. And again it makes you wonder - if the only way the CIA tortures is through rules (at least by their logic - Digby points out that the CIA has been torturing for a long time) and we now have the appropriate authorization for torture...well, how exactly DID that authorization come about? Go searching for material that exonerates the CIA, and you'll likely only find the quotes from CIA sources - saying it wasn't their fault. Meanwhile, other material suggests the CIA asked for authorization to implement "its" programs.

To quote from the recent official Senate Armed Services Committee report on the treatment fo detainees :

page 5:

Secretary of State Condoleezza Rice, who was then the National Security
Advisor, said that, "in the spring of 2002, CIA sought policy approval from the
National Security Council (NSC) to begin an interrogation program for high-level
al-Qaida terrorists." Secretary Rice said that she asked Director of Central
Intelligence George Tenet to brief NSC Principals on the program and asked the
Attorney General John Ashcroft "personally to review and confirm the legal
advice prepared by the Office of Legal Counsel." She also said that Secretary of
Defense Donald Rumsfeld participated in the NSC review of CIA’s program. [emphasis mine]

page 6:

The other OLC opinion issued on August 1, 2002 is known commonly as the
Second Bybee memo. That opinion, which responded to a request from the CIA, addressed the legality of specific interrogation tactics.

...

And Steven Bradbury, the current Assistant Attorney General of the OLC,
testified before the House Judiciary Committee on February 14, 2008 that the
CIA’s use of waterboarding was "adapted from the SERE training program."

...

Mr. Bellinger, the NSC Legal Advisor, said that "the NSC’s Principals
reviewed CIA’s proposed program on several occasions in 2002 and 2003" and that he "expressed concern that the proposed CIA interrogation techniques comply with applicable U.S. law, including our international obligations." [emphasis mine]

Some of these sources are most certainly implicated in the worst of what the Bush administration authorized (Rice? Bradbury?). That said, is the picture that emerges of the CIA any more flattering? We know that Cofer Black came up with a lot of ideas - the CIA was able to feed the Bush Administration's thirst for blood. Now as the Bush Administration leaves, the CIA is left alone, pushing to further institutionalize that thirst for blood.

As has been said again and again, this is not about case officers. This is about taking a serious look at the conduct of senior management in the CIA. I can't think of any law that would say that is inappropriate. There are so many good reasons to do it:

1. Investigate the CIA now so we at least know. The CIA should welcome this opportunity to air their dirty laundry. If they are secondary, we will find out that they are, and how. Otherwise future political opponents will accuse them of being the masterminds behind all of this. See Dick Cheney:

Soon after the Sept. 11 attacks, Cheney said, the CIA "in effect came in and
wanted to know what they could and couldn't do. And they talked to me, as well
as others, to explain what they wanted to do. And I supported it."

2. To restore the moral authority of the CIA and the US. See Jack Devine on human rights and the CIA.

3. Because the CIA is not just accountable to the executive branch -they are accountable to us.

Each side has a story. Cheney deserves a thorough investigation. The CIA does as well. Hayden has been very forthcoming about his side of the story:

Hayden said the agency did not undertake the controversial program of rendition
and interrogations out of "enthusiasm, it did it out of duty and it did it with
the best legal advice it had."

Are you effing kidding me? The CIA, as it represents itself, is a massively conservative organization - so much so that the lightest investigation would decimate their operational capacity - they can't be interrupted or interfered with - and yet their best legal advice was, screw the Geneva Conventions, let's go for broke? Scott Horton, in my mind, effectively debunked that in December in an interview with Professor Mary Ellen O’Connell, who said:

As I told one former CIA lawyer who asked me about the “good faith” defense in
these cases, the quality of the memos is so poor, the process of producing them
so at odds with government standards, and the general knowledge is so high that
torture and cruelty are prohibited, that it difficult to see how good faith
could possibly provide a defense.

Hayden has basically been terrorizing the Media, Congress, and (in a few hours) President Obama over the past few days. See the NYT:

“If I’m going to go to an officer and say, ‘I’ve got a truth commission, or I
want to post all your e-mails, or, well, we’ve got this guy from the bureau who
wants to talk to you,’ ” Mr. Hayden said, it would discourage such a C.I.A.
officer from taking risks on behalf of the new president’s policies.
“We have no right to ask this guy to bet his kid’s college education on who’s going
to win the off-year election,” Mr. Hayden said, alluding to legal fees that such
a C.I.A. officer might face.

But it's not case officers we want - it's you, Hayden. Oh, and wasn't the CIA going to cover appropriate legal fees?

This is an appallingly pathetic display. If only to avoid a future where managers of the intelligence community spend their time hiding behind operatives who actually do the grunt work, we must investigate the CIA. Again, Bob Lady has gone all this time without the help of the CIA. The legal fees have all fallen on HIM as far as I know. Tell me again, who are they - the senior management of the CIA -looking out for? Themselves. That's all this is. It's the same as the private sector. Investigate now.

[Crossposted at TalkLeft]