Discourse.net

They Tortured The Truth Too

Foreign Policy, CIA Man Retracts Claim on Waterboarding

Kiriakou, a 15-year veteran of the agency's intelligence analysis and operations directorates, electrified the hand-wringing national debate over torture in December 2007 when he told ABC's Brian Ross and Richard Esposito in a much ballyhooed, exclusive interview that senior al Qaeda commando Abu Zubaydah cracked after only one application of the face cloth and water.

…

A cascade of similar acclamations followed, muffling — to this day — the later revelation that Zubaydah had in fact been waterboarded at least 83 times.

…

Now comes John Kiriakou, again, with a wholly different story. On the next-to-last page of a new memoir, The Reluctant Spy: My Secret Life in the CIA's War on Terror (written with Michael Ruby), Kiriakou now rather off handedly admits that he basically made it all up.

Even if torture worked occasionally, I'd oppose it on basic moral grounds. It is disgusting and we should be above it. And in the long run, the more we torture our enemies the more they will torture our soldiers and civilians.

But for those who care, the evidence that torture has worked for us is actually pretty crummy.

The Moral High Ground

On NPR this morning they were noting sarcastically that Iranian President Mahmoud Ahmadinejad had said members of his security forces “may lose their jobs” if they are found guilty of torturing election protesters. The implication was “that's all?”.

And I'm thinking — have we done as much here?

Australian View of John Yoo's Class at Berkeley

Chasers War on Everything is a very funny, biting, satirical Australian TV show. Here's their take on John Yoo (Torture Lawyer) teaching at Berkeley law.

Today's Torture Links

Bob Herbert, NYT, How Long Is Long Enough?

Glenn Greenwald, NPR Ombudsman refuses interview regarding “torture”

Crooks & Liars, New Yorker Magazine Buries Major Abu Ghraib Abuse On Page 6 Of CIA Story

Bush WH Linked to Abu Ghraib

In Establishing the connection between the Bush White House and Abu Ghraib my brother reports on work that connects the dots,

Denying that White House policy was directly responsible for the vile abuse of prisoners at Abu Ghraib has been the central goal of a five-year disinformation campaign by Bush officials. 'Torture Team' author Philippe Sands argues that newly-disclosed records show how blatantly Bush officials were willing to lie in order to lead reporters away from the truth.

Also, other good stuff at Neiman Watchdog.

Public Wants Torture Investigations

If you are reading this blog via the RSS feed — and my logs suggest that is what most readers do — then all of a sudden you are missing out as the comments sections have gotten a lot more lively than they used to be.

If you want to play along, you could either read the blog the old-fashioned way, or you could subscribe to the Comments Feed. Your choice.

Meanwhile, a propos comments, someone recently suggested there that the public had little interest in seeing whether we have war criminals in our midst, and in bringing to justice any who ordered torture. Turns out that's wrong: Research 2000 Poll: Americans Want Investigations,

A significant majority of Americans responding to this week's Research 2000 poll want to see some kind of investigation into the Bush administration's abuses of power.

Asked whether they would prefer a criminal investigation, independent panel, or neither in the use of the Justice Department for political purposes, torture, and warrantless wiretaps, strong majorities in every instance approved some kind of investigation, either in a truth commission type panel, or a criminal probe.

Research 2000 for Daily Kos. 4/27-30. Registered voters. MoE 2%. (No trend lines)

Question: As you may know there have been allegations that the Bush Administration used the Department of Justice for political purposes. Which of the following would you favor the most a criminal investigation into those allegations or an investigation by an independent panel or neither?

Independent Panel 36
Criminal Investigation 29
Neither 18

Question: There have also been allegations that the Bush Administration engaged in torture in terror investigations. Which of the following would you favor the most a criminal investigation into those allegations or an investigation by an independent panel or neither?

Independent Panel 31
Criminal Investigation 22
Neither 22

Question: There have also been allegations that the Bush Administration used telephone wiretaps against American citizens without court warrants. Which of the following would you favor the most a criminal investigation into those allegations or an investigation by an independent panel or neither?

Independent Panel 33
Criminal Investigation 23
Neither 21

Those are significant majorities in every category for some kind of accounting into Bush administration abuses.

The public is slow to rouse, but also slow to forget.

At the Sharp End: The Highest Officials Authorize Torture of a Clerk

Los Angeles Times, Abu Zubaydah's suffering:

He was arrested in Pakistan in March 2002. Because the Bush administration believed him to be a senior Al Qaeda operative his detention and interrogation produced a fistful of firsts. As far as we can tell he is the only prisoner in U.S. history whose interrogation was the subject of debate and direct authorization within the White House and the first to disappear into a secret CIA “black site.”

He was the first prisoner in the “war on terror” to experience the full gamut of ancient techniques adapted by the communists in Korea and 50 years later approved by the Justice Department in Washington. He was the first prisoner to have his interrogations captured on videotape — a practice the CIA ended in late 2002. Two years later the agency destroyed 90 videotapes of Abu Zubaydah s interrogations which resulted in a criminal investigation of government officials connected with the program.

Many questions about his interrogation remain unanswered but two legs of the three-legged stool are firmly in place.

First they beat him. As authorized by the Justice Department and confirmed by the Red Cross they wrapped a collar around his neck and smashed him over and over against a wall. They forced his body into a tiny pitch-dark box and left him for hours. They stripped him naked and suspended him from hooks in the ceiling. They kept him awake for days.

And they strapped him to an inverted board and poured water over his covered nose and mouth to “produce the sensation of suffocation and incipient panic.” Eighty-three times. I leave it to others to debate whether we should call this torture. I am content with the self-evident truth that it was wrong.

Second his treatment was motivated by the bane of our post-9/11 world: rotten intel. The beat him because they believed he was evil. Not long after his arrest President Bush described him as “one of the top three leaders” in Al Qaeda and “Al Qaeda s chief of operations.” In fact the CIA brass at Langley Va. ordered his interrogators to keep at it long after the latter warned that he had been wrung dry.

In fact, he was “a personnel clerk.”

And there's more. It's all horrible.

We must investigate and prosecute those responsible for this atrocity.

The point is not that justice demands that those responsible at the highest levels be held accountable, although justice demands it — and more. The point is not that the victims of torture — some evil, some banal, some perhaps innocent — deserve recompense — although they might. The point is that we in whose name these barbarities were practiced, we who did not take up pitchforks and at least stand by the gates in protest, we owe it to ourselves to confront the truth then dishonor and punish those most responsible. We must make clear that we do not tacitly condone torture, or else we own it.

History teaches that even a firm housecleaning after the fact is at best a temporary vaccination against relapses of the hysteria, idiocy, and moral indifference that inspired this illegality. But it also teaches that lack of accountability ensures a rapid recidivism.

Rice: Just Following Orders

It takes a special person to invoke both the failed Nuremberg defense (“just following orders”) and the failed Richard Nixon defense (“when the President does it, it's not illegal”) in one brief Q&A session, but it seems that former Secretary of State Condoleezza Rice is that special person when it comes to explaining why she signed off on waterboarding.

See Think Progress » Rice Channels Nixon: Since The President Authorized Torture, That Makes It Legal, and play the excruciating video.

Don't Do Nothing

A long, hard, sad read from Group News Blog, but worth it: Habiiti Dawo Ga'an, Habi'do'atiil (I Didn't Choose These Ghosts, They Chose Me). Here's a taste of the start:

One of the strange things about haunting is that one doesn't get to choose the shit that sticks.

I am nobody's hero, I'm flawed grievously. There were a few times when I performed well and was noticed. There were many other times when I fell very short of any mark or goal. Probably those times of shortfall were the bulk of experience.

The main reason I am so worked up over the failure to take a firm, and legal stand against torture is that I know very well the price to be exacted from doing nothing.

While I was in Vietnam, and later Africa, I saw instances of atrocity, murder, torture, and rape. I either did nothing at all, or when I was told it wasn't my business, I shut up, rucked up, and moved on.

I'm told that the author of this piece is a member of the Apache Nation, did three tours in Vietnam with Seal Team Two and was awarded the Silver Star and three Purple Hearts.

The Art of Torture

YouTube - Torture Memos: Waterboarding

Valuable Resource: A Torture Timeline

From Daily Kos: What We Know So Far: A Torture Timeline (Updated).

Useful.

Robert Cover on Torture

Torture being muchly in the news, I offer this quote from Robert Cover, Violence and the Word, 95 Yale L.J. 1601, 1603 (1986):

The deliberate infliction of pain in order to destroy the victim's normative world and capacity to create shared realities we call torture. The interrogation that is part of torture, Scarry points out, is rarely designed to elicit information. More commonly, the torturer's interrogation is designed to demonstrate the end of the normative world of the victim-the end of what the victim values, the end of the bonds that constitute the community in which the values are grounded. Scarry thus concludes that “in compelling confession, the torturers compel the prisoner to record and objectify the fact that intense pain is world-destroying.”· That is why torturers almost always require betrayal-a demonstration that the victim's intangible normative world has been crushed by the material reality of pain and its extension, fear. IS The torturer and victim do end up creating their own terrible “world,” but this world derives its meaning from being imposed upon the ashes of another.6 The logic of that world is complete domination, though the objective may never be realized.

The citations are to ELAINE SCARRY, THE BODY IN PAIN (1985).

Kevin Jon Heller: Legal Background for Torture Lawyer Prosecutions

Opinio Juris Want to Prosecute the Lawyers? Cite Ministries — Not the Justice Case.

Not an area of law that I have studied, but Heller is an expert.

It's Often the Cover-Up that Gets You

An important part of the war crimes defense strategy employed by US torturers has been to plead advice of counsel. This modern version of the 'just following orders' defense has had two strands. Both are unraveling.

As regards the front-line officials who actually laid hands (or insects, as the case may be) on detainees and tortured them, the somewhat plausible claim has been that they were not lawyers, that they were entitled to rely on opinions of the OLC, and that it would be wrong to punish them for trusting the Justice Department.

There are two problems with this argument:

• Some of the CIA torture, and it appears at least one likely murder, preceded the torture memos.
• The argument proves too much: there surely must be some level or torture which no amount of fancy paper, much less mendacious paper, from the OLC could justify. The 'OLC blessed it' argument has some real power in gray areas — but not everything can be turned into a gray area. At some point, quite likely including some of the activities we've been hearing about — waterboarding, slamming people into walls — the acts rise to a level that we can reasonably expect any moral individual to recognize as torture, and for which we justly can and should punish the perpetrators regardless of the soothing orders and opinions on which they relied.

There is less controversy about the higher-ups, the folks who wrote the (shoddy) opinions and gave the (criminal) orders. They don't get to plead advice of counsel. We see the outlines of a different plea in today's news — an ignorance defense. Ignorance of history, that is. That isn't going to work. It isn't going to work because the legal opinions are an internal failure: they are shoddy work, unconvincing, lacking all craft. This was obvious to anyone with any legal training. (See, for example, my instant analysis of one of these reports at Apologia Pro Tormento: Analyzing the First 56 Pages of the Walker Working Group Report (aka the Torture Memo), back in June 2004.)

It also isn't going to work because, it now emerges, the recipient of those CYA memos evinced guilty knowledge. Until now we'd been led to believe that the people in the highest reaches of the White House, the Defense Department, the Justice Department were either stupid enough (Gonzales) or venal enough (Rumsfeld) or crazy enough (Cheney) to believe (or make themselves believe) that the sheaf of torture memos represented a genuine, or at least plausible, legal analysis, a conclusion buttressed by Bush administration groupthink enforced by the systematic exclusion of anyone who might raise a dissenting voice.

Well, turns out it wasn't quite that simple. In Foreign Policy Philip Zelikow, counselor at the Department of State from 2005-07, writes that he offered a cautionary account — and it was suppressed:

I first gained access to the OLC memos and learned details about CIA's program for high-value detainees shortly after the set of opinions were issued in May 2005. I did so as Secretary of State Condoleezza Rice's policy representative to the NSC Deputies Committee on these and other intelligence/terrorism issues.

…

At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn't entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that: The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department's archives.

If the White House had truly believed its legal position was secure, it would not have sought to suppress a dissenting voice. It would be interesting to know who saw the Zelikow memo, and who exactly sought to suppress it. This attempt to flush the truth down a memory hole will not look good should the perpetrator ever find himself or herself in front of a Spanish war crimes tribunal.

Incidentally, for those who harbored the irrational hope that US torture policies at the CIA, Abu Grahib, and Guantanamo were not in fact centrally directed and highly connected, have a look at the Senate Armed Services Committee's latest report on torture which connects all the dots back to the White House and to Rumsfeld.

Today's Sickening Calculation

Emptywheel » Khalid Sheikh Mohammed Was Waterboarded 183 Times in One Month.

I cannot get my mind around how anyone can seriously argue that this isn't certain to happen again unless some people are tried and convicted for these acts of torture.

And, may I add, I'm pretty sick of the NYT's pussyfooting around the word “torture” when it rights writes about this. [Spell check issue, or subconscious editorializing about NYT's politics?]

Another American Radicalized

A far-right, Barack Obama-hating Baptist preacher had a bad encounter with the Border Patrol and made a video about it: Baptist pastor beaten & tazed by Border patrol - 11 stitches.

Maybe the guys who who beat and tased him were operating under advice of counsel? (But seriously, I bet it's only a matter of time before Fox or someone says this is proof that Obama is Hitler or something.)

Don't use this as a model with how to deal with a traffic stop: If law enforcement tell you you're under arrest — which must have happened at some point, although when isn't clear — one should get out of the car if told to. Or even if told to before arrest. Sue them later. (It's ok to ask if one is required to do so or if one is free to go. But if the officer says you're required to comply, do so — and get their name.)

And, even absent arrest, if there's probable cause for a search — like a dog alert — then law enforcement have the right under current law to search the car. Problem here is that there's a fairly credible allegation that the 'dog alert' may have been a fake. As the law stands, however, that doesn't give one a right to resist arrest. It sure sounds like it would have been wiser to get out of the car one the police showed up, at the latest. But it also sounds like despite the Pastor's charming belief that the 4th amendment applied, or would have protected him even if it did, there were several unjustified acts that could serve well for claims of police brutality.

Why do the “Border Patrol” get to set up checkpoints 75 miles from the border? Because in United States vs. Martinez-Fuerte, 428 U.S. 543 (1976), the Supreme Court said they could go up to 100 miles from the border. Which includes pretty the entire state of Florida, since most of it is within 100 miles of the coast!

Click for a bigger picture.

It's not just a Florida problem. Here's the ACLU:

Much of U.S. population affected

• Many Americans and Washington policymakers believe that this is a problem confined to the San Diego-Tijuana border or the dusty sands of Arizona or Texas, but these powers stretch far inland across the United States.
• To calculate what proportion of the U.S. population is affected by these powers, the ACLU created a map and spreadsheet showing the population and population centers that lie within 100 miles of any “external boundary” of the United States.
• The population estimates were calculated by examining the most recent US census numbers for all counties within 100 miles of these borders. Using numbers from the Population Distribution Branch of the US Census Bureau, we were able to estimate both the total number and a state-by-state population breakdown. The custom map was created with help from a map expert at World Sites Atlas.
• What we found is that fully TWO-THIRDS of the United States’ population lives within this Constitution-free or Constitution-lite Zone. That’s 197.4 million people who live within 100 miles of the US land and coastal borders.
• Nine of the top 10 largest metropolitan areas as determined by the 2000 census, fall within the Constitution-free Zone. (The only exception is #9, Dallas-Fort Worth.) Some states are considered to lie completely within the zone: Connecticut, Delaware, Florida, Hawaii, Maine, Massachusetts, Michigan, New Hampshire, New Jersey, New York, Rhode Island and Vermont.

Rebarbative Memos

The ACLU has obtained four critical OLC torture memos as a result of a FOIA request. [link corrected, sorry about that]

Glen Greenwald has some key excerpts.

They are simply disgusting.

President Obama's statement accompanying the release states, “this is a time for reflection, not retribution.”

He's right.

Retribution should not begin until you've finished throwing up.

A Promise Kept

There's been a lot about this liberal Republican administration's economic and imperial policy that I have found hard to swallow, but credit where credit is due, they didn't promise to be any different, and in one important respect an important Democratic promise is being kept: CIA shuts down its secret prisons.

The US has stopped running its global network of secret prisons, CIA director Leon Panetta has announced.

“CIA no longer operates detention facilities or black sites,” Mr Panetta said in a letter to staff. Remaining sites would be decommissioned, he said.

The “black sites” were used to detain terrorism suspects, some of whom were subjected to interrogation methods described by many as torture.

Please don't tell me that the no-longer-very-secret secret prisons are going to be replaced by really secret prisons.

Ungood. Double-Plus Ungood

Obama Justice Department Urges Dismissal of Another Torture Case

In another move that suggests the Obama Department of Justice is not making many big policy breaks with its predecessor when it comes to the legal rights of Guantanamo Bay detainees, the department filed a brief renewing the government's motion to dismiss the case of Rasul v. Rumsfeld.

…

According to their legal complaint, Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed claim they traveled to Afghanistan in October 2001 to offer humanitarian relief to civilians. In late November, they were kidnapped by Rashid Dostum, the Uzbeki warlord and leader of the U.S.-supported Northern Alliance. He turned them over to U.S. custody – apparently for bounty money that American officials were paying for suspected terrorists. In December, without any independent evidence that the men had engaged in hostilities against the United States, U.S. officials sent them to Guantanamo Bay. Over the next two years, they claim — as does a fourth British man — that they were imprisoned in cages, tortured and humiliated, forced to shave their beards and watch their Korans desecrated, until they were returned to Britain in 2004. None were ever charged with a crime.

…

Today, the Justice Department filed a brief arguing, as it did in Padilla’s case against Yoo, that government officials are not liable for torture, abuse, denial of due process or religious rights, because the right of Guantanamo prisoners not to suffer those abuses at the hands of the U.S. government was not clearly established at the time.

That would seem to contradict previous statements by President Obama and Attorney General Eric Holder that torture and other abuses are clearly illegal, now and always.

Yuk.

We'd Like to Know

Emptywheel asks, Who Watched the Torture Tapes?

And since the CIA now admits it destroyed scads of them, that's the question to ask.

Petition for a US Truth Commission

The Bush Truth Commission web site, sponsored by Sen. Patrick Leahy, invites you to sign their online petition.

Some background at Kos.

IntLawGrrls Compare Party Platforms on Torture, Gitmo

IntLawGrrls: A Tale of 2 Platforms is a comparison of the two parties' platforms on the issues of torture and the Guantanamo Bay prison camp.

I know that when a candidate is weak in his own party like McCain, or faces a powerful minority like Obama did with Clinton, platforms often are at least as much a reflection of the party activists than of the candidates' own views, but even so it's pretty telling.

Torture Wasn't About Getting the Truth

I believe it was Mark Twain who said, “Do good and you'll be lonesome.”

Whoever said, the case Air Force Reserve Colonel Steve Kleinman proves its truth. Col. Kleinman is one of the heroes of Jane Mayer's book, “The Dark Side.”

Kleinman was sent to Iraq in the fall of 2003 to offer advice on interrogation, and was horrified to find that military-CIA task forces were abusing prisoners in ways that had been reverse engineered from a torture-resistance training program.

He tried to stop it. As Mayer wrote: “For bucking these direct orders from the top rungs of the Pentagon to inflict illegal levels of cruelty on the prisoners, Kleinman soon found himself 'the least popular officer in the whole country. I got into serious arguments with many people. They wanted to do these things. They were itching to. It was about revenge, not interrogation. And they thought I was coddling terrorists.'”

In a new article at NiemanWatchdog.org, Kleinman asks why the president's legal advisers were so intent on rationalizing the violation of longstanding law in order to adopt an approach –- coercion — that experienced interrogation practitioners agree is not just ineffective, but counterproductive.

Whatever was going on, it doesn't seem to have been about actually getting the truth out of people.

Setting aside the moral arguments against torture, the considerable time and energy spent in establishing a legal justification for harsher methods, such as the so-called “enhanced interrogation techniques,” would have seemed a more reasonable course of action if substantial evidence existed that these methods were objectively of superior operational effectiveness than more traditional approaches and/or had proven necessary in the context of a new dimension of conflict.

The CIA, the agency exclusively authorized to operate under this separate set of standards, did not — and could not — offer objective arguments that would justify such a conclusion.

Of course, this is the administration that doesn't ever let facts get in its way…

An Extraordinary Statement About Torture, Honor, Law, and Country

I've said many times before that the JAGs are heroes of the post-9/11 military. Here's another extraordinary example of this: the closing argument of an Air Force Major, David J. R. Frakt, in Favor of Dismissal of the Case Against Mohammad Jawad (6/19/2008) in a 'combat status review tribunal' [Note 6/24/08: commentator mremer says below that this was a merits hearing, not a CSRT, and based on this aclu blog post, I think he's right] held at Guantánamo. (Transcript via the ACLU.)

There ought be be a medal for this sort of princpled powerful advocacy in service to the nation. Please read it. I've reprinted the full text below to make it easier. (If you care — I'm not sure how relevant it is under the circumstances — you can learn more about the facts of the Mohamed Jawad case from FreeDetainees.org.)

Update: Here's some background on Major and Professor David Frakt.

On Feb 7, 2002, President Bush issued an order. The order stated, in pertinent part “I accept the legal conclusion of the Department of Justice and determine that Common Article 3 of Geneva does not apply to either al Qaeda or Taliban detainees.”

“I determine that the Taliban detainees do not qualify as prisoners of war…al Qaeda detainees also do not qualify as prisoners of war.”

“Our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment… As a matter of policy the United States Armed Forces shall continue to treat detainees humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”

With these fateful and ill-advised words, President Bush, our Commander-in-Chief, perhaps unwittingly, perhaps not, started the U.S. down a slippery slope, a path that quickly descended, stopping briefly in the dark, Machiavellian world of “the ends justify the means,” before plummeting further into the bleak underworld of barbarism and cruelty, of “anything goes,” of torture. It was a path that led inexorably to the events that brings us here today, the pointless and sadistic treatment of Mohammad Jawad, a suicidal teenager.

President Bush’s words were important, and deserve special attention. For those of us in the military who have faithfully attended our annual Law of Armed Conflict training, or in my case, have given the training many times, the Geneva Conventions and humane treatment were synonymous, they were one and the same. The Geneva Conventions represented the baseline, they embodied the determination of the world to make war a more humane enterprise, to prevent a descent into wholesale barbarity, as had occurred during the Second World War. But now we were being told that humane meant something else, something less, than the Geneva Conventions. And we were being told that we could act inconsistently with the Geneva Conventions, when military necessity demanded it. Those of us who were familiar with the Geneva Conventions, whose job it was to know them, were puzzled and deeply troubled by the President’s order and had serious forebodings about the implications of such a decision. We understood that there were no gaps in Geneva, there were was no one who fell outside their protection, that Common Article 3 applied to everyone.

But the civilian political appointees of this administration intentionally cut out the real experts on the law of armed conflict, the uniformed military lawyers, the JAGs, were out of the loop, for fear that their devotion to the Geneva Conventions might pose an obstacle to their intended course of action. The State Department, led by Colin Powell, tried to raise a red flag, but to no avail. Instead, the administration chose to rely on the infamous torture memos by John Yoo, Robert Delahunty and Jay Bybee. These secret memos attempted to redefine torture for the purpose of providing legal cover for administration officials who approved the use of patently unlawful tactics. These legal opinions, now disgraced, disavowed, and relegated to the scrapheap of history where they belong, laid the groundwork for the wholesale and systematic abuse of detainees which ultimately ensnared my client, Mohammad Jawad.

I’m sure that all of these people, the President included, thought they were doing what was best. But what sometimes appears to be in the interests of America at first glance, upon further reflection reveals itself not to be. Interning Japanese-Americans during World War II perhaps seemed like a good idea at the time, but in hindsight we can see that it was a terrible injustice, inconsistent with American ideals and utterly unconstitutional. It is a shameful episode in our history, a xenophobic overreaction. The conscious, deliberate decision to abandon the Geneva Conventions and the entire fiasco that is Guantanamo will undoubtedly be viewed by historians as an even more disgraceful chapter in our history.

The Feb 7, 2002, order of President Bush invited the rule of law to be circumvented. Even though the President paid lip service to humane treatment, by stating that detainees were not legally entitled to be treated humanely, and by his qualification of “to the extent appropriate and consistent with military necessity” the implication was clear — it was only policy to be humane, not a legal requirement, and there would be no legal consequences to those who didn’t treat detainees humanely, if there was some military justification for it. Of course, during a “global war,” it is possible to rationalize almost anything under the general rubric of military necessity. After all, if there is even a slight possibility that some military advantage might be gained by some course of action, don’t we owe it to our troops to do it? If there is even a minute chance that some sliver of intelligence might be gleaned about an impending terrorist attack, don’t we owe it to the American people to do everything in our power to extract it? The obvious answer to most of those working in detainee operations at Guantanamo and elsewhere was “Yes.”

Adding to the pervasive atmosphere of lawlessness in the early days of Guantanamo was the administration’s assertion that the detainees could be held indefinitely without charge, without access to counsel, without any recourse to challenge their detention. The administration asserted that the detainees were beyond the reach of any federal court and were not eligible for habeas corpus, a hallowed right guaranteed by the founding fathers of this great country. In effect, the administration created a legal black hole at Guantanamo, a policy universally decried by our even our staunchest allies in the war on terror, but steadfastly defended by the administration.

If there was any doubt that the President intended unlawful tactics to be used, all doubt was erased when Secretary of Defense Rumsfeld authorized, on Dec 2, 2002, numerous extra-legal special interrogation techniques. These techniques and how they were developed and utilized were the subject of hearings before the Senate Armed Service Committee yesterday and are described in detail in the book Torture Team, which I have attached to this motion. I’m sure Phillipe Sands would be honored to have his book included in the record of this commission.

Eventually, cooler and wiser heads started to inject some rationality into the treatment of the Guantanamo detainees. Unsung heroes like Alberto Mora, Navy General Counsel, and Admiral Jane Dalton, and the service TJAGs Gen Rives, Gen Romig, fought vigorously for the restoration of Geneva. But it ultimately took the intervention of the Supreme Court to restore the rule of law to Guantanamo. The Court intervened and made it clear that the Geneva Conventions did apply to detainees at Guantanamo, and that they did have the right to habeas corpus, a right that Congress has twice, unsuccessfully, attempted to take away. This fight to restore the rule of law took time, years in fact, in which the detainees of Guantanamo continued to suffer indignity and inhumanity. It was not until July 2006 when the Deputy Secretary of Defense Gordon England issued a memorandum stating that “common Article 3 of the Geneva Convention applies as a matter of law“ to the treatment of detainees held by the Department of Defense, and that the “humane treatment [is] the overarching requirement of Common Article 3.” Unfortunately, by then, the damage had already been done, both to the detainees and to the reputation of the United States as a law-abiding country.

America is a nation founded on a reverence for the rule of law. We should never forget that when we take an oath to enlist or be commissioned as an officer in the United States Armed Forces, we do not swear to defend the United States, we swear “to support and defend the Constitution of the United States against all enemies, foreign and domestic.” The Oath of Office for the President contains similar words: “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” Tragically, under the undeniably heavy pressure to defend Americans from terrorist attack, some of our military and civilian leaders lost sight of their obligation to defend the Constitution as well.

Under the Constitution all men are created equal, and all are entitled to be treated with dignity. No one is “undeserving” of humane treatment. It is an unmistakable lesson of history that when one group of people starts to see another group of people as “other” or as “different,” as “undeserving” as “inferior,” ill-treatment inevitably follows. In the Global War on Terror generally and in the detention camps of Guantanamo especially, the detainees were seen as “terrorists,” as “the worst of the worst” something less than human, and were treated accordingly. After six and a half years, we now know the truth about the detainees at Guantanamo: some of them are terrorists, some of them are foot soldiers, and some of them were just innocent people, caught in the wrong place at the wrong time. But the detainees at Guantanamo have one thing in common — with each other, and with us — they are all human beings, and they are all worthy of humane treatment. We should also never forget that no one in Guantanamo has been convicted of a single crime and that even in these deeply flawed military commissions, they are entitled to a presumption of innocence.

Throughout the Global War on Terror we have heard repeatedly from our military and civilian leaders that this was a new kind of war, a war that requires new methods, new ideas, “thinking outside the box.” So that is what the highly creative and motivated people at Guantanamo did, they abandoned the tried and true and lawful methods of Army Field Manual 34-52 and wrote a new playbook, a playbook that included intimidation with dogs, sexual humiliation, and sleep deprivation. These and other methods were employed at Guantanamo and, as the Schlesinger report put it, migrated to Abu Ghraib, where they resulted in the shocking conduct portrayed in the infamous photographs. The Secretary of Defense said “take the gloves off” and the soldiers and sailors of Guantanamo saluted smartly and said, “Yes, Sir!” In fact, many of the illegal and abusive “enhanced” interrogation techniques were personally approved for use by the Secretary of Defense; other techniques, like the frequent flyer program, were simply invented on the fly.

The public revelation of the events at Abu Ghraib on 60 Minutes II in late April 2004, caused the Department of Defense to go into full damage control mode. As part of the damage assessment, Secretary Rumsfeld dispatched the Navy Inspector General, Vice Admiral Church, to Guantanamo to evaluate the treatment of detainees there. He visited Guantanamo from May 5 to May 7, 2004, and reported back to the Secretary and to the press that there was virtually no detainee abuse at Guantanamo, and that everything was in order. Gen Hood was running a tight ship. Detainees received great treatment. Incredibly, the very day that Admiral Church was investigating conditions at Guantanamo and finding the treatment of detainees to be so wonderful, detention officials at Guantanamo ordered the initiation of the frequent flyer program on Mohammad Jawad. Before the wheels of Admiral Church’s plane were even off the Guantanamo runway, Mohammad Jawad’s arms and legs were being shackled in preparation for the first of 112 moves up and down the hall of L Block, every 3 hours for the next 14 days. While Jawad was being shackled for the first of these moves, back on Capitol Hill, Secretary of Defense Rumsfeld was testifying before the Senate and House Armed Services Committees, reassuring the nation that the abuse at Abu Ghraib was isolated to a few rogue guards. When Secretary Rumsfeld testified before the HASC on May 7, 2004, the day the torture of Mohammad Jawad commenced, he told Congress, in reference to those detainees who had been abused at Abu Ghraib, Quote “I am seeking a way to provide appropriate compensation to those detainees who suffered such grievous and brutal abuse and cruelty at the hands of a few members of the U.S. military. It's the right thing to do.” Today, the government takes a decidedly different tack. They deny the suffering of Mr. Jawad, accusing him of being weak. And they are attempting to reward him by pressing forward with the first war crimes trial against a child soldier in the history of the civilized world.

Major General Hood the JTF-GTMO Commander who took command in March 2004, states that he ordered the frequent flyer program stopped in late March 2004. He says he did not authorize and would not have authorized the program to be administered to Mohammad Jawad. Gen James T. Hill, the Southcom Commander, the person to whom Maj Gen Hood reported directly, states that he did not authorize the frequent flyer program, did not know about it, and that is was contrary to his orders which required prior approval for sleep deprivation and limited it to four days. The Joint Detention Group Commander, Maj Gen Cannon disavows any knowledge of Mr. Jawad’s treatment, in fact, MG Cannon seems to have developed a very convenient case of amnesia. The Joint Intelligence Group Director, Esteban Rodriguez, doesn’t know about Jawad’s treatment specifically, but states that there was a second, unauthorized frequent flyer program carried out by the Joint Detention Group used as a form of disciplinary measure. He said, as did Maj Gen Hood, that there was no special effort to collect intelligence from Mr. Jawad, that he was not believed to possess any valuable intelligence. This is borne out by the fact, at least based on the information provided to me by the government, that no interrogations of Mr. Jawad took place at or near the time that he was being tortured. Thus, the most likely scenario is that they simply decided to torture Mr. Jawad for sport, to teach him a lesson, perhaps to make an example of him to others. Whatever the reason, it was a direct violation of MG Hood’s orders, and a grave breach of the Geneva Convention and the Convention against Torture.

According to MG Hood, the first he learned of this is when I informed him a couple of weeks ago. He was provided the DIMS report, the motion, and the spreadsheet that I prepared. What was his reaction? A resounding thud of indifference. In fact, it took an order from you, your honor, to even get him to talk me about it. Here was a Major General in the Army who has just learned that a detainee was subjected to grave abuse, on his watch, in direct violation of his orders. One would have expected him to go through the roof, to order heads to roll, to launch an immediate investigation and he couldn’t even be bothered. Quite a contrast from the way General Hartmann reacted when he thought his orders weren’t being followed.

As for MG Cannon, he was similarly apathetic, if not more so about the plight of Mohammad Jawad. It is an absolute disgrace that this officer has been promoted twice after allowing a suicidal teenager to be subjected to this kind of abuse in his detention facility. It is my recommendation that charges be preferred against MG Cannon under the UCMJ for cruelty, maltreatment and abuse, dereliction of duty, and violation of a lawful order at the earliest opportunity. He was the Commander of the Detention Group. He completely and utterly failed to prevent the flagrant abuse of a detainee under his protection. It is high time that someone in a position of authority be held accountable, and not just the guards who were carrying out orders this time.

Why was Mohammad Jawad tortured? Why did military officials choose a teenage boy who had attempted suicide in his cell less than 5 months earlier to be the subject of this sadistic sleep deprivation experiment? Not that anything would justify such treatment, of course, but at least in the case of the other detainees known to have been subjected to sleep deprivation, they were believed to possess critical intelligence that might save American lives. Unfortunately, we may never know. I’ve asked to speak to the guards who actually carried out the program, and I’ve been denied. In the absence of information to the contrary, which the government would surely provide if it existed, we are left to conclude that it was simply gratuitous cruelty.

The government admits that Mohammad Jawad was treated “improperly,” but offers no remedy. We won’t use any evidence derived from this maltreatment, they say, but they know that there was no evidence derived from it because the government didn’t even bother to interrogate him after they tortured him. Exclusion of non-existent evidence is not a remedy. Dismissal is a severe sanction, but it is the only sanction that might conceivably deter such conduct in the future.

February 7, 2002. America lost a little of its greatness that day. We lost our position as the world’s leading defender of human rights, as the champion of justice and fairness and the rule of law. But it is a testament to the continuing greatness of this nation, that I, a lowly Air Force Reserve Major, can stand here before you today, with the world watching, without fear of retribution, retaliation or reprisal, and speak truth to power. I can call a spade a spade, and I can call torture, torture.

Today, Your Honor, you have an opportunity to restore a bit of America’s lost luster, to bring back some small measure of the greatness that was lost on Feb 7, 2002, to set us back on a path that leads to an America which once again stands at the forefront of the community of nations in the arena of human rights.

Sadly, this military commission has no power to do anything to the enablers of torture such as John Yoo, Jay Bybee, Robert Delahunty, Alberto Gonzales, Douglas Feith, David Addington, William Haynes, Vice President Cheney and Donald Rumsfeld, for the jurisdiction of military commissions is strictly and carefully limited to foreign war criminals, not the home-grown variety. All you can do is to try to send a message, a clear and unmistakable message that the U.S. really doesn’t torture, and when we do, we own up to it, and we try to make it right.

I have provided you with legal authority for the proposition that you have the power to dismiss these charges. I can’t stand before you and say that you are legally required to do so. But I can say that that it is a moral imperative to do so, and I ask that you do so.

US Accused of Regime of Secret Floating Prisons

According to an article by Duncan Campbell and Richard Norton-Taylor in the Guardian, the US has a series of floating prisons in which people are held and questioned in a law-free regime. See US accused of holding terror suspects on prison ships for the grisly story.

A few snippets:

According to research carried out by Reprieve, the US may have used as many as 17 ships as “floating prisons” since 2001. Detainees are interrogated aboard the vessels and then rendered to other, often undisclosed, locations, it is claimed.

Ships that are understood to have held prisoners include the USS Bataan and USS Peleliu. A further 15 ships are suspected of having operated around the British territory of Diego Garcia in the Indian Ocean, which has been used as a military base by the UK and the Americans.

…

Clive Stafford Smith, Reprieve's legal director, said: “They choose ships to try to keep their misconduct as far as possible from the prying eyes of the media and lawyers. We will eventually reunite these ghost prisoners with their legal rights.

“By its own admission, the US government is currently detaining at least 26,000 people without trial in secret prisons, and information suggests up to 80,000 have been 'through the system' since 2001. The US government must show a commitment to rights and basic humanity by immediately revealing who these people are, where they are, and what has been done to them.”

(My emphasis — can this really be true? Is this 'secret prison' number including all the Iraqi detainees in camps in Iraq, or is there some other network of major camps?)

The Guardian article is based on a forthcoming report from an NGO called Reprieve. The Clive Stafford Smith quoted in the article heads Reprieve-UK, which describes itself as follows:

Reprieve provides frontline investigation and legal representation to prisoners denied justice by powerful governments across the world, especially those governments that should be upholding the highest standards when it comes to fair trials.

Reprieve lawyers represent people facing the death penalty, particularly in the USA, or when those facing execution are British nationals. And we represent prisoners denied justice in the name of the ‘War on Terror’, including those held without charge or trial in Guantánamo Bay and the countless secret prisons beyond. None of these prisoners can afford to pay for representation.

It has been said that you can judge a society by how it treats people accused of violating its laws. Through the example set by the world’s most influential nations, fundamental human rights principles stand or fall across the world.

Reprieve uses international and domestic law as a tool to save lives, deliver justice and make the case for world-wide reform.

Brad DeLong Writes a Letter About a Suspected War Criminal on His Campus

My friend Brad DeLong has written a clever letter:

UNIVERSITY OF CALIFORNIA, BERKELEY

PROFESSOR J. BRADFORD DELONG
DEPARTMENT OF ECONOMICS, UNIVERSITY OF CALIFORNIA AT BERKELEY
BERKELEY, CALIFORNIA 94720-3880

RESEARCH ASSOCIATE, NATIONAL BUREAU OF ECONOMIC RESEARCH

EMAIL: delong@econ.berkeley.edu

TEL: 510-643-4027; FAX: 510-642-6615

May 6, 2008

Professor William Drummond
Chair, Academic Senate, Berkeley Division
Stephens Hall
University of California

Dear Professor Drummond:

As we discussed this morning, I write this as a consequence of reading what Boalt Dean Chris Edley calls the "Torture Memo" of Professor John Yoo—which horrified me. I write to ask you to appoint a special committee to examine the matter of Professor John Yoo--the matter that Boalt Hall Dean Chris Edley has named "The Torture Memo and Academic Freedom"—the role played by John Yoo in the Bush administration"s policy of subjecting to torture not high-ranking Al Qaeda members with information about ticking bombs but low-level prisoners irrespective of their guilt or innocence or of any information suggesting their guilt or innocence.

I ask you to appoint to this special committee members of the faculty with expertise in moral philosophy, the role of the university, international relations, human rights, and constitutional law. I ask you to instruct this committee to write of a public report to the Academic Senate no later than this Labor Day, advising the Senate of the pros and cons of actions that the Academic Senate might or might not take in the matter of Professor John Yoo, including but not limited to:

(I) no action, as Professor Yoo"s actions while on leave at the Office of Legal Counsel have been misrepresented in the press and on the internet, and he has been defamed.

(II) no action, as Professor Yoo's "Torture Memo" and related work while on leave at the Office of Legal Counsel are protected under academic freedom or are otherwise not germane to his status at Berkeley.

(III) a complaint to Executive Vice Chancellor and Provost George Breslauer calling for the censure of Professor Yoo for actions while on leave at the Office of Legal Counsel that amount to one or more of:

(A) a breach of professional legal ethics, with respect to the duty that a lawyer and above all a law school teacher who educates future lawyers owes his clients to inform them truthfully and completely of the state of the law;

(B) work performed for the Office of Legal Counsel sufficiently misleading to rise to the same level in a professional school as work that violates the principles of scholarly integrity reaches elsewhere in the university;

(C) participation in a conspiracy to violate U.S and international law by torturing detainees, detainees whose guilt in the acts of or even association with Al Qaeda was not only not proven but not even likely.

(IV) a complaint to Executive Vice Chancellor and Provost George Breslauer calling for the dismissal of Professor Yoo for actions while on leave at the Office of Legal Counsel that are, et cetera.

If you have not read John Yoo"s recently-released "Torture Memo," and have not been as horrified and appalled as I am, I strongly urge you to read it in full.

However, after reading the "Torture Memo" I found myself frozen, with no firm or settled judgment as to what appropriate action is in this context. I lack sufficient knowledge of the facts. I lack sufficient expertise on the issues. Thus I want you to appoint a special committee to write a report because I am enough of a liberal and enough of an academic to believe that discussion of these issues will help.

On the one side there are the claims of academic freedom, enunciated most strongly by our own medieval historian Ernst Kantorowicz just before his resignation from the faculty in protest. He said:

There are three professions which are entitled to wear a gown: the judge, the priest, the scholar. This garment stands for its bearer's maturity of mind, his independence of judgment, and his direct responsibility to his conscience and his god. It signifies the inner sovereignty of those three interrelated professions: they should be the very last to allow themselves to act under duress and yield to pressure. It is a shameful and undignified action, it is an affront and a violation of both human sovereignty and professional dignity that the Regents of this university have dared to bully the bearer of this gown into a situation in which--under the pressure of bewildering economic coercion--he is compelled to give up either his tenure or, together with his freedom of judgment, his human dignity and responsible sovereignty as a scholar...

In Professor Kantorowicz's view, a Berkeley faculty member should be allowed to state whatever his or her judgment leads him to state--even if it is that the government of the United States should be overthrown by force and violence--and that no pressure or threats of any kind should be applied to discourage him from saying what he or she decides to say.

On the other side there are at least four interrelated considerations.

The first consideration is that Professor Yoo is professor at a professional school, Boalt Hall, and thus must teach and model professional behavior that will be expected of his students as lawyers. Professor Yoo failed in his Torture Memo to make any reference to the Korean War case of Youngstown, an essential part of any good-faith contemporary analysis of the war powers of the executive branch. This failure to analyze and other deficiencies in the memorandum make it, I have been told, a serious breach of professional ethics--misconduct in failing to fulfill his professional duty to provide his clients with a complete and truthful statement of the law. Writing legal arguments that ignore (not find some way to distinguish, but flatly ignore) controlling precedent is misconduct. Students learning to be lawyers need to be protected from coming to believe that it is an acceptable part of lawyering.

The second consideration is that the work product for others outside the university performed by faculty who teach at professional schools plays a role analogous to that of academic research in other branches of the university. I am informed by some that the argumentative omissions and misrepresentations in the Torture Memo and in other work by John Yoo for the Office of Legal Counsel amount to misconduct that rises to a level equivalent to that of falsifying evidence in a scholarly work. As one attorney observed, "while outside legal work isn't formally scholarship, it has its own ethical obligations." The absence of relevant Supreme Court precedent from the Torture Memo is a "failure to meet the standards of practice required by the legal profession [that] appears... close enough to a failure to abide by the standards of the scholarly profession that it can be treated as an equivalent level of scholarly misconduct."

The third consideration is that some claim that Professor Yoo was not just an advisor, informing those whom Boalt Dean Chris Edley calls the "deciders"--George W. Bush, Richard Cheney, George Tenet, and Donald Rumsfeld--his view of what the law was. Professor Yoo was an implementer. The decision had already been made to torture detainees of unknown but probably low value who there was no reason to think had any knowledge of any possible "ticking bomb." Attorneys at the CIA and the Department of Defense were protesting that this policy of routine torture was illegal: contrary to U.S. and international law and treaty, and exposed them to potential criminal sanctions. Professor Yoo was asked not to provide an opinion but to write a document to override objections to an already settled-upon course of action, making wrongful use of the opinion-issuing power the Attorney General possesses within the executive branch to silence lawyers who had correctly evaluated the legal framework--and so cramdown the torture policy by issuing what was essentially a "get out of jail free" card in the guise of an OLC opinion. This, I am informed by some, may be a crime. I am informed that the standard, under treaties that are the law of the land in the U.S., is that an act of legal advice that materially contributes to the perpetration of acts of torture and cruel, inhuman, or degrading treatment is a criminal act if the actors were at minimum reckless as to the consequences of their advice: it is necessary only that the actors have accepted that their conduct could possibly and forseeably lead to the commission of a crime, not that they have known the exact crime that was contemplated and was to be committed.

The fourth consideration is that it is a key part of our society that our lawyers in the common-law tradition have no association with torture--that it is part of their professional identity to know nothing of the rack, the thumbscrew, the strappado, induced hypothermia, and the water torture. So William Blackstone wrote centuries ago. A rack had been set up in the Tower of London by the Duke of Exeter under Henry IV, and had been used by Queen Elizabeth to torture Jesuits, and by King James I to torture conspirators in the aftermath of the Gunpowder Plot--a true ticking bomb. But, William Blackstone proudly stated, this rack had always been "an engine of state, and not of law." Some inform me that John Yoo's role in making the strappado and the water torture--which Bush administration members of the twenty-first century speak of in euphemisms as "severe interrogation methods," just as the Elizabethans of the sixteenth century would speak of taking prisoners to embrace "the Duke of Exeter's daughter"--routine bureaucratic policy is enough of a breach of professional ethics to make him unsuited to teach in a law school.

I cannot evaluate these considerations. The facts are unclear. I have no special expertise in moral philosophy, professional ethics, the role of the university, international relations, human rights, or constitutional law. I am out of my depth. But I do know that these are vitally important issues--and I firmly believe that Berkeley as an institution does itself no good service if it does not publicly address the matter of John Yoo, and does not face us with an extraordinarily sharp conflict between powerful principles.

And so I ask that this matter be referred to a committee that has the proper expertise: a committee that can properly weigh the considerations of moral philosophy, professional ethics, the role of the university, international relations, human rights, and constitutional law, and publicly set out its conclusions and our options. I do this in the classical liberal belief that argument and discussion are good, and will make us see these issues more clearly.

Sincerely yours,

J. Bradford DeLong
Professor of Economics

This is a smart letter. It may seem knavish to quibble, but I'm going to anyway.

First, a minor point: I personally don't believe that the standards of care or competence should be any different in a professional school than in the sciences or in economics. So I'm puzzled about the first point -- would we make such arguments about physicists or engineers who messed up calculations on the space shuttle? I'd make a similar argument about the second point: if Yoo was on leave when he did what he's accused of, tenure protects him from official repercussions at Berkeley, even if it was supremely shoddy work (which it was: see Apologia Pro Tormento: Analyzing the First 56 Pages of the Walker Working Group Report (aka the Torture Memo) and Were the Torture Memos Just Normal Lawyering?).

The key point for me is the third one. I believe the case against Berkeley's retention of Yoo is actually stronger than the "third consideration" above suggests. The worst case is not that Yoo went along with a policy already made, but rather that he was a necessary and willing participant in the commission of war crimes.

I repeat: the case against Yoo isn't about some article he published, or some view he took on some issue, or that he gave an abstract opinion in government. It's a claim that he materially participated in a war crime. Not some misdemeanor or felony. A war crime.

Under international law, any act that materially contributes to the perpetration of a war crime can make the actor an accomplice if the act is performed with the requisite intent.75 Yoo and Bybee may not have intended for acts of torture and cruel, inhuman, or degrading treatment to take place, but they were at minimum reckless as to the commission of such acts.76 Yoo and Bybee's recklessness in this regard appears to meet the intent requirement for aiding and abetting war crimes under international law.77 As the International Criminal Tribunal for Yugoslavia ("ICTY") expressed in Prosecutor v. Kvocka,78 "[t] he aider and abettor must. . . at least have accepted that such a commission of a crime would be a possible and foreseeable consequence of his conduct.... [I]t is not necessary that the aider or abettor know the precise crime that was intended or which was actually committed.

If Yoo's actions met this standard then he's a war criminal. And if he's ever adjudged a war criminal by a competent tribunal, I presume most sensible people would agree that he has no business being a professor of anything.

In the ordinary course, if there were any grounds to expect that a competent prosecutor or tribunal would at some reasonably proximate time become seized of this issue and make a reasoned judgment, I'd be inclined to say it is acceptable for Berkeley let it go until then. (That seems to be what Christopher Edley, Jr. both says Berkeley's rules require and what he personally advocates.) But for obvious political reasons I suspect that there is little realistic chance of a serious investigation in the USA as to whether war crimes were committed by the Bush administration, and if so who is responsible. That's a pity, but it seems the most likely state of affairs, and one has to reason and plan based on what seems likely. Prosecutions abroad are less unlikely, but if the alleged perpetrators don't travel to the jurisdictions most likely to act, that too will not come to pass. One certainly cannot reasonably rely on them.

What, then, is a great University like Berkeley to do if it comes to fear it may be harboring a war criminal in its midst? It cannot rely on external forces to solve the problem for it. Mob rule -- firing someone because people are baying for their job -- is not the answer, although collective shunning might be a good first move. Universities are not well set up to adjudicate a dispute as to whether a professor committed a war crime. Yet the difficulty of the task (and, one hopes, the rarity of the need to face it) is not in my opinion an excuse for doing nothing. This appears to be a minority view: for what seems to be the majority view see Leiter, or the various posts at Balkanization -- although most proponents of the "drop it now" view don't address what I see to be the key issue: the ground for discharging Yoo, if there is one, is the all-too-plausible allegation that he took part in a war crime. Not just advocated one from the ivory tower, but committed or aided and abetted the commission of actions prohibited by our law, by jus cogens, and by any standard of decency. The countervailing problem is that this claim is extremely difficult to adjudicate in a University setting, and his tenure demands no less than some initial test for substantial cause, followed by a full and fair proceeding. That is asking a lot of a University, which after all is in the education business, not the war crimes adjudication business.

Brad's letter is smart because it asks the University to frame the problem and examine how it might be solved. Perhaps that will be a first step to a resolution. Perhaps Berkeley's rules do not create an avenue for one.

Perhaps we will learn something.

Torture Nation ("Is The US Now A Non-Geneva State?")

Andrew Sullivan, Is The US Now A Non-Geneva State?:

The manner in which free societies lose their moral compass is always incremental. Step by step by step, certain core values are whittled away. There is rarely a moment at which a government stands up, and asks its people if they wish to abandon such “quaint” notions as the Geneva Conventions, the rule of law, humane interrogation or habeas corpus. These things are abandoned incrementally or secretly, slice by slice, euphemism by euphemism, the chronology always clearer in retrospect than at the time. And each incremental step is always portrayed as a small but essential temporary sacrifice for the sake of security in a time of great and imminent peril.

And so defenders of torture have long argued that is is essential to make torture legal - but only in the ticking time bomb scenario. And yet, such a scenario has not yet happened and the United States has still indisputably abused and dehumanized thousands of prisoners in its custody, “disappeared” and tortured hundreds, and seen more than a dozen die in “interrogation”. We now know, moreover, the following undisputed facts: the president of the United States and his closest advisers devised, orchestrated and monitored interrogation methods banned by the Geneva Conventions at Guantanamo Bay and subsequently in every theater of combat; these techniques were used not only in the extra-legal no-man's land of Guantanamo Bay but also at the prison at Abu Ghraib where photographic evidence of many of the actual techniques explicitly authorized by the president - stress positions, hoods, mock-executions, etc. - was incontrovertible. We now know that those techniques that the president expressed “shock” at were already explicitly authorized for use by other agents by him long before Abu Ghraib was exposed.

Read the rest. It's good.

The Groupthink of Evil

Recently I've avoided writing anything serious about torture — or the ongoing revelations about the Administration's vivisection of the Constitution — because it is just overwhelmingly depressing and I can't find the right words to express how awful it is.

And because Congress remains basically supine. Which is also depressing.

And because the press is still treating most of these scandals as one-day stories on page 23. Which is also depressing.

But even in this fog of despond, I have to draw your attention to Marty Lederman's excessively fine post today, “The Underdeveloped Jurisprudence of the Forcing/Pouring Distinction”.

A Student Demonstrates How to Deal With John Ashcroft

Daily Kos: John Ashcroft Yelled at Me Tonight. No Joke. (UPDATED W/PHOTOS)

I think it's a shame that any college group would choose to invite a person who appears to be a war criminal to speak — although I think one should also note that Ashcroft's personal participation in what appear to be war crimes may not have been as clear at the time this invitation was issued — but I think that this Knox College student demonstrates what part of the response should be.

And, of course, the really incredible thing is that even with the latest revelations, from what we know, Ashcroft was not the worst of the lot.

What He Said (War Crimes Trials Dept.)

There's A War Crimes Tribunal in Your Future.

I've been saying this for a long time, and think it is as true, or more true, than ever. The critical issue, though, is not so much the presence of absence of immunity for various actors so much as a national unwillingness to bring the guilty to justice. Only when a nation will not police its own does the international community have a right (and duty) to step in.

PS. Read the article by Philippe Sands, The Green Light, that Balkin links to.

Isn't It Time to Stop (Torture Dept.)

The Washington Monthly has a special issue NO MORE: No Torture. No Exceptions..

In most issues of the Washington Monthly, we favor articles that we hope will launch a debate. In this issue we seek to end one. The unifying message of the articles that follow is, simply, Stop. In the wake of September 11, the United States became a nation that practiced torture. Astonishingly—despite the repudiation of torture by experts and the revelations of Guantanamo and Abu Ghraib—we remain one. As we go to press, President George W. Bush stands poised to veto a measure that would end all use of torture by the United States. His move, we suspect, will provoke only limited outcry. What once was shocking is now ordinary.

On paper, the list of practices declared legal by the Department of Justice for use on detainees in Guantanamo Bay and other locations has a somewhat bloodless quality—sleep deprivation, stress positions, forced standing, sensory deprivation, nudity, extremes of heat or cold. But such bland terms mask great suffering. Sleep deprivation eventually leads to hallucinations and psychosis. (Menachem Begin, former prime minister of Israel, experienced sleep deprivation at the hands of the KGB and would later assert that “anyone who has experienced this desire [to sleep] knows that not even hunger and thirst are comparable with it.”) Stress positions entail ordeals such as being shackled by the wrists, suspended from the ceiling, with arms spread out and feet barely touching the ground. Forced standing, a technique often used in North Korean prisons, involves remaining erect and completely still, producing an excruciating combination of physical and psychological pain, as ankles swell, blisters erupt on the skin, and, in time, kidneys break down. Sensory deprivation—being deprived of sight, sound, and touch—can produce psychotic symptoms in as little as twenty-four hours. The agony of severe and prolonged exposure to temperature extremes and the humiliation of forced nudity speak for themselves.

Then there is waterboarding, a form of mock execution by drowning, a technique that has been used in so-called “black sites.” In addition to the physical pain and terror it induces, long-term psychological effects also haunt patients—panic attacks, depression, and symptoms of post-traumatic-stress disorder. It has long been prosecuted as a crime of war. In our view, it still should be.

Ideally, the election in November would put an end to this debate, but we fear it won't. John McCain, who for so long was one of the leading Republican opponents of the White House's policy on torture, voted in February against making the CIA subject to the ban on “enhanced interrogation.” As for Hillary Clinton and Barack Obama, while both have come out strongly against torture, they seldom discuss the subject on the campaign trail. We fear that even a Democratic president might, under pressure from elements of the national security bureaucracy, carve out loopholes, possibly in secret, condoning some forms of torture.

Over the past decade, voters have had many legitimate worries: stagnant wages, corruption in Washington, terrorism, and a botched war in Iraq. But we believe that when Americans look back years from now, what will shame us most is that our country abandoned a bedrock principle of civilized nations: that torture is without exception wrong.

It is in the hopes of keeping the attention of the public, and that of our elected officials, on this subject that the writers of this collection of essays have put pen to paper. They include a former president, the speaker of the House, two former White House chiefs of staff, current and former senators, generals, admirals, intelligence officials, interrogators, and religious leaders. Some are Republicans, others are Democrats, and still others are neither. What they all agree on, however, is this: It was a profound moral and strategic mistake for the United States to abandon long-standing policies of humane treatment of enemy captives. We should return to the rule of law and cease all forms of torture, with no exceptions for any agency. And we should expect our presidential nominees to commit to this idea. —The Editors

There are articles by the following luminaries:

• Bob Barr
• Rand Beers
• Peter Bergen
• Jimmy Carter
• Steve Cheney
• Amy Chua
• Richard Cizik
• Wesley K. Clark
• Jack Cloonan
• Chris Dodd
• Kenneth M. Duberstein & Richard Armitage
• Eric Fair
• Carl Ford
• Lee F. Gunn
• Chuck Hagel
• Lee H. Hamilton & Thomas H. Kean
• Gary Hart
• John Hutson
• Claudia Kennedy
• John Kerry
• Harold Hongju Koh
• Carl Levin
• Richard Lugar
• Leon E. Panetta
• Nancy Pelosi
• William J. Perry
• Paul R. Pillar
• Tim Roemer
• John Shattuck
• Anne-Marie Slaughter
• Theodore C. Sorensen
• William H. Taft IV
• Thomas G. Wenski
• Lawrence B. Wilkerson
• Steve Xenakis

They Have No Shame

Bush Announces Veto of Waterboarding Ban

McCain Votes Against Banning Waterboarding

Maverick Fails The Test: McCain Votes Against Waterboarding Ban.

He was against torture before he voted for it.

Timeline of CIA Torture Tape Destruction

This looks to be a careful and thorough effort: Complete 911 Timeline: Destruction of CIA Interrogation Tapes.

The site is slow — maybe a lot of demand?

Worse Than Kafka

Seen on a mailing list:

The irony of all this is overwhelming: CIA gets investigated for destroying tapes of torturing people, not for torturing people.

'What is Wrong with These People?'

The Carpetbagger Report summarizes The right's deranged support for waterboarding.

Each of the following was said recently by a different GOP office-holder, leader, or pundit,

• “There are different ways of doing it. It’s like swimming, freestyle, backstroke.”
• “One man’s torture is another man’s CIA-sponsored swim lesson.”
• opposition to waterboarding is “part of the Democrat blame America first” agenda and goes “right along with their desire to close Guantánamo, where the terrorists are gaining weight on American menus that include honey-glazed chicken and rice pilaf.”
• Waterboarding is something of which every American should be proud.

As Steve Benen correctly asks, What is wrong with these people?.

It's Starting to Hit the Fan

Like a dam weakening, the little trickle of news about misdeeds at Guantanamo and in CIA torture labs is becoming a bigger trickle.

• ABC News, CIA Spy Calls Waterboarding Necessary But Torture (but see Kevin Drum)
• AWOL Military Justice: Morris D. Davis explains why he resigned as Chief Prosecutor at Guantanamo. (It's because they put a torture advocate above him in the chain of command). And although Congress would like him to testify, the Pentagon has refused to let him. (Will Congress use the power of the purse to force testimony? Unlikely)
• Marty Lederman explains why Congress's intelligence oversight desperately needs an overhaul
• Independent Online Edition, CIA photos 'show UK Guantanamo detainee was tortured'

Can we hope for a flood of revelations now?

Bonus: Emily Bazelon and Dahlia Lithwick, If the CIA hadn't destroyed those tapes, what would be different?

Senators and Representatives Could Have Spoken Out On Waterboarding: the Constitution Protects Their Right to Speak Out Without Fear of Legal Consequences

A number of the best internet commentators are discussing today’s news that a few of the leading Congressional Democrats may have been – probably were – briefed about the administration’s plans to torture (waterboard, and maybe more) suspected terrorists being held in secret CIA facilities abroad. There’s confusion about the facts, with few of the people allegedly briefed confirming the story. Notably, however, it appears that of those briefed, only Rep. Jane Harman objected. (Note that we're still at an early spin stage here — more facts about who said what to whom are likely to come out.)

The emerging consensus in the blogosphere seems to be that even if they had the presence of mind to object, the Representatives and Senators who were briefed were in a bind: as members of the Intelligence Committees or the leadership, they signed various secrecy pledges which stopped them from going public. To go public, it seems to be agreed, was to “jeopardize their careers and risk jail” as Kevin Drum put it; even so, Matthew Yglesias suggests that this called for civil disobedience, and that the representatives should have dared the administration to arrest them.

All this misses a critical aspect of our constitutional structure. Thanks to the Speech and Debate Clause there was a way for any Senator or Representative who wanted to blow the whistle to do so in a way that involved no risk of jail or fines – at worst they might have lost their security clearances (and even there the law is a little murky).

Article I, section 6 of the Constitution reads as follows,

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

The Speech and Debate clause has been interpreted to extend beyond floor speeches, e.g. to committee statements, but it unquestionably applies to floor statements. Thus, it would have been possible for Rep. Harman, or Senator Rockefeller, or the others allegedly briefed to go to the floor, either during the times when members may speak on topics of their choice, or under one of the extraordinary mechanism for privileged statements, and denounce the Bush administration’s determinate to torture helpless captives in secret offshore detention facilities.

I’m not saying this would be easy or politically painless. The political risks are obvious – and recall the Congress was being briefed not all that long after 9/11. But even without the national security angle or the political frenzy angle, there were also counterveilling issues of fundamental personal ethics As Rep. Harman noted,

“When you serve on intelligence committee you sign a second oath — one of secrecy,” she said. “I was briefed, but the information was closely held to just the Gang of Four. I was not free to disclose anything.”

Serious people take oaths like this seriously and are right to do so; but before they took that second oath, they took a first one upon taking office in which they promised to “preserve and defend the Constitution of the United States.” To the extent that the second oath allows the executive to muzzle members of Congress, it is unconstitutional under any theory, including not only the Speech and Debate clause, but also the Incompatibility Clause (which forbids members of congress from serving in the executive branch; a converse conclusion is that this clause forbids the executive branch from turning members of Congress into subordinates).

Although apparently too easily forgotten, the Speech and Debate Clause is, as Justice Harlan said in United States v. Johnson, 383 U.S. 169, 178 (1966),

the culmination of a long struggle for parliamentary supremacy. Behind these simple phrases lies a history of conflict between the Commons and the Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators. Since the Glorious Revolution in Britain, and throughout United States history, the privilege has been recognized as an important protection of the independence and integrity of the legislature.

The Supreme Court has limited the reach of the Speech and Debate Clause in some relevant respects. In Doe v. McMillan, 412 U.S. 306 (1973), the Court distinguished statements on the floor (or in committee) – which are and remain completely privileged – and their republication elsewhere. In that case a committee print of one of its reports, issued in a routine manner by the Public Printer, contained allegedly defamatory statements about private citizens. They sued for an injunction to prevent further publication, dissemination, and distribution of the report until the objectionable material was deleted, and sought damages. The Court held that the Members of Congress and their staffs could not be sued due to the Speech and Debate Clause, since their actions had all been part of the ordinary legislative process. But the Court also held the Superintendent of Documents and the Public Printer could be sued because they had no broader immunity than Members of Congress would have and their actions in publically disseminating the report outside Congress were not legislative acts, unlike voting, speaking on the floor or in committee, which are protected.

More troubling for third parties, however, is Gravel v. United States, 408 U.S. 606 (1972). Senator Gravel read key parts of the Pentagon Papers at a committee hearing, and then placed the full text of the 47 volumes of it into the public record. That act, the Supreme Court held, was privileged, an argument it called “incontrovertible.” But the Court refused to assume that once the material was in the public record it automatically followed that arrangements to republish them were inevitably legal, nor did at accept that Senator Gravel’s attempts to find a publisher (or his aide’s, which they took to be the same thing for these purposes), fell under the Speech and Debate Clause.

Combine this holding with the administration’s more recent and aggressive re-interpretations of the Espionage Act, which seek to extend it to reach the conduct of parties not holding clearances who share information that they acquire from someone who has one, and you begin to wonder whether newspapers that republished the floor speech might not face some legal attacks from the Justice Department. Although I personally think that the First Amendment must protect a newspaper that republishes a member of Congress’s statements on the floor, it is clear that the current administration has taken positions that would allow it to argue the contrary; more to the point, although I think the newspapers would win such a case, even the main Pentagon Papers case, much less the Gravel case noted above, don’t conclusively foreclose the government from arguing the contrary.

The question of security clearances is the murkiest part of the story. The Bush administration has consistently taken the extreme position that it never has any legal duty to tell Congress anything. It claims the power to ignore subpoenas. It says that the President is the only judge of what he has to do, and any attempt to compel him is unconstitutional. As early as 2001 the administration unilaterally revoked the security clearances of 91 Senators, arguing as GW Bush put it “it’s not in the nation’s interest” that they have access to information they could leak.

I believe that Congress could Constitutionally legislate to preserve the security clearances of members who disclose classified information on the floor. As far as I know (please correct me if I’m wrong), Congress has never passed such a rule, and in its absence, I think it is within the power of the executive to choose to deny clearances to whistle blowing members of Congress. That is a forward-looking loss of privilege rather than a legal disability of the sort that the Speech and Debate Clause protects against. But legally, that’s it. A member of Congress who learned of torture plans and chose to tell the nation about them would face no other legitimate legal risk; (there was, with the Gonzales gang, the not inconsiderable possibility of an improper prosecution, but many of the key events here were when Ashcroft was Attorney General) .

It would have taken great courage, and carried political risk, but our Constitution does provide a channel by which members of Congress can stand up and call the executive to account on its plans to torture someone in a secret CIA prison. At the end of the day it was that courage, not the legal avenue to expose wrongdoing, which was in too short supply in Congress.

(I’ve written the above in something of a hurry and think of it as a very preliminary attempt to explain the role of the Speech and Debate clause. I welcome correction and amplification from those who may know more than I; I would be particularly grateful for any insights regarding the granting and withholding of security clearances for members of Congress, a subject I am sure I have much to learn about.)

Kevin Drum on 'What the Tapes Would Have Shown'

Kevin Drum:

So here's what the tapes would have shown: not just that we had brutally tortured an al-Qaeda operative, but that we had brutally tortured an al-Qaeda operative who was (a) unimportant and low-ranking, (b) mentally unstable, (c) had no useful information, and (d) eventually spewed out an endless series of worthless, fantastical “confessions” under duress. This was all prompted by the president of the United States, implemented by the director of the CIA, and the end result was thousands of wasted man hours by intelligence and and law enforcement personnel.

Nice trifecta there. And just think: there's an entire political party in this country that still thinks this is OK.

CIA Torture Tape Destruction: the Search for a Scapegoat

Scott Horton, The Scapgoat at Harpers, spotted via Jim Henley, Maxwell Smart Acted Alone!. Lots and lots of good stuff — here's only a taste:

When the Bush Administration trots out arguments and finds that even Michelle Malkin (“it is bad) and Ed Morrissey (“frankly, the timing stinks”) have trouble swallowing them, it’s in serious trouble. And that was the case here. The claims that the policy was adopted for legitimate reasons didn’t pass a smell test; even “the base” wasn’t buying them.

All of which meant: time for a new strategy. So what works better that a good scapegoating?

But is the scapegoating strategy even marginally plausible? No, it isn’t. First, we have the opening volley—everything was disclosed and approved in advance. Even the oversight committees were briefed on this. Everything was kosher. So know we’re being told that they briefed Rockefeller and Harman, but not President Bush. Does anybody believe that for even a second? No, it’s not plausible. And all this relates to an issue that has involved the White House like no other issue since the Bush Administration began. The highly coercive interrogation program—the “Program”—was Dick Cheney’s baby. He lobbied the CIA to adopt it and turned to extraordinary measures to overcome their initial reluctance. (This is how we got the torture memoranda at Justice, after all). And let’s keep in mind that this is a White House in love with secrecy and the destruction of internal documents which might prove compromising. (Think: Dick Cheney and his visitors’ logs; think: Karl Rove’s missing emails, now put at 10,000,000 and counting).

And the very correct ending:

The CIA tape destruction presents another test for the Rule of Law in America. It’s a test for Congressional oversight, and it’s a test for the Department of Justice. Michael Mukasey will have to decide whether he considers himself to be the nation’s principal law enforcement officer, or a loyal retainer of George W. Bush. He’s only a few days on the job and the path has clearly divided.

What is the CIA Hiding?

The most likely and simplest explanation for why the CIA destroyed the tapes of its torture sessions with Abu Zubaydah and Abd al-Rahim al-Nashiri — even in the face of strong reasons not to — is that the tapes showed evidence of serious crimes. If you were a CIA person caught literally red-handed, would you rather be at risk of obstruction of justice charges, or of charges of torture, war crimes, or attempted murder or who knows what. That simple decision tree leads straight to burning the evidence.

But in the name of baseless speculation, I offer you the following more baroque hypothesis. The not infallible David Johnston tells us that,

… in April or May of 2002, officials briefed on the classified details of the case said, C.I.A. officials expressed dissatisfaction with the pace of the interviews and concluded that Mr. Zubaydah was revealing only a little of what he knew. C.I.A. interrogators, led by an outside consultant, ratcheted up the use of aggressive techniques.

Outside consultant? Where does the CIA go to get expert help torturing people? I doubt somehow that they went to Haliburton or even to Blackwater USA. They may have had an aging contra or El Salvadorian death squaddist on the payroll, but the real up-to-date expertise is probably in the Middle East.

So maybe part of what the CIA was hiding was that they got a Syrian, or a Saudi, or even an Israeli, to help them?

It's the Cover-Up That Gets You

C.I.A. Destroyed Tapes of Interrogations:

The Central Intelligence Agency in 2005 destroyed at least two videotapes documenting the interrogation of two Al Qaeda operatives in the agency's custody, a step it took in the midst of Congressional and legal scrutiny about the C.I.A's secret detention program, according to current and former government officials.

The videotapes showed agency operatives in 2002 subjecting terror suspects — including Abu Zubaydah, the first detainee in C.I.A. custody — to severe interrogation techniques. They were destroyed in part because officers were concerned that tapes documenting controversial interrogation methods could expose agency officials to greater risk of legal jeopardy, several officials said….

The recordings were not provided to a federal court hearing the case of the terror suspect Zacarias Moussaoui or to the Sept. 11 commission, which had made formal requests to the C.I.A. for transcripts and any other documentary evidence taken from interrogations of agency prisoners.

C.I.A. lawyers told federal prosecutors in 2003 and 2005, who relayed the information to a federal court in the Moussaoui case, that the C.I.A. did not possess recordings of interrogations sought by the judge in the case.

Update: Read this: Firedoglake, Absence of Torture Tape Librarian a Feature, Not a Bug

France Says Immunity is Forever

Contradicting a series of international law decisions by multiple national and international tribunals, and citing a missive from the French Foreign Ministry, a French court has ruled that ministerial immunity against torture charges persists past the minister's retirement.

Based on this dramatically deviant assertion by the French Foreign Ministry, the French court of first instance dismissed the torture charges filed against Donald Rumsfeld in France.

Details on what happened and how it deviates from international law as it is commonly understood at the Center for Constitutional Rights, France in Violation of Law Grants Donald Rumsfeld Immunity, Dismisses Torture Complaint.

Is this (pro-US) French President Nicolas Sarkozy's doing? It certainly seems an odd decision for Bernard Kouchner, the former socialist and co-founder of Doctors Without Borders (Médecins Sans Frontières) turned Foreign Minister.

It also seems like the sort of decision a decent court system would overturn on appeal.

DOJ as Augean Stables

American Civil Liberties Union : ACLU Learns of Third Secret Torture Memo by Gonzales Justice Department

Legal papers filed in federal court Monday in a lawsuit brought by the American Civil Liberties Union and other organizations disclose that the Office of Legal Counsel (OLC) for the Department of Justice issued three secret memos in May 2005 relating to the interrogation of detainees in CIA custody. Until now, the existence of only two of those memos had been reported and it was not known precisely when the memos had been written. The memos are believed to have authorized the CIA to use extremely harsh interrogation methods including waterboarding.

No light at the end of the tunnel.

Military Contractor to Face the Jury in Torture Claim

From the e-mail inbox:

November 6, 2007, New York, NY - In a key victory in the war against torture, today a federal court ruled that the lawsuit against a private military contractor in Iraq should be heard by a jury of Americans. The action was filed in 2004 against CACI and Titan, both of which were named in the military investigation of the Abu Ghraib scandal. The Center for Constitutional rights, Burke O'Neil LLC, and Akeel Valentine, PLC brought the suit as a class action on behalf of the hundreds of Iraqi torture victims. The same firms filed an action on October 11 against Blackwater USA for the killing of innocent bystanders at Noori Square in September.

The court today ruled that the case could go forward against CACI, whose employees worked as interrogators in the prison. The court found that that there was a dual chain of command where corporate employees were obliged to report abuse up the chain of command at CACI. The court dismissed the claims against Titan, whose employees worked as translators, reasoning that the military exercised exclusive control over the translators.

Susan L. Burke, of Burke O'Neil LLC, stated, “We are delighted that a jury of Americans will soon be deciding whether an American corporation is free to torture prisoners.”

Michael Ratner, President of the Center for Constitutional Rights, stated, “This will send a message to all contractors that they cannot act with impunity outside the law and begins to answer the question of how CACI will be held accountable for the atrocities at Abu Ghraib.”

Shereef Akeel of Akeel & Valentine, PLC said, “This is a real victory for the men we represent. Now they have the chance to seek justice before the American people.”

The denial of summary judgment in the case means there will be a jury trial of a private military contractor for torture. A status conference is scheduled for December 6, and a trial date will be set then. Attorneys for plaintiffs are asking for it to be held as promptly as possible.

US Government Contintues to Fail the Waterboarding Test

State Department lawyer John Bellinger, heretofore not known as an Addington-rabid member of the State Department (he was cut out of the key torture debates), refuses to say that the US would always condemn a foreign power that waterboarded a US citizen. Apparently whatever vague desire our government may have in protecting us against foreign torturers must give way to our government's desire to do some torturing.

Meanwhile, three-star Army General Russel Honore responds to questions about waterboarding by saying that “we've got an obligation to do what the hell we've got to do to make sure we get the mission done.”

Yup, now that we got past that little AG confirmation thing, they're all for it.

What's next, retroactive immunity bills?

No Surprises Here

Well, this is no surprise: Specter to vote for Mukasey as US attorney general. There were two ways this could play out: Specter would be a key vote and cave to White House pressure, or — what actually happened — the Democrats would cave and Specter would take the expedient route.

I suppose the only tiny silver lining in this whole sordid mess is that the GOP is so much in the tank for torture, that they haven't figured out that they are missing an opportunity: now that the Democratic party is so compromised on the torture question, it's actually open to Republicans to reformulate themselves as the anti-torture party. McCain could do it. Huckabee could do it. Even Romney could probably pull it off. (Rudy might find it tough.)

CIA Admits Waterboarding

CIA Admits Waterboarding. Their defense? They “only” did it to three people.

Meanwhile, we learn from ABC News that Gonzales forced out a top aide who, having undergone waterboarding to see what it was like, decided it was indeed torture and should be banned.

Schumer and Feinstein Sell Out Legislative Prerogatives and Surrender in the Fight Against Torture

Senators Schumer and Feinstein have demonstrated that they have no regard for democratic principles — and none for Democratic principles either — by announcing that they plan to vote for AG nominee Mukasey. Not the first betrayal from Feinstein, but a new low for Schumer.

• The Enablers Of Evil
• The Royals Love a Good Torture
• Schumer and Feinstein Say Yes To Waterboarding
• Schumer, Feinstein to Support Mukasey: David Addington Smiles (The Washington Note has it right here: “Why did Dems take control of the Senate anyway?”)
• The unique weirdness of the AG nomination
• Breaking: Feinstein & Schumer Cave - Will Vote For Mukasey For AG

Term limits are looking better every day.

Mukasey Waterboarding Reax

I don't need concrete facts to know whether beheading prisoners is legal. And Mr. Mukasey only needs non-hypotheticals to know if waterboarding is illegal if there exists some set of facts in which he imagines that it might be acceptable for the United States government to waterboard a prisoner.

• Mukasey Still Does Not Know If Waterboarding Is Torture
• No on Mukasey
• Mukasey plays dumb
• The Pit and the Pendulum and Bush's Nominee
• Mukasey Unsure About Legality of Waterboarding
• Showing Mukasey and You What Waterboarding Is

And the winner for dullest, most-in-the-tank headline….The Washington Post: Attorney General Nominee Sends Letter to Dems.

Update: Honorable mention to the New York Times which, having started with this headline: Mukasey Unsure About Legality of Waterboarding, somehow changed it to Mukasey Says Harsh Interrogation ‘Repugnant’.

Mukasey

Attorney general nominee Michael B. Mukasey today wrote a second, and much less artful, letter to the Senate Judiciary committee in response to its question about whether waterboarding is a permissible interrogation technique.

The man not only failed to answer the question, he wasn't able to bring himself to say the W-word: “waterboarding”.[*]

Here's the bottom line: “certain coercive interrogation techniques” may or may not be legal, but our poor ethically challenged AG-to-be can't say for sure in the context of a hypothetical question. Only a specific case would allow a judgment. And just because Mukasey finds them repugnant isn't enough to say these “coercive interrogation techniques” are illegal.

Part of the subtext is that were the Justice Dept to actually decide that waterboarding were illegal it would have to decide whether to prosecute the waterboarders on the federal payroll (especially at the CIA). And it doesn't want to do that, especially since this administration told them to go ahead. Indeed the people — Gonzales? Rumsfeld? Cheney? — who gave the orders might be the ones who become possible targets for prosecutors.

But ultimately, it's a basic decency issue. It may be that publicly admitting to basic decency is a disqualifying action for law enforcement officials in this administration, but if so, then the Senate shouldn't confirm anyone to the job. A vote for someone who will not disclaim waterboarding under any circumstances is a vote for someone who isn't fit to hold office under the Constitution of the United States.

In a positive development, Senator Clinton announced that she'll vote against Mukasey. However, none of the candidates have yet said they'll filibuster Mukasey's nomination.

Sadly, the candidates remain trapped in reactive politics. As far as I know, not one of the major candidates — not even Sen. Dodd — have ever touched the much more important issue of whether, if elected, they would prosecute any people in the current administration who are found to have ordered torture and who are found to have carried it out.

Torture Charges Filed Against Rumsfeld in France

I would have thought he'd know better than to travel to Europe, where they still have some standards: Donald Rumsfeld Charged With Torture During Trip To France

October 26, 2007, Paris, France - Today, the International Federation for Human Rights (FIDH) along with the Center for Constitutional Rights (CCR), the European Center for Constitutional and Human Rights (ECCHR), and the French League for Human Rights filed a complaint with the Paris Prosecutor before the "Court of First Instance" (Tribunal de Grande Instance) charging former Secretary of Defense Donald Rumsfeld with ordering and authorizing torture. Rumsfeld was in Paris for a talk sponsored by Foreign Policy magazine, and left through a door connecting to the U.S. embassy to avoid journalists and human rights attorneys outside.

"The filing of this French case against Rumsfeld demonstrates that we will not rest until those U.S. officials involved in the torture program are brought to justice. Rumsfeld must understand that he has no place to hide. A torturer is an enemy of all humankind," said CCR President Michael Ratner.

France is under the obligation to investigate and prosecute Rumsfeld's accountability for crimes of torture in Guantanamo and Iraq. France has no choice but to open an investigation if an alleged torturer is on its territory. I hope that the fight against impunity will not be sacrificed in the name of politics. We call on France to refuse to be a safe haven for criminals." said FIDH President Souhayr Belhassen.

We want to combat impunity and therefore demand a judicial investigation and a criminal prosecution wherever there is jurisdiction over the torture incidents," said ECCHR General Secretary Wolfgang Kaleck.

The criminal complaint states that because of the failure of authorities in the United States and Iraq to launch any independent investigation into the responsibility of Rumsfeld and other high-level U.S. officials for torture despite a documented paper trail and government memos implicating them in direct as well as command responsibility for torture -- and because the U.S. has refused to join the International Criminal Court -- it is the legal obligation of states such as France to take up the case.

In this case, charges are brought under the 1984 Convention against Torture, ratified by both the United States and France, which has been used in France in previous torture cases.

French courts therefore have an obligation under the Convention against Torture to prosecute individuals responsible for acts of torture if they are present on French territory. This will be the only case filed while he is in the country, which makes the obligations to investigate and prosecute under international law extremely strong.

Rumsfeld's presence on French territory gives French courts jurisdiction to prosecute him for having ordered and authorized torture and cruel, inhuman and degrading treatment of detainees in Guantanamo, Abu Ghraib and elsewhere.

In addition, having resigned from his position of U.S. Secretary of Defense a year ago, Rumsfeld can no longer try to claim immunity as a head of state or government official. Nor can he claim immunity as former state official, as international law does not recognize such immunity in the case of international crimes including the crime of torture.

Former U.S. Army Brigadier General Janis Karpinski, former commander of Abu Ghraib and other U.S.-run prisons in Iraq, submitted written testimony to the Paris Prosecutor for the plaintiffs' case on Rumsfeld’s responsibility for the abuse of detainees.

This is the fifth time Rumsfeld has been charged with direct involvement in torture stemming from his role in the Bush administration’s program of torture post-9/11.

Two previous criminal complaints were filed in Germany under its universal jurisdiction statute, which allows Germany to prosecute serious international crimes regardless of where they occurred or the nationality of the perpetrators or victims. One case was filed in fall 2004 by CCR, FIDH, and Berlin attorney Wolfgang Kaleck; that case was dismissed in February 2005 in response to official pressure from the U.S., in particular from the Pentagon.

The second case was filed in fall 2006 by the same groups as well as dozens of national and international human rights groups, Nobel Peace Prize winners and the United Nations former Special Rapporteur on Torture. The 2006 complaint was presented on behalf of 12 Iraqi citizens who had been held and abused in Abu Ghraib prison in Iraq and one Saudi citizen still held at Guantánamo. This case was dismissed in April 2007, and an appeal will be filed against this decision next week.

Two other cases were filed against Rumsfeld in Argentina in 2005 and in Sweden in 2007.

Full text of complaint (.pdf, in French).

Debasement of Discourse

Must not let this go without notice.

Via Crooks and Liars, Peronist Rudy Giuliani exposes his moral relativism about torture: it's ok when we do it.

At a town-hall meeting in Iowa last night, Rudy Giuliani did his best impression of a crazy person.

After noting that Giuliani ally Michael Mukasey, the Attorney General nominee, “fudged” his answer on waterboarding, a local woman asked if a presudebt can order waterboarding, even though it’s torture.

Mr. Giuliani responded: “Okay. First of all, I don’t believe the attorney general designate in any way was unclear on torture. I think Democrats said that; I don’t think he was.”

Ms. Gustitus said: “He said he didn’t know if waterboarding is torture.”

Mr. Giuliani said: “Well, I’m not sure it is either. I’m not sure it is either. It depends on how it’s done. It depends on the circumstances. It depends on who does it.

I don't know if he's crazy, but he's certainly dangerous: Rudy ♥ Torture.

Previous related post: Giuliani's irrational hatred of ferrets.

The Senate Flirts With Irrelevance (or Worse)

Since they are aggressively not talking about the war, the two most important domestic policy issues before Congress at present are the FISA re-authorization and the nomination of Michael B. Mukasey, a man who is an intelligent prevaricator about torture and a straight-forward authoritarian about Presidential power to be our next Attorney General.

The Senate's capitulation on FISA includes retrospective amnesty, without even a need for truth and reconciliation, for all the telecom companies that violated the law, knowingly, and allowed illegal eavesdropping of telecoms traffic just because someone in government asked them to do so. There is now some evidence, arising from the Nacchio fraud trial, that the illegal spying program started well before 9/11 — the smoking gun that this amnesty plan may be designed to hide.

The whole idea of these companies going along with oral requests that they had to know were illegal is positively Soviet. So too are the all-too-credible allegations that when Qwest failed to play ball with these illegal requests, it got punished by being denied government contract work for which it was best qualified.

That the Senate would agree to an amnesty with no disclosure in these conditions is one of the best arguments for term limits that I have ever heard.

Senator Chris Dodd, emerging as the conscience of the Presidential field, has placed a hold on the FISA bill. I hope his colleagues are grateful to him for saving them from their own folly.

Even so, no hold seems likely for the Mukasey nomination, further cementing the irrelevance of the Senate and its quiet complicity in torture and other outrages. Yes, there's a tradition of allowing most nominees to go through, but torture ought to be exceptional. And if that won't do it, why on earth is the Senate going to confirm a man who testifies that he believes the President can violate statutes on national security grounds more or less whenever he wants to?

Asked, for instance, if the president was free to violate a law enacted by Congress, Mr. Mukasey said, “That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country.”

…

Mr. Mukasey also said that Congress might be powerless to bar the president from conducting some surveillance without warrants.

“The statute, regardless of its clarity, can’t change the Constitution,” Mr. Mukasey said. “That’s been true since the Prize cases.”

But the Prize cases concerned whether President Lincoln had the power to impose a blockade of Confederate ports without Congressional authorization — not in the face of a Congressional ban. (Indeed, Congress later retroactively authorized Lincoln’s actions.)

The distinction between Congressional silence, as in the Prize cases, and Congressional limitation, as in the 1978 law that required warrants for some intelligence surveillance, is an important one.

…

“So you are telling the committee, Judge, that anytime the president is acting to safeguard the national security against a terrorist threat, he does not have to comply with statute?” asked Senator Russ Feingold, Democrat of Wisconsin, referring to the 1978 law.

Mr. Mukasey did not answer directly…

I think this means that confirmation would be a grave error — even if failure to confirm keeps Peter Keisler, the perhaps equally absolutist temporary AG, in office for a long time. (I happen to have known Keisler reasonably well a long time ago, back in college and law school. He always seemed a deeply decent person on a human level. He was also one of the most right-wing people I knew and his political viewpoints were extreme even then. But then he might well say the same about me for all I know.)

As for the Senators, if they don't care about the Constitution, is there at least no jealousy left for the legislative prerogative? Primaries for them all, I say.

A Whale of a Quote

Roger Alford shares with us his list of the “Quotable Quotes from the Fordham Law Review Symposium on International Law and The Constitution: Terms of Engagement.”

There are several good ones, but this one from Yale Law Dean Harold Koh stands out:

I recently was talking with a Senator who said to me, “Professor, we didn’t ask the terrorists to sign the Geneva Conventions. How can you expect us to abide by commitments that they don’t adhere to?” To which I replied, “Yes, and we didn’t ask the whales to sign the Whaling Convention either. We sign these treaties to protect us from ourselves, not from them.”

Surrealism in Everyday Life

If I wrote something like this, not that I would, it would probably be parody or something.

I've known Brad a long time, although I don't get to see him as often as I'd like these days. He can be very funny, but he has a different sort of humor, so when he writes something like this…

King Lear Blogging:

King Lear at the California Shakespeare Theater. Very well done.

There are, of course, the Berkeley moments: the announcement beforehand that there is a silver Prius in the parking lot with its interior lights on, and four men (including me) get up to check…

Were I Berkeley law professor John Yoo, I would never agree to take part in the production and come on stage to waterboard and then blind the Earl of g And I would never agree to make Gloucester confess not just to conspiring with Cordelia and the French but also to being the twentieth highjacker…

…I'm forced to believe it might actually have happened.

Fight Outrage Fatigue!

Bush’s Justice Department secretly endorsed torture

Justice Department secretly endorsed torture

NYT tamer headline on the facts: Secret U.S. Endorsement of Severe Interrogations

Charnel House

Secret US Endorsement of Severe Interrogations

The Torture Administration

How the Justice Department Made the World Safe for CIA Torture

And more:

DOJ's Secret Interrogation Opinions

Torture

A New Threshhold for AG Nominee Mukasey

Secret Gonzalez-supported Torture Efforts Revealed

Defusing the 'Ticking Time Bomb' Scenario

There's no question that the pro-torture folks love to trot out the unrealistic 'Ticking Time Bomb' Scenario in order to justify the use of torture. (It even seems to find its way regularly into Presidential debates.) And then it's onwards down the slippery slope. So it's good to see some serious thought being put into defusing this politically — if not necessarily intellectually — effective argument.

Here's what the Association for the Prevention of Torture has to say about its new report, Defusing the Ticking Time Bomb Scenario:

Defusing the Ticking Bomb Scenario

In June 2007, as part of a series of activities to mark its 30th anniversary, the APT convened a meeting of experts to discuss responses to the ticking bomb scenario. In popular films and television series, on talk shows and news, in academic journals and political debates, the possible use of torture to prevent a terrorist attack in a hypothetical 'ticking bomb scenario' is a hot topic. The dramatic nature of the scenario, and the artificially simple moral answers it seems to offer, have helped it make a significant impression on public audiences. Yet this scenario ultimately seeks to destroy the hard-won absolute prohibition of torture under international and national laws. In presenting certain acts of torture as justifiable, even desirable, in distorting reality and manipulating emotions and ethical reasoning, in leading well-intentioned societies down a slippery slope to legalised and systematic torture, the ticking bomb scenario represents a grave threat to global anti-torture efforts.

Based on discussions at and following the June 2007 meeting, the APT has prepared Defusing the Ticking Bomb Scenario: Why we must say No to torture, always. This brochure provides the general public, human rights advocates, academics and governments with essential arguments against any proposed 'ticking bomb' exception to the prohibition of torture. It exposes the misleading and flawed hidden assumptions of the scenario, and emphasises the toxic effect of torture, like slavery and genocide, on societies that tolerate it. It recalls the fundamental and absolute nature of the prohibition under international law, and describes how the scenario manipulates moral and ethical judgment by obscuring the true moral cost of tolerating any act of torture.

Press as Poodle

The title of the blog post is overwrought, The Next Hurrah: CBS Collaborates in Torture, but with cause.

According to Dan Rather's lawsuit against CBS, it didn't torture anyone — but CBS let the US government talk it into first squeltching and then toning down the story of the torture at Abu Ghraib.

Shameful if true. (And, while nothing is impossible, it's hard to see what Rather could possibly gain from making this up.) So much for the heirs of Murrow and Cronkite.

Bonus poodle example. And my apology to real poodles and their fans.

Torture

Upsetting — extremely well done — article by Jane Mayer for the New Yorker, on the CIA's 'Black Sites'.

Short version, and some reactions, in Report: Harsh Methods Used On 9/11 Suspect from the Washington Post. (Note the Officially Approved Euphemism here: “harsh methods” indeed.)

War crimes, I tell you.

War Crimes

Seymour M. Hersh interviews Army Major General Antonio M. Taguba (forcibly Ret.), and gets a preview of his testimony at the c. 2010 war crimes trials:

“There was no doubt in my mind that this stuff”—the explicit images—“was gravitating upward. It was standard operating procedure to assume that this had to go higher. The President had to be aware of this.” He said that Rumsfeld, his senior aides, and the high-ranking generals and admirals who stood with him as he misrepresented what he knew about Abu Ghraib had failed the nation.

“From the moment a soldier enlists, we inculcate loyalty, duty, honor, integrity, and selfless service,” Taguba said. “And yet when we get to the senior-officer level we forget those values. I know that my peers in the Army will be mad at me for speaking out, but the fact is that we violated the laws of land warfare in Abu Ghraib. We violated the tenets of the Geneva Convention. We violated our own principles and we violated the core of our military values. The stress of combat is not an excuse, and I believe, even today, that those civilian and military leaders responsible should be held accountable.”

Torture Harms the Torturer Too

The Tortured Lives of Interrogators - washingtonpost.com

“I tortured people,” said Lagouranis, 37, who was a military intelligence specialist in Iraq from January 2004 until January 2005. “You have to twist your mind up so much to justify doing that.”

Being an interrogator, Lagouranis discovered, can be torture.

I think the most compelling arguments against torture are its fundamental immorality, what it does to this country;s moral standing, what it does to this country's legal standing, and that it doesn't work real well, in that order. But I'm willing to add what it does to the torturers to the end of the list.

They could, after all refuse, costly as it would be to them personally. And, indeed, some do:

Lagouranis's tools included stress positions, a staged execution and hypothermia so extreme the detainees' lips turned purple. He has written an account of his experiences in a book, “Fear Up Harsh,” which has been read by the Pentagon and will be published this week. Stephen Lewis, an interrogator who was deployed with Lagouranis, confirmed the account, and Staff Sgt. Shawn Campbell, who was Lagouranis's team leader and direct supervisor, said Lagouranis's assertions were “as true as true can get. It's all verifiable.” John Sifton, a senior researcher for Human Rights Watch, said the group investigated many of Lagouranis's claims about abuses and independently corroborated them.

“At every point, there was part of me resisting, part of me enjoying,” Lagouranis said. “Using dogs on someone, there was a tingling throughout my body. If you saw the reaction in the prisoner, it's thrilling.”

In Mosul, he took detainees outside the prison gate to a metal shipping container they called “the disco,” with blaring music and lights. Before and after questioning, military police officers stripped them and checked for injuries, noting cuts and bumps “like a car inspection at a parking garage.” Once a week, an Iraqi councilman and an American colonel visited. “We had to hide the tortured guys,” Lagouranis said.

Then a soldier's aunt sent over several copies of Viktor E. Frankel's Holocaust memoir, “Man's Search for Meaning.” Lagouranis found himself trying to pick up tips from the Nazis. He realized he had gone too far.

At that point, Lagouranis said, he moderated his techniques and submitted sworn statements to supervisors concerning prisoner abuse.

The Post's article has lots more, not all of it unambiguous, and is worth reading in full.

Senator Bill Nelson Votes for Torture

Senator Bill Nelson Votes for Torture.

Or, as the NYT put it,

The Senate Intelligence Committee on Thursday questioned the continuing value of the Central Intelligence Agency’s secret interrogation program for terrorism suspects, suggesting that international condemnation and the obstacles it has created to criminal prosecution may outweigh its worth in gathering information.

The committee rejected by one vote a Democratic proposal that would essentially have cut money for the program by banning harsh interrogation techniques except in dire emergencies, a committee report revealed.

And that one vote was Florida's own Bill Nelson.

In a closed session on May 23, two Democrats, Senators Sheldon Whitehouse of Rhode Island and Dianne Feinstein of California, proposed barring spending on interrogation techniques that go beyond the Army Field Manual, which bans physical pressure or pain. Under their proposal, the only exception would have been when the president determined “that an individual has information about a specific and imminent threat.”.

The amendment failed when Senator Bill Nelson, Democrat of Florida, joined all the Republicans in voting no.

All Floridians should be ashamed of Sen. Bill Nelson, who provided the deciding vote to prevent the Senate from taking a stand against torture.

He has sunk to the level of Sen. Martinez, which is pretty low indeed.

There is no excuse for this sort of vote. None.

A General Takes a Strong Stand on Torture

Gen. David H. Petraeus, the US military commander/viceroy in Iraq may be “overrated”, but he's done at least one thing right: taking a strong stand against torture.

CIA Draws a Line

It's good to know, I guess, that there are some things so horrible that the CIA will deny that it did them.

Father of Pakistani Alleges U.S. Torture It also alleged that the building held two children, ages about 6 and 8, of Mohammed, who had been captured in Pakistan within days of Khan.

“They were also mentally tortured by having ants or other creatures put on their legs to scare them and get them to say where their father was hiding,” the statement charged.

Gimigliano, the CIA spokesman, said the agency “forcefully and completely rejects as false any suggestion that its officers would in any way mistreat children, including children of al-Qaida terrorists.”

Just two more small details:

1. In light of everything else we know, how reliable is the CIA's denial?

2. What about the adults?

Privatized Abuse -- and Institutionalized Irresponsibility

This sounds like a big deal:

The Project On Government Oversight (POGO) Blog: Contractual Error

The Washington Post reports that private contractors have played a role in alleged detainee abuses at Guantanamo, sometimes even directing Army personnel to perform such abuse. This information was obtained from a 2004 survey of FBI agents who visited the detention facilities and is the latest addition in a long series of reports on contractor misconduct.

If the allegations are true, the Dept. of Defense would be in violation of Subpart 7.503©(3) and (7) of the Federal Acquisition Regulations, which states that direction of federal employees and military forces is an “inherently governmental function” not to be performed by contractors.

These episodes of misconduct shed light on fundamental questions about the proper role of private contractors in service to the federal government.

…

Peter Singer highlights this debate for DefenseTech and argues that a new provision of the FY 2007 defense budget could force security contractors in Iraq and Afghanistan to comply with the Uniform Code of Military Justice. However, security contractors outside of conflict areas, such as those at Guantanamo, would still remain outside the bounds of legal obligation.

There's more, and it's worth reading.

On the Severabilty of the Habeas Corpus Provisions of the Military Commissions Act

Specter is hoping the courts will restore the rights of the detainees to bring habeas cases. “The bill was severable. It has a severability clause. And I think the courts will invalidate it,” he told me. “They’re not going to give up authority to decide habeas-corpus cases, not a chance.”

To the Editor:

In Jeffrey Toobin's marvelous profile of Senator Arlen Specter (“Killing Habeas Corpus,” Dec. 4), the Senator reveals that he labors under a fascinating misapprehension regarding potential judicial review of the Military Commissions Act of 2006. Senator Specter states that the Act contains a severability clause, and that, therefore, excision of the controversial (and, in our view, unconstitutional) habeas provision would have no implications for the continuing force of the rest of the Act.

In fact, as anyone who reads the Act will quickly discover, the statute as signed by the President contains no such provision. As a result, if the Supreme Court were to strike down any part of the statute, it would have to consider whether the rest of the Act can survive the loss. As the habeas-stripping clause was the subject of its own vote in the Senate, and the legislative history shows that the severability clause was removed during the consideration of the bill, it would be very difficult for the Court to find legislative intent supporting severability.

We draw some comfort from this observation, although not from the apparent failure of one of the bill's coauthors to understand what he was voting for.

A. Michael Froomkin, Professor
Stephen I. Vladeck, Associate Professor

Toobin's profile reveals that Specter labors under a misapprehension regarding potential judicial review of the Military Commissions Act of 2006. Specter states that the Act contains a severability clause, and that, therefore, excision of the controversial habeas provision would have no implications for the rest of the Act. In fact, the statute contains no such provision, and, if the Supreme Court were to strike down any part of the statute, it would have to consider whether the rest of the Act can survive the loss. Since legislative history shows that the severability clause was removed during the consideration of the bill, it would be very difficult for the Court to find legislative intent supporting it.

A. Michael Froomkin, Professor
Stephen I. Vladeck, Associate Professor
University of Miami School of Law
Coral Gables, Florida

Of course, both Steve and I have complete faith that the Supreme Court could, if it wanted, find some excuse to sever the habeas provisions of the MCA from the rest of the bill — all they'd have to do is change current severability doctrine to fit. Whether it could be done in a principled way, on the other hand…

Evidence Mounts that US Used Psychological (and Physical?) Torture Against Padilla

The evidence begins to mount that the US used at least psychological torture against Jose Padilla while holding him in the Navy brig for almost three years.

Padilla's allegations that he was kept in total sensory deprivation begin to seem more credible. Padilla's lawyers allege that he was kept alone in a locked room and fed through a slot to minimize human contact.

Wordlessly, the guards, pushing into the cell, chained Mr. Padilla’s cuffed hands to a metal belt. Briefly, his expressionless eyes met the camera before he lowered his head submissively in expectation of what came next: noise-blocking headphones over his ears and blacked-out goggles over his eyes. Then the guards, whose faces were hidden behind plastic visors, marched their masked, clanking prisoner down the hall to his root canal.

I hope it is not going to be debated that if it is proved that the government did hold Padilla in sensory deprivation conditions for months, much less years, this is not only cruel and unusual, but actual government misconduct.

Dr. Angela Hegarty, director of forensic psychiatry at the Creedmoor Psychiatric Center in Queens, N.Y., who examined Mr. Padilla for a total of 22 hours in June and September, said in an affidavit filed Friday that he “lacks the capacity to assist in his own defense.”

“It is my opinion that as the result of his experiences during his detention and interrogation, Mr. Padilla does not appreciate the nature and consequences of the proceedings against him, is unable to render assistance to counsel, and has impairments in reasoning as the result of a mental illness, i.e., post-traumatic stress disorder, complicated by the neuropsychiatric effects of prolonged isolation,” Dr. Hegarty said in an affidavit for the defense.

…

Dr. Hegarty said Mr. Padilla refuses to review the video recordings of his interrogations, which have been released to his lawyers but remain classified.

He is especially reluctant to discuss what happened in the brig, fearful that he will be returned there some day, Mr. Patel said in his affidavit.

“During questioning, he often exhibits facial tics, unusual eye movements and contortions of his body,” Mr. Patel said. “The contortions are particularly poignant since he is usually manacled and bound by a belly chain when he has meetings with counsel.”

Recall that Padilla is a US citizen, arrested in the USA, and at the relevant times had been charged with no crime.

Karpinski Alleges Rumsfeld Personally Ordered Abusive Interrogations

Former General Karpinsky (demoted to Colonel) has an axe to grind: she was made into the scapegoat for Abu Ghraib. Circumstantial evidence is pretty strong that higher-ups who reported directly to Rumsfeld, notably Gen. Miller, were at least as much to blame, but they escaped all responsibility.

How reliable a witness is Karpinsky? Hard to say -- but reliable enough to deserve a hearing. Or two: one in the House and one in the Senate, say.

Rumsfeld okayed abuses says former U.S. general: MADRID (Reuters) - Outgoing Defense Secretary Donald Rumsfeld authorized the mistreatment of detainees at Abu Ghraib prison in Iraq, the prison's former U.S. commander said in an interview on Saturday.

Former U.S. Army Brigadier General Janis Karpinski told Spain's El Pais newspaper she had seen a letter apparently signed by Rumsfeld which allowed civilian contractors to use techniques such as sleep deprivation during interrogation.

Karpinski, who ran the prison until early 2004, said she saw a memorandum signed by Rumsfeld detailing the use of harsh interrogation methods.

"The handwritten signature was above his printed name and in the same handwriting in the margin was written: "Make sure this is accomplished"," she told Saturday's El Pais.

And, of course, Rumsfeld had better not plan any European travel any time soon.

Sen. Dodd Wants to Roll Back Aspects of the Torture Bill

Washington- Senator Chris Dodd (D-CT), an outspoken opponent of the Military Commission Act of 2006, today introduced legislation which would amend existing law in order to have an effective process for bringing terrorists to justice. This is currently not the case under the Military Commission Act, which will be the subject of endless legal challenges.  As important, the bill would also seek to ensure that U.S. servicemen and women are afforded the maximum protection of a strong international legal framework guaranteed by respect for such provisions as the Geneva Conventions and other international standards, and to restore America’s moral authority as the leader in the world in advancing the rule of law. 

“I take a backseat to no one when it comes to protecting this country from terrorists,” Sen. Dodd said. “But there is a right way to do this and a wrong way to do this. It’s clear the people who perpetrated these horrendous crimes against our country and our people have no moral compass and deserve to be prosecuted to the full extent of the law. But in taking away their legal rights, the rights first codified in our country’s Constitution, we’re taking away our own moral compass, as well.”

The Effective Terrorists Prosecution Act:

• Restores Habeas Corpus protections to detainees
  
• Narrows the definition of unlawful enemy combatant to individuals who directly participate in hostilities against the United States who are not lawful combatants
  
• Bars information gained through coercion from being introduced as evidence in trials
  
• Empowers military judges to exclude hearsay evidence they deem to be unreliable
  
• Authorizes the US Court of Appeals for the Armed Forces to review decisions by the Military commissions
  
• Limits the authority of the President to interpret the meaning and application of the Geneva Conventions and makes that authority subject to congressional and judicial oversight
  
• Provides for expedited judicial review of the Military Commissions Act of 2006 to determine the constitutionally of its provisions
  

“We in Congress have our own obligation, to work in a bipartisan way to repair the damage that has been done, to protect our international reputation, to preserve our domestic traditions, and to provide a successful mechanism to improve and enhance the tools required by the global war on terror,” Dodd said.

US Government Brief Denies Padilla Was Tortured

Thanks again to David Markus here's a copy of the Government's Opposition To Defendant Padilla's Motion To Dismiss For "Outrageous Government Conduct".

Short version: We deny everything. And even if it's all true the remedy is to sue us, not dismiss this case.

Pithy quote:

The government in the strongest terms denies Padilla's allegations of torture -- allegations made without support and without citing a shred of record evidence. For present purposes, however, what matters is that the law plainly does not permit the remedy he seeks: dismissal of the indictment. No further inquiry is required.

Disengenous argument warning:

Padilla's allegations of torture have no merit whatsoever, but the more basic and insurmountable problem with his motion is a purely legal one. Padilla has not cited a single precedent "absolutely bar[ring]" a federal criminal prosecution because of alleged due process violations committed during a prior military detention. By contrast, courts have firmly and consistently held that an indictment may not be dismissed due to supposed "outrageous government conduct" arising out of the defendant’s treatment while detained. The defendant’s remedy, if any, lies in the civil process or prosecution of the offenders; he is not entitled to a free pass from his own criminal conduct. Moreover, even in the wholly distinct line of cases involving allegedly outrageous prosecutorial misconduct, a defendant still must show that the misconduct substantially prejudiced his defense, and produce up front evidence to support his claims. Padilla has not made such a showing, and his motion should be denied as a matter of law.

That said, the government has meatier arguments based on 11th Circuit precedent...but I'm not sure on a quick reading that they utterly tie the judge's hands.

Prediction: At least some kind of hearing.

The big issue: Will there be discovery? How much?

(Links to text of Padilla's motion, to which this is a response, here.)

Repeal the Torture Bill

This is good.

Dodd regrets not filibustering:

Connecticut Senator Chris Dodd says he regrets being talked out of filibustering tough new tribunal legislation signed by President Bush today . The Democrat says he plans to seek new legislation to overturn portions of the bill. Dodd denounced the measure, which civil liberty groups have said endangers many freedoms.

The bill sets up military tribunals to try terror suspects and allows the introduction of evidence obtained through tough interrogation procedures. Dodd says the measure would do little to aid in the hunt for terrorists because information obtained through intimidation is rarely accurate. Dodd says he initially intended to filibuster the bill, but was talked out of it by other Democrats who said there wouldn't be enough votes to support the filibuster. The senator is campaigning in Iowa as he considers a bid for the Democratic presidential nomination.

The part about Dodd running for President? Less good. But the part about starting a move to repeal the torture bill after the election -- that is a great idea. Pity it's only "portions" though. What does Dodd want to keep?

Of course, even with a perfect (and unlikely) result in the election, there's not much of a prayer of passing such a bill over a veto, but it's still worth doing to keep the issue alive.

No Shame

Cheney ♥ Waterboarding: "It's a no-brainer for me," Cheney said at one point in an interview.

Note that in WW II the US stated that waterboarding was a war crime-- when practiced on US troops by the Japanese.

Giving Voice to the Silenced Majority

President Bush signed the disgraceful Torture Bill yesterday.

The campaign to repeal the Bush Torture Bill, aka the Military Commissions Act of 2006, begins today. (So does the legal battle.)

There are lots of theories about how we ended up in this sad position. Here's mine: the problem with the opposition to torture, just like the opposition to the war, is that it isn't visible enough.

I was a kid in Washington DC during the Vietnam War.

One thing I remember vividly about those times was how visible -- in your face -- the opposition to the war was. I don't mean just the demonstrations, although those were important. I mean the small things, in a day-to-day way. People wore anti-war buttons. They put peace signs on their cars. They wore black armbands. The war was an issue in the home, in the school, in the community, on TV.

Today, in big media, Keith Olbermann stands almost alone; radio and to a lesser but real extent TV and even print avoid the major issues of the day in favor of fluff and missing white women. And the coverage you get is deeply inadequate: even after the fact the New York Times, for example, treated the resolution of the faux McCain-Bush division on the Torture bill as if the administration had conceded something significant while in fact the final bill that emerged from the Senate reflected the original administration wish list in almost every way that mattered. If you rely on the big news media for your information, you would not believe in a visceral way that the opposition to the war, to Bush, or to torture, is anything near as big as polls suggest it is.

And that means that people don't speak out as much as they might because they don't appreciate how many of the people around them are receptive. I'm not talking about activists -- I'm talking about ordinary voters and non-voters. They are the new silenced majority.

We cannot repeal this bill without Democratic majorities in both houses, and a President (probably, but not necessarily a Democrat) open to repeal. That means, among other things, someone who didn't vote for it.

But, as too many of the Democrats in the Senate have proved by voting for this bill, they (along with John McCain) cannot be relied on to do the right thing without outside pressure. And that pressure requires, more than anything, that the opposition to this attack on the fundamentals of decency and democracy be visible in a daily and constant way.

To make that happen requires a symbol. It has to be something visible. It has to be something simple that you can make at home -- it shouldn't depend on finding a supplier or waiting for an order to turn up.

The perfect symbol should be

• unique
• easy to make
• hard for principals to throw students out of school for wearing

I propose an armband. Not a plastic wristband -- a real armband that you wear on your upper arm, over a shirt or jacket. Armbands are unisex, are easy to make, can be worn over almost anything, and are visible without being overly distracting or offensive. Buttons are a more traditional way of communicating a political message, but you have to buy the button from somewhere, it's not something easily made at home.

So, an armband. But what color armband?

Around the time of the Moratorium, people wore black armbands. Those are easy to make -- most people have some black construction paper or black fabric around the house. But they're not unique: they carry both good freight (black is the color of mourning) a other freight that is not always helpful (Iraq is not Vietnam; many people who either supported the Vietnam war, or who today don't want to be associated with its protestors would nonetheless oppose torture).

In any case, I think that mourning isn't quite the right sentiment; something more active would be better -- something which suggests that wearers want to reclaim basic American values. That might suggest that the ideal colors would be red, white, and blue, symbolizing the desire to return to traditional American values -- no torture, fair trials. But the trouble with a red, white and blue armband is that it is a lot more trouble to make than a monochrome one. I am sure if I tried to make one with three stripes out of construction paper it would fall apart.

So that brings me to white. White is a practical color for an armband -- everyone has white paper or fabric. Traditionally, it's the color of purity, something we'd like to reclaim by removing this stain in the statute books. Again, though, there's a uniqueness problem: the white band has been adopted as a symbol by many groups in the past and even the present. For example, Make Poverty History has an ongoing White Band Campaign -- although theirs is one of those plastic things..

So at present I'm leaning towards a white armband. I'd appreciate comments, though, as to

• whether a visibility campaign makes sense
• whether a white armband is the right sort of symbol
• and especially, how one gets this to take off.

100 Tortured Each Day in Iraq

It is of course a great faux pas in current political discourse to suggest that just maybe the Iraqi people are even worse off today than they were under Saddam.

I would guess that the Kurds may be better off (so far); my sense is that in many other parts of the country it's not so clear at all given the physical destruction of a good chunk of several cities, the damage to the oil and electrical systems, the escalating casualties, the slide into civil war, the new enjoyment of civil liberties such as freedom of the press (not) and, now, news of widespread torture by the Iraqi government and others.

Time to dig out my Edwin Starr and my Bruce Springsteen. (Wikipedia suggests that "War" is one of the most popular protest songs ever recorded..)

Full Text of Padilla Motion Alleging Outrageous Government Conduct

Thanks to David Markus, I have an e-copy of Padilla's motion alleging outrageous government conduct. Have it in the original .rft or in my conversion to .pdf.

(Earlier post: Padilla Torture Claims Detailed.)

Great Cartoon by Stuart Carlson

'Republicans Just Married the Torture Issue Shortly Before Election Day'

Maybe it begins?

The Agonist, Movements and Parties:For one Congressman, at least, torture doesn't seem like an issue he really wants to engage in. In fact, when the candidate I work for (Bob Johnson ... DrBob around here) forcefully challenged John McHugh on torture using the language of morality, well, there's no other way to put it: John McHugh freaked out.

...

That's some reaction, hm? He isn't attempting to plead the need for torture - he's trying to deny it happens under this bill.

Yep. He wants as far away from the moral implications of torture as he can possibly get. Because Americans would freak out at some of the techniques.

They were torturing before. They will torture again. And if a bill that outlaws torture came through, Bush would castrate it with a signing statement.

But politically - Republicans, in all their fun and excitement about making liberal heads explode, got a little carried away. They just married the issue shortly before election day without knowing precisely and specifically which techniques they authorized.

Now it's time to start telling the American people what techniques Republicans potentially just authorized in loving and specific detail (ouch for the Dems that crossed the aisle, but it's called "collateral damage" and it serves them right).

Handled right it's a baby seal hunt. Wear clothes that don't stain.

Personally, I'm a bit more dubious about the ease of getting the message out, and I find the baby seal image somewhat disturbing and inappropriate, but I do like the energy and optimism here.

Text of the Law Professors' Letter Against the Bush-McCain Torture Bill

I couldn't find an online source for the text of the law professors' letter against the Bush-McCain Torture Bill, except one behind a clickwall, so I decided to publish it below. I gather that it garnered 609 signatures -- which is a lot given the short time it was open for signature.

Dear Members of Congress,

We write as legal scholars to urge you to prevent adoption of the so-called “compromise” bill, S.3929, which would rob individuals detained by the United States of the hallmark of American freedom, the right of anyone detained by the government to demand to know why and to challenge the conditions of confinement before a federal court, independent of the executive and the military. Responding to the real challenges posed by the dangers of terrorism does not require the sacrifice of our vital legal traditions—on the contrary, upholding the rule of law can keep us all safer. We identify three central reasons why this bill presents us with an urgent test of our nation's constitutional and democratic values, and we ask you in the strongest possible terms to reject it.

• The bill's most shocking feature is its elimination of habeas corpus review for non-U.S. citizen detainees. Triggered the moment that the executive labels an individual as an enemy combatant,¹ the bill confines judicial review to verifying the military commission decision if there is one. Habeas would not be available to test prolonged detention with no status review. By eliminating habeas corpus review for non-U.S. citizens detained in U.S. jurisdiction and sharply confining courts' jurisdiction over actions concerning any aspect of their detention, the bill prevents consideration of the conditions of detention and interrogation. The Supreme Court has described, “[t]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action,” Harris v. Nelson, 394 U.S. 286, 290-91 (1969), yet Congress is poised to eviscerate the courts' power to consider habeas corpus petitions on behalf of non-U.S. citizens, and to strip the courts' jurisdiction “to consider any other action against the United States or its agents relating to any aspect of the detention.”²If this provision takes effect as law and withstands legal challenges, the President evidently will be able to detain individuals indefinitely, unrestrained by any judicial check on conditions of their detention. Both prior to and following determination of combatant status, detainees apparently would have no way to force the government to bring criminal charges. Blocked from access to nonpolitical judges, the detainees will have no forum in which to challenge detention without criminal trial or unlawful treatment. Their only remaining alternative would be to challenge their continued detention before the U.S. Military's Administrative Review Board, a mechanism so inadequate that it has proven on numerous occasions to be unable to effectuate the release of the very Guantanamo detainees it has recommended for release or repatriation.³ Moreover, to eliminate any doubt that the bill seeks to tie the hands of the judiciary with regard to issues of detainee abuse, it provides that “[n]o person may invoke the Geneva Conventions… as a source of rights in any court of the United States or its States or territories.”⁴ The proponents justify this dramatic abandonment of the historic instrument of freedom and safeguard against government abuse as a means of saving time, not a crucial tool to ensure national safety. The bill drastically narrows the grounds for criminal liability under the Federal War Crimes Act, 18 U.S.C. 2441.⁵ In doing so, it seems to license the executive to reinterpret the Geneva Conventions in ways that would uproot understandings that have been in place since 1949, that the Supreme Court has recently affirmed in Hamdan v. Rumsfeld, – U.S. – (June 29, 2006) and that have recently been affirmed by Senator John McCain.⁶These sections degrade the ability of the judiciary to fulfill its central function of interpreting the law. The proposed legislation would hand to the President apparently exclusive authority to decide which techniques violate the Geneva Conventions for purposes of criminal sanction under the War Crimes Act, so long as they do not fall within the category of “grave breaches” created by this bill.⁷ Only those enumerated “grave breaches,” like “Rape” and “Murder,” would be definitely criminalized, leaving abuses which are not on the list, such as manslaughter, up to presidential discretion. This bill could potentially permit Central Intelligence Agency personnel to escape liability for beating people to the point of leaving multiple bruises, or for inducing hypothermia by placing detainees in a cold cell and pouring freezing water on them. No one can say what the result will be, or how far the bar on acceptable practice will have been irreversibly lowered.
• Finally, the bill abandons our longstanding constitutional protections against punishing people on the basis of coerced testimony⁸and against denying individuals the opportunity to defend themselves through access to exculpatory evidence known to the government.⁹ These provisions reward and encourage torture, and undermine the fairness of the resulting trials.

Taken together, the bill's provisions rewrite American law to evade the fundamental principles of separation of powers, due process, habeas corpus, fair trials, and the rule of law, principles that, together, prohibit state-sanctioned violence. If there is any fixed point in the historical understandings of constitutional freedom that help to define us as a people, it is that no one may be picked up and locked up by the American state in secret or at an unknown location, or without opportunity to petition an independent court for inspection of the lawfulness of the lockup and of the treatment handed out by the state to the person locked up, under legal standards from time to time defined by Congress. This core principle should apply with full force to all detentions by the American state, regardless of the citizenship of detainees.

The legislation now pending before Congress would constitute a gross and direct repudiation of this principle. It aims to prevent any degree of judicial inspection of conditions of detention of any person whom the executive for any reason, disclosed or undisclosed, may choose to label and treat as an enemy combatant, and it aims to prevent any degree of judicial inspection of grounds or reasons for detention of any person thus labeled whom the executive may choose to keep locked up forever without any official determination of combatant status. Such lawmaking by Congress would deal a body blow to American constitutional identity and American constitutional pride. It would in that way weaken us as a people, not only abroad but at home. It would produce major legal challenges and once more invite both our international critics and our friends to point to the U.S. government's apparent effort to evade widely accepted legal and moral constraints, tarnishing our reputation and our standing.

Legislation so grave ought not even to be seriously considered, much less enacted, in the absence of overwhelmingly urgent reasons. We are told that pending and foreseeable habeas corpus petitions make demands on judicial time and energies, and that having to fashion responses to them is distracting to military personnel and thus impedes our war effort. With all respect, those reasons are paltry when set beside the core principles of American justice and decency at stake.

No doubt there is a possibility that courts in some habeas corpus cases could get more seriously in the way of the executive. A habeas court might find that our country's laws as they stand, unless and until changed by Congress, require adjustments of military and executive branch practice that the executive would find undesirable or contrary to the national interest. We have not heard any of our legislators objecting to habeas corpus on that ground, and we believe we know why we have not: For to object to habeas corpus on that ground is to set at naught the rule of law.

We cannot in good conscience stand by while a bill that erodes protections against state-sanctioned abuse is enacted. We therefore urge you to do everything in your power to prevent the enactment of this bill, and to ensure that any legislation passed on this subject complies fully with our constitutional standards.

Respectfully,

[signatures]

1. Thus, Sect. 106a2 reads: "(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who--
`(A) is currently in United States custody; and
`(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."
The term is defined in Sect. 948a(4): "UNLAWFUL ENEMY COMBATANT- The term `unlawful enemy combatant' means an individual engaged in hostilities against the United States who is not a lawful enemy combatant." A lawful enemy combatant is defined as follows in Sect. 948a(3) "LAWFUL ENEMY COMBATANT- The term `lawful enemy combatant' means an individual who is--
`(A) a member of the regular forces of a State party engaged in hostilities against the United States;
`(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or
`(C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States."

2. Bill S.3929, Sec. 106.

3. See, e.g., "Stuck in Guantánamo," International Herald Tribune, April 22, 2006, available at
http://www.iht.com/bin/print_ipub.php?file=/articles/2006/04/21/news/gitmo.php. The provision curtailing habeas corpus for detainees will inevitably give rise to a constitutional challenge under Art. I, section 9, clause 2 (limiting Congressional power to suspend the writ to circumstances of rebellion or invasion) and the due process clause of the 5th Amendment. The inevitability of judicial review underscores how the rush to enact the current compromise bill reflects partisan political maneuvering.

4. Bill S.3929, Sec. 107(a).

5. The War Crimes Act defines war crime to include any conduct "(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict;" while the compromise bill substitutes
"(3) which constitutes a grave breach of common Article 3 as defined in subsection (d) when committed in the context of and in association with an armed conflict not of an international character; or.'" Bill S. 3929, Sec. 108(b)(1).

6. McCain Comments on Military Commission Act of 2006, Sept. 15, 2006, http://mccain.senate.gov/index.cfm?fuseaction=NewsCenter.ViewPressRelease&Content_id=2284.

7. Bill S.3929, Sec. 108(a)(2)-(3), 108(b)(`d)(`1)(`A)-(`I); see also Convention (III) Relative to the Treatment of Prisoners of War. Geneva, 12 Aug. 1949, Art. 129-130.

8. Bill S.3929, Sec. 104(a)(1)( `Ch. 47A)( `Subch. III)( `Sec. 948r)( `c)-( `d).

9. Bill S.3929, Section 949j.

Bill S. 3929 provisions

• Bill S. 3929, Sec. 104(a)(1)( ‘Ch. 47A)( ‘Subch. III)( ‘Sec. 948r)( ‘c). Statements Obtained Before Enactment of Detainee Treatment Act of 2005. A statement obtained before December 30, 2005 (the date of the enactment of the Detainee Treatment Act of 2005), in which the degree of coercion is disputed may be admitted only if the military judge finds that--

‘(1) the totality of the circumstances renders it reliable and possessing sufficient probative value; and

‘(2) the interests of justice would best be served by admission of the statement into evidence.

• Bill S. 3929, Sec. 104(a)(1)( ‘Ch. 47A)( ‘Subch. III)( ‘Sec. 948r)( ‘d). Statements Obtained After Enactment of Detainee Treatment Act of 2005. A statement obtained on or after December 30, 2005 (the date of the enactment of the Detainee Treatment Act of 2005), in which the degree of coercion is disputed may be admitted only if the military judge finds that--

‘(1) the totality of the circumstances renders it reliable and possessing sufficient probative value;

‘(2) the interests of justice would best be served by admission of the statement into evidence; and

‘(3) the interrogation methods used to obtain the statement do not violate the cruel, unusual, or inhumane treatment or punishment prohibited by the Fifth, Eighth, and 14th Amendments to the United States Constitution.‛

• Bill S. 3929, Sec. 104(a)(1)( ‘Ch. 47A)( ‘Subch. III)( ‘Sec. 949j)( ‘b). Protection of Classified Information-(1) With respect to the discovery obligations of trial counsel under this section, the military judge, upon motion of trial counsel, shall authorize, to the extent practicable--

‘(A) the deletion of specified items of classified information from documents to be made available to the accused;

‘(B) the substitution of a portion or summary of the information for such classified documents; or

‘(C) the substitution of a statement admitting relevant facts that the classified information would tend prove.

‘(2) The military judge, upon motion of trial counsel, shall authorize trial counsel, in the course of complying with discovery obligations under this section, to protect from disclosure the sources, methods, or activities by which the United States acquired evidence if the military judge finds that the sources, methods, or activities by which the United States acquired such evidence are classified. The military judge may require trial counsel to provide, to the extent practicable, an unclassified summary of the sources, methods, or activities by which the United States acquired such evidence.

• Bill S. 3929, Sec. 104(a)(1)( ‘Ch. 47A)( ‘Subch. III)( ‘Sec. 949j)( ‘c). Exculpatory Evidence-(1) As soon as practicable, trial counsel shall disclose to the defense the existence of any evidence known to trial counsel that reasonably tends to exculpate the accused. Where exculpatory evidence is classified, the accused shall be provided with an adequate substitute in accordance with the procedures under subsection (b).

• Bill S. 3929, Sec. 106. Habeas Corpus Matters.

(a) In General- Section 2241 of title 28, United States Code, is amended--

(1) by striking subsection (e) (as added by section 1005(e)(1) of Public Law 109-148 (119 Stat. 2742)) and by striking subsection (e) (as added by added by section 1405(e)(1) of Public Law 109-163 (119 Stat. 3477)); and

(2) by adding at the end the following new subsection:

‘(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who--

‘(A) is currently in United States custody; and

‘(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

‘(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien detained by the United States who--

‘(A) is currently in United States custody; and

‘(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.'.

(b) Effective Date- The amendments made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.

• Bill S. 3929, Sec. 107. Treaty Obligations not Establishing Grounds for Certain Claims.

(a) In General- No person may invoke the Geneva Conventions, or any protocols thereto, in any habeas or civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States, is a party, as a source of rights in any court of the United States or its States or territories.

(b) Geneva Conventions Defined- In this section, the term ‘Geneva Conventions' means--

(1) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, done at Geneva August 12, 1949 (6 UST 3217);

(2) the Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217);

(3) the Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316); and

(4) the Convention Relative to the Protection of Civilian Persons in Time of War, done at Geneva August 12, 1949 (6 UST 3516).

• Bill S. 3929, Sec. 108. Implementation of Treaty Obligations.

(a) Implementation of Treaty Obligations-

(1) IN GENERAL- The acts enumerated in subsection (d) of section 2441 of title 18, United States Code, as added by subsection (b) of this section, and in subsection (c) of this section, constitute violations of common Article 3 of the Geneva Conventions prohibited by United States law.

(2) PROHIBITION ON GRAVE BREACHES- The provisions of section 2441 of title 18, United States Code, as amended by this section, fully satisfy the obligation under Article 129 of the Third Geneva Convention for the United States to provide effective penal sanctions for grave breaches which are encompassed in common Article 3 in the context of an armed conflict not of an international character. No foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated in subsection (d) of such section 2441.

(3) INTERPRETATION BY THE PRESIDENT- (A) As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.

(B) The President shall issue interpretations described by subparagraph (A) by Executive Order published in the Federal Register.

(C) Any Executive Order published under this paragraph shall be authoritative (as to non-grave breach provisions of common Article 3) as a matter of United States law, in the same manner as other administrative regulations.

(D) Nothing in this section shall be construed to affect the constitutional functions and responsibilities of Congress and the judicial branch of the United States.

(4) DEFINITIONS- In this subsection:

(A) The term ‘Geneva Conventions' means--

(i) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, done at Geneva August 12, 1949 (6 UST 3217);

(ii) the Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217);

(iii) the Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316); and

(iv) the Convention Relative to the Protection of Civilian Persons in Time of War, done at Geneva August 12, 1949 (6 UST 3516).

(B) The term ‘Third Geneva Convention' means the international convention referred to in subparagraph (A)(iii).

(b) Revision to War Crimes Offense Under Federal Criminal Code-

(1) IN GENERAL- Section 2441 of title 18, United States Code, is amended--

(A) in subsection (c), by striking paragraph (3) and inserting the following new paragraph (3):

‘(3) which constitutes a grave breach of common Article 3 as defined in subsection (d) when committed in the context of and in association with an armed conflict not of an international character; or'; and

(B) by adding at the end the following new subsection:

‘(d) Common Article 3 Violations-

‘(1) PROHIBITED CONDUCT- In subsection (c)(3), the term ‘grave breach of common Article 3' means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:

‘(A) TORTURE- The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.

‘(B) CRUEL OR INHUMAN TREATMENT- The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control.

‘(C) PERFORMING BIOLOGICAL EXPERIMENTS- The act of a person who subjects, or conspires or attempts to subject, one or more persons within his custody or physical control to biological experiments without a legitimate medical or dental purpose and in so doing endangers the body or health of such person or persons.

‘(D) MURDER- The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause.

‘(E) MUTILATION OR MAIMING- The act of a person who intentionally injures, or conspires or attempts to injure, or injures whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause, by disfiguring the person or persons by any mutilation thereof or by permanently disabling any member, limb, or organ of his body, without any legitimate medical or dental purpose.

‘(F) INTENTIONALLY CAUSING SERIOUS BODILY INJURY- The act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war.

‘(G) RAPE- The act of a person who forcibly or with coercion or threat of force wrongfully invades, or conspires or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused, or with any foreign object.

‘(H) SEXUAL ASSAULT OR ABUSE- The act of a person who forcibly or with coercion or threat of force engages, or conspires or attempts to engage, in sexual contact with one or more persons, or causes, or conspires or attempts to cause, one or more persons to engage in sexual contact.

‘(I) TAKING HOSTAGES- The act of a person who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons.

‘(2) DEFINITIONS- In the case of an offense under subsection (a) by reason of subsection (c)(3)--

‘(A) the term ‘severe mental pain or suffering' shall be applied for purposes of paragraphs (1)(A) and (1)(B) in accordance with the meaning given that term in section 2340(2) of this title;

‘(B) the term ‘serious bodily injury' shall be applied for purposes of paragraph (1)(F) in accordance with the meaning given that term in section 113(b)(2) of this title;

‘(C) the term ‘sexual contact' shall be applied for purposes of paragraph (1)(G) in accordance with the meaning given that term in section 2246(3) of this title;

‘(D) the term ‘serious physical pain or suffering' shall be applied for purposes of paragraph (1)(B) as meaning bodily injury that involves--

‘(i) a substantial risk of death;

‘(ii) extreme physical pain;

‘(iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or

‘(iv) significant loss or impairment of the function of a bodily member, organ, or mental faculty; and

‘(E) the term ‘serious mental pain or suffering' shall be applied for purposes of paragraph (1)(B) in accordance with the meaning given the term ‘severe mental pain or suffering' (as defined in section 2340(2) of this title), except that--

‘(i) the term ‘serious' shall replace the term ‘severe' where it appears; and

‘(ii) as to conduct occurring after the date of the enactment of the Military Commission Act of 2006, the term ‘serious and non-transitory mental harm (which need not be prolonged)' shall replace the term ‘prolonged mental harm' where it appears.

‘(3) INAPPLICABILITY OF CERTAIN PROVISIONS WITH RESPECT TO COLLATERAL DAMAGE OR INCIDENT OF LAWFUL ATTACK- The intent specified for the conduct stated in subparagraphs (D), (E), and (F) or paragraph (1) precludes the applicability of those subparagraphs to an offense under subsection (a) by reasons of subsection (c)(3) with respect to--

‘(A) collateral damage; or

‘(B) death, damage, or injury incident to a lawful attack.

‘(4) INAPPLICABILITY OF TAKING HOSTAGES TO PRISONER EXCHANGE- Paragraph (1)(I) does not apply to an offense under subsection (a) by reason of subsection (c)(3) in the case of a prisoner exchange during wartime.'.

(2) RETROACTIVE APPLICABILITY- The amendments made by this subsection, except as specified in subsection (d)(2)(E) of section 2441 of title 18, United States Code, shall take effect as of November 26, 1997, as if enacted immediately after the amendments made by section 583 of Public Law 105-118 (as amended by section 4002(e)(7) of Public Law 107-273).

(c) Additional Prohibition on Cruel, Inhuman, or Degrading Treatment or Punishment-

(1) IN GENERAL- No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

(2) CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT DEFINED- In this subsection, the term ‘cruel, inhuman, or degrading treatment or punishment' means cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

(3) COMPLIANCE- The President shall take appropriate action to ensure compliance with this subsection, including through the establishment of administrative rules and procedures.

Title 18, U.S.C. provisions

• 18 &167; 2246(3). the term “sexual contact” means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person;

• 18 &167; 2340(2). “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality;‛

• 18 &167; 2441. War Crimes Act.

a) Offense.— Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

(b) Circumstances.— The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).

(c) Definition.— As used in this section the term “war crime” means any conduct—

(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;

(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;

(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or

(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

Convention (III) relative to the Treatment of Prisoners of War provisions

Art 129. The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed. or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.

In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the present Convention.

• Art 130. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.

How Low Can We Go? Pretty Low

Steve Vladeck argues that the Bush-McCain Torture Bill is worse than the Alien and Sedition Act -- because it shields itself from judicial review.

Deans and Professors Urge Congress to Amend Bills on Military Commissions and FISA

A group of more than sixty law school deans and professors have written an open letter to Congress expressing concern about the Military Commissions Act and the National Security Surveillance Act.

You can read the full letter here. [link fixed] I'm happy to note that Dean Lynch is a signatory.

There's also a separate, broader, law professors' letter that I signed and I'll post a link to it when I can.

Torture Bill: NYT Editorial Board Gets It

The New York Times editorial board often blows a weak and uncertain trumpet. But today's editorial on the Torture Bill sounds exactly the right notes: horror, anger, and despair.

Antiterrorism Bill on Detainees, Geneva Conventions - Rushing Off a Cliff
Here's what happens when this irresponsible Congress railroads a profoundly important bill to serve the mindless politics of a midterm election: The Bush administration uses Republicans' fear of losing their majority to push through ghastly ideas about antiterrorism that will make American troops less safe and do lasting damage to our 217-year-old nation of laws — while actually doing nothing to protect the nation from terrorists. Democrats betray their principles to avoid last-minute attack ads. Our democracy is the big loser.

Republicans say Congress must act right now to create procedures for charging and trying terrorists — because the men accused of plotting the 9/11 attacks are available for trial. That's pure propaganda. Those men could have been tried and convicted long ago, but President Bush chose not to. He held them in illegal detention, had them questioned in ways that will make real trials very hard, and invented a transparently illegal system of kangaroo courts to convict them.

It was only after the Supreme Court issued the inevitable ruling striking down Mr. Bush's shadow penal system that he adopted his tone of urgency. It serves a cynical goal: Republican strategists think they can win this fall, not by passing a good law but by forcing Democrats to vote against a bad one so they could be made to look soft on terrorism.

Last week, the White House and three Republican senators announced a terrible deal on this legislation that gave Mr. Bush most of what he wanted, including a blanket waiver for crimes Americans may have committed in the service of his antiterrorism policies. Then Vice President Dick Cheney and his willing lawmakers rewrote the rest of the measure so that it would give Mr. Bush the power to jail pretty much anyone he wants for as long as he wants without charging them, to unilaterally reinterpret the Geneva Conventions, to authorize what normal people consider torture, and to deny justice to hundreds of men captured in error.

These are some of the bill's biggest flaws:

Enemy Combatants: A dangerously broad definition of “illegal enemy combatant” in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted.

The Geneva Conventions: The bill would repudiate a half-century of international precedent by allowing Mr. Bush to decide on his own what abusive interrogation methods he considered permissible. And his decision could stay secret — there's no requirement that this list be published.

Habeas Corpus: Detainees in U.S. military prisons would lose the basic right to challenge their imprisonment. These cases do not clog the courts, nor coddle terrorists. They simply give wrongly imprisoned people a chance to prove their innocence.

Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals. The bill would limit appeals and bar legal actions based on the Geneva Conventions, directly or indirectly. All Mr. Bush would have to do to lock anyone up forever is to declare him an illegal combatant and not have a trial.

Coerced Evidence: Coerced evidence would be permissible if a judge considered it reliable — already a contradiction in terms — and relevant. Coercion is defined in a way that exempts anything done before the passage of the 2005 Detainee Treatment Act, and anything else Mr. Bush chooses.

Secret Evidence: American standards of justice prohibit evidence and testimony that is kept secret from the defendant, whether the accused is a corporate executive or a mass murderer. But the bill as redrafted by Mr. Cheney seems to weaken protections against such evidence.

Offenses: The definition of torture is unacceptably narrow, a virtual reprise of the deeply cynical memos the administration produced after 9/11. Rape and sexual assault are defined in a retrograde way that covers only forced or coerced activity, and not other forms of nonconsensual sex. The bill would effectively eliminate the idea of rape as torture.

• There is not enough time to fix these bills, especially since the few Republicans who call themselves moderates have been whipped into line, and the Democratic leadership in the Senate seems to have misplaced its spine. If there was ever a moment for a filibuster, this was it.

We don't blame the Democrats for being frightened. The Republicans have made it clear that they'll use any opportunity to brand anyone who votes against this bill as a terrorist enabler. But Americans of the future won't remember the pragmatic arguments for caving in to the administration.

They'll know that in 2006, Congress passed a tyrannical law that will be ranked with the low points in American democracy, our generation's version of the Alien and Sedition Acts.

Dear Senator Reid

If the New York Times is to be believed, the Senate Democrats are in full collapse on the moral question of the day: torture. And I'm not surprised. No, actually I am just a little surprised. But maybe I shouldn't be.

Yes, we've had years of evidence that the Democrats in the Senate don't understand how to be an opposition party; but lately they've seemed to grow measurable spines.

And, yes, when in 2001 they passed the Authorization for Use of Military Force it became painfully obvious that they didn't even remember recent history (think "Gulf of Tonkin Resolution").

But even so, I still had the naive idea that maybe there were some issues where even the modern Senator couldn't just hold his nose and let himself be cowed into something stupid and evil.

Not so?

Deal Is Likely on Detainees but Not on Eavesdropping: Democrats, who have found themselves on the losing end of the national security debate the past two national elections, said the changes to the bill had not yet reached a level that would cause them to try to block it altogether.

"We want to do this," said Senator Harry Reid of Nevada, the Democratic leader. "And we want to do it in compliance with the direction from the Supreme Court. We want to do it in compliance with the Constitution."

But it sure doesn't sound like it, does it? ("We want to do this"?!?)

So, Senator Reid and fellow members of the self-styled World's Greatest Deliberative Body, here's what I have to say to you as you rush to announce your acquiescence to a fast-changing bill you haven't even yet read. Here's what I have to say as you give de facto immunity to people who have a record of torturing and killing prisoners in secret cells. Here's what I say to you as prepare to gut habeas corpus. Here's what I say to you as you trash longstanding constitutional protections against punishing people on the basis of coerced testimony. Here's what I say to you as you reverse hundreds of years of Anglo-American tradition guaranteeing everyone the right to defend themselves through access to exculpatory evidence known to the government. Here's what I say to you as you make weak protests to a bill that gives lip service to the Geneva Conventions but in fact removes the means by which they would be enforced.

Here's what I have to say as you contemplate voting for authority that will not only be deployed against aliens abroad, but might even be deployed against aliens on US territory, and against US citizen abroad, or even at home. Here's what I say to you as you set in motion a process which will permit the secret detention -- no habeas, remember? -- and "aggressive questioning" of those whom that good and reliable Mr. Gonzales or that thoughtful Mr. Rumsfeld, both persons well-known to be incapable of error, decide is an enemy combatant.

History will judge you cruelly. The best outcome will be that this is a long bad blip, like the Alien and Sedition Acts, or the Japanese Internment; but the worst outcome is that this becomes emblematic of a turning point in which our Senate, like the Roman Senate before it, presided over a great society's moral and then political decline.

Too high minded and egghead-like for you? Ok, let's talk bare-knuckle politics: Listen up! This is your base talking! A Democratic party that won't stand up and oppose and, yes, fillibuster something as bad as this bill isn't worth half what it should be. If my party takes a fall on torture, than it really isn't my party any more and I want it back. Yes, we'll still vote Democratic in this election: on this and many other issues the Republicans are even worse. But we won't forget. And there are plenty of Lamonts out there.

Senator Reid: Torture is a moral issue. So is accountability for torture. So is the right to a fair trial -- even for the lowest of the low. These are not things you compromise on, or trade off to avoid an attack ad or two.

It's Not Too Late (Yet)

Torture Nation

USA - Still better than North Vietnam. Just less so.

Center for American Progress, Fool Me Twice: The letter of the Conventions was certainly preserved: the bill refuses the president's demand that Congress rewrite the law to reinterpret U.S. obligations under the Geneva Conventions.

But their integrity and spirit is another matter.

Instead of reinterpreting the Conventions directly, the bill does so indirectly, granting the president the authority to issue his own interpretations and making them virtually unchallengeable in court. The bill strips detainees of the ability to challenge the factual and legal basis for their confinement. And it confers retroactive immunity on government officials responsible for serious human rights violations by permitting prosecutions under the War Crimes Act of only the grossest abuses.

What this means is that instead of curbing the secret detention and abuse of terrorist suspects, the bill would authorize the president to continue these practices. While certain "grave breaches"� of the Geneva Conventions would be outlawed, the bill leaves ambiguous which of the catalogue of "alternative interrogation procedures" employed by the CIA would be prohibited.

And, of course, Marty Lederman, Oh, Well, That Explains It:

Courtesy of the New York Times, here's your very own handy-dandy pocket-sized flow chart for understanding what the "compromise" legislation would, and would not, prohibit.

And now, just for kicks, compare that to this alternative description of what the law forbids:

"[T]he following acts are and shall remain prohibited at any time and in any place whatsoever with respect to [detainees]: violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture."

Which statement of the law is more "vague" and ambiguous?

Trainwreck in slow motion. Right before your eyes.

We have to do something -- but what?

Shame and Horror

I am too thoroughly depressed by recent events to post anything about the capitulation of the power centers of the Senate to the administration's program of lawlessness, torture, with the undermining of one of the great success stories of international legality thrown in for garnish.

Fortunately, others are made of sterner stuff.

Marty Lederman, Senators Snatch Defeat From Jaws of Victory: U.S. to be First Nation to Authorize Violations of Geneva

Marty Lederman, Three of the Most Significant Problems with the "Compromise"

Stanford Levinson, Legal Realism 101 and the McCain Capitulation

The Carpetbagger Report, McCain, Warner, and Graham cut and ran

The Democrats, having until now largely chosen to stay quiet on grounds of political expediency, now face a moral choice about how hard to fight the destruction of habeas corpus and the ratification of de facto unreviewable power to torture.

First option, block this horror -- filibuster if needed -- and risk paying a political price: For a taste of the 'vote for us or die' campaign that's in the works, see this utterly repulsive ad already being run by Rep. Nancy Johnson (R-CT). And recall that Johnson is supposedly one of the nicer Republicans (and a new friend of Sen. Lieberman's).

Second option, do the usual infective stuff and pay a different political price (the base will turn on you, as will anyone else with some decency). Plus earn a black spot in history.

Torture Is a Moral Issue

Someone gets it: The National Council of Churches takes out a big ad in the New York Times to say that Torture is a Moral Issue. President Carter is one of the signatories.

Amazing that it needs saying.

Even more amazing that a House committee just voted (on second try) to authorize the government to torture away...

And spot all the euphemisms running around: "harsh interrogation techniques," "enhanced questioning" or "aggressive methods". It is nothing less than horrible.

Dan Froomkin Has A Question

In addition to his column, my brother does occasional online Q&A sessions at Washingtonpost.com. I think they might even be better than his columns. Here's my favorite bit from the most recent one:

Va.: If you could ask Bush one question and he was forced to give a straight answer, what would it be?

Dan Froomkin: Precisely how do you define torture?

Will the US Legislate Torture

The headline of today's editorial in the Washington Post says almost all of it: A Defining Moment for America - The president goes to Capitol Hill to lobby for torture.

Here's the political snapshot: the house has fallen into line and has voted to give the president unreviewable authority to torture. The Senate has balked, and has voted an alternative bill that is merely very very bad rather than despicable. Senator Reid, the Democratic minority leader, has indicated that Bush's version would be filibustered if it made it to the floor. President Bush has vowed to veto the Senate bill if it gets to his desk (but I personally predict this is a hollow threat). There have been some heavyweight letters on all sides which I haven't the time to summarize while at these meetings.

No bill at all would be the best outcome, and there's at least some hope of it. But I'm not hopeful yet.

Yes, It's Torture

Kevin Drum asks (rhetorically), Torture?:

President Bush announced yesterday that 14 "high value detainees" would be transferred from secret CIA prisons to Guantanamo Bay. ABC News describes the interrogation techniques that have been used on on them:

The first — the attention grab, involving the rough shaking of a prisoner.

Second — the attention slap, an open-handed slap to the face.

Third — belly slap, meant to cause temporary pain, but no internal injuries.

Fourth —long-term standing and sleep deprivation, 40 hours at least, described as the most effective technique.

Fifth — the cold room. Prisoners left naked in cells kept in the 50s and frequently doused with cold water.

The CIA sources say the sixth, and harshest, technique was called "water boarding," in which a prisoner's face was covered with cellophane, and water is poured over it (pictured above) — meant to trigger an unbearable gag reflex.

Is this torture?

I can't see how anyone can call waterboarding anything other than torture. I'd also include some of the others on this list -- even "open" or "belly" slapping prisoners sounds like a milder form of torture and, whatever you call it, is banned by both the Geneva conventions and every code of practice we use domestically.

And it's all wrong.

Another Win for the Rule of Law

ABC News: High-Value Detainees Will Be Given Prisoner-of-War Status:

ABC News has learned that President Bush will announce that high-value detainees now being held at secret CIA prisons will be transferred to the Department of Defense and granted protections under the 1949 Geneva Conventions. It will be the first time the Administration publicly acknowledges the existence of the prisons.

A source familiar with the president's announcement says it will apply to all prisoners now being held by the CIA, including Khalid Sheikh Mohammed, the alleged mastermind of the Sept.11 attacks, and senior al Qaeda leader Ramzi Binalshibh.

The source says there are "about a dozen" prisoners now being held by the CIA.

Would say more but it's a very busy day.

UPDATE: I think ABC was far too optimistic. The NYT report just says they are going out of the secret CIA Torture facilities and into Guantanamo; common article 3 will apply but not POW status. This is not as big a win as it sounded, though it is a step in the right direction.

In fact the key objective here seems to be domestic politics as explained by by Digby:

According to Pete Williams on MSNBC, Bush's announcement that they are moving the 14 terrorists we've had holed up in secret prisons to Guantanamo is a political ploy to force Democrats to have to give "rights" to Khalid Sheik Mohammed if they want to challenge his Guantanamo policies. It's quite clever.

Might I suggest that since they've just spent the last week shrieking about fascists and Nazi's and comparing the GWOT to WWII, that Democrats simply remind them that the gold standard for trials of fascists is the Nuremberg trials? Perhaps we could settle this whole thing by simply saying that Nuremberg should serve as the basis for these new "Islamo-fascist" trials and put an end to the controversy.

Of course, that means the trials would have to be public.

Gen. Miller Gets a Medal

Buried deep inside a story buried deep inside today's New York Times, General in Abu Ghraib Case Retires After Forced Delay, we find this gem: the General who presided over US torture inhumane treatment of detainees just got a medal,

At his retirement ceremony Monday, General Miller received the Distinguished Service Medal, which is awarded for exceptionally commendable service in a position of great responsibility, Army officials said.

Recall that Gen. Miller is the man who appears to have brought Gitmo-style 'interrogation' tactics to Iraq, and then used the Sgt. Shultz defense:

Because of his experience as a commander of the detention center at Guantánamo Bay, General Miller was sent to Iraq in the summer of 2003 to review the detention system and interrogation techniques there. His mission was to recommend methods that would increase the success of intelligence-gathering as coalition forces battled a tenacious and growing insurgency.

Subsequently, dogs were used as a tool of intimidation of detainees at Abu Ghraib, and debate has swirled over responsibility for abusive interrogation procedures.

General Miller initially invoked his right not to give testimony that might incriminate him, and he did not testify at the first court-martial involving a dog handler at Abu Ghraib prison.

In May, he did testify at a second court-martial for another dog handler. During his testimony, General Miller said he never suggested that dogs be used to intimidate prisoners during interrogations in Iraq.

Big Win for Rule of Law

I am far away on a very very slow link, but from what I can tell the announcement that the USA will henceforth again adhere to a key part of its obligations under the Geneva convention looks like a big victory for the rule of law.

And, yes, there can be devils in the details. (But I do agree that there is nothing at all inherently wrong with *properly constituted* courts martial to hear the status claims of POWs and other detainees. Quite the contrary. And a big step up from what they've been getting.)

The Fountainhead of Torture

Barton Gellman's Washington Post review of David Ron Suskind's new book, "The One Percent Doctrine," makes it clear who we have to thank for the nation's new torture policy: George W. Bush himself. The revealing anecdote concerns the much-touted capture of Abu Zubaydah, whom Bush himself touted as "one of the top operatives plotting and planning death and destruction on the United States" -- a statement made two weeks after being briefed that this was not in fact the case. Bush's reaction? Let's torture the guy to see if he'll live up to his billing.

Abu Zubaydah, his captors discovered, turned out to be mentally ill and nothing like the pivotal figure they supposed him to be. CIA and FBI analysts, poring over a diary he kept for more than a decade, found entries "in the voice of three people: Hani 1, Hani 2, and Hani 3" -- a boy, a young man and a middle-aged alter ego. All three recorded in numbing detail "what people ate, or wore, or trifling things they said." Dan Coleman, then the FBI's top al-Qaeda analyst, told a senior bureau official, "This guy is insane, certifiable, split personality."

Abu Zubaydah also appeared to know nothing about terrorist operations; rather, he was al-Qaeda's go-to guy for minor logistics -- travel for wives and children and the like. That judgment was "echoed at the top of CIA and was, of course, briefed to the President and Vice President," Suskind writes. And yet somehow, in a speech delivered two weeks later, President Bush portrayed Abu Zubaydah as "one of the top operatives plotting and planning death and destruction on the United States." And over the months to come, under White House and Justice Department direction, the CIA would make him its first test subject for harsh interrogation techniques.

...

"I said he was important," Bush reportedly told Tenet at one of their daily meetings. "You're not going to let me lose face on this, are you?" "No sir, Mr. President," Tenet replied. Bush "was fixated on how to get Zubaydah to tell us the truth," Suskind writes, and he asked one briefer, "Do some of these harsh methods really work?" Interrogators did their best to find out, Suskind reports. They strapped Abu Zubaydah to a water-board, which reproduces the agony of drowning. They threatened him with certain death. They withheld medication. They bombarded him with deafening noise and harsh lights, depriving him of sleep. Under that duress, he began to speak of plots of every variety -- against shopping malls, banks, supermarkets, water systems, nuclear plants, apartment buildings, the Brooklyn Bridge, the Statue of Liberty. With each new tale, "thousands of uniformed men and women raced in a panic to each . . . target." And so, Suskind writes, "the United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered."

In addition to confirming what we already knew -- Bush lies to us -- we learn several important things from this story:

• Allowing the US government to hold prisoners -- any prisoners -- abroad, outside the easy reach of US courts and due process, is an invitation to abuse. Only if they are POWs, enjoying the full protections of the Geneva Conventions, it is safe to allow our officials to house them in camps beyond our shores.
• Torture made us less secure, creating false alarms. After all, if you were being tortured wouldn't you make stuff up to get them to stop?
• The participants in these atrocities followed orders -- which came from the top, either directly or in the "will no one rid me of this troublesome priest" variety.

Yet, regrettably, the time has come where we must search our consciences and ask if any lesser remedy than impeachment can be sufficient for this sort of behavior. Is anything less a form of implicit complicity, or at least acquiescence? What is the right way to not just protest but punish torturing someone in order to justify lies told to the American public?

These are not meant as rhetorical questions. I do not claim to have the answers in my pocket. As a practical matter, impeachment, even the discussion of it, seems like stupid and impractical politics so long as the Republicans in Congress are able to turn away from what is being done in their, in our, name and either cheer it or reassure themselves that it's not really their responsibility. Hoping that some level of atrocity might open finally open the incumbents' eyes to what they have allowed certainly seems unrealistic. Therefore the right answer -- to the extent morality is about practical outcomes rather than comfortable posturing -- may be that to win as many congressional elections as possible and hope for some decent oversight in 2007. In the absence of candidates speaking out against torture, though, this seems an uncomfortably indirect approach.

What are we to do? Where is the national consensus against this sort of behavior?

Comments -- in civil, measured tones please -- welcomed.

City on a Hill Has Cesspool

The people who founded the United States were fond of quoting the Puritans who came before them for the proposition that the communities formed in the New World would be like a 'city on a hill', that is a beacon, to the peoples of the world.

Square that with this: More Torture:

The latest whitewash of U.S. "interrogation techniques" -- aka torture -- has been released, and in it Brigadier General Richard Formica concluded that it was OK to hold prisoners in cells 4 feet high, 4 feet long and 20 inches wide for several days.

And no one protested?

How much lower will we fall?

If you are reading this and you are a US citizen, remember that this was done in your name.

And if you are reading this from abroad, well, I don't know what to say anymore. 945 days is a long time to go.

4 feet high, 4 feet long and 20 inches wide. That's about the size of a nice desk, except a little taller and much narrower. Two days in the cage is OK? Where do they get this?

And the report hasn't got any general officers up on charges?

Update: More at Needlenose

Air Torture

Amnesty International has a new parody web site devoted to "Air Torture," an insufficiently fictional airline that ferries detainees to places they can be tortured,

Air Torture is the premiere airline transporting detainees to select torture chambers around the world. Organizations such as Amnesty International like to call our business "outsourcing torture" because we deliver all our customers to countries where torture is routinely practiced - but our partners at the U.S. government have come up with a much better name: "extraordinary rendition."

Thanks to the Bush Administration, the "war on terror" has been a big boon to our business. All flights are fully funded by unsuspecting taxpayers in the United States.

'This exists. Not here, but now.'

Via TalkLeft, a pointer to Amnesty International's Swiss chapter's vivid, shocking, trompe- loeil trilingual poster campaign. The French, at least, translates as "This exists. Not here, but now."

Padilla Claims US Relies on Evidence Extracted by Torture

Jose Padilla's lawyers have filed motions to suppress evidence from two sources, one whom he alleges was tortured after US rendition to Morocco. Explosive stuff.

Quick summary at Jurist.

Talkleft has the most details:

One of the witnesses, Binyam Ahmed Muhammad, was held at Guantanamo. The other, Abu Zubayda, is being held in a secret overseas location.

Patel said Muhammad has told his own lawyer that he was whipped, hung from the ceiling of his cell with leather straps and later taken to Morocco where he was tortured with a razor. Patel said Zubayda was treated after his arrest for gunshot wounds, raising questions about "the effect the medications may have had on Abu Zubayda's ability to provide accurate information."

I have just reviewed the defense motion, here is the exact quote:

Binyam Muhammad has informed his attorney that after his arrest in Karachi, Pakistan, he was held in prison where he was hung from the ceiling of his cell with leather straps . Binyam Muhammad was whipped by his Pakistani jailers but they asked him no questions as they had no common language . Binyam Muhammad reports to his counsel that he was questioned by four agents who he believes were FBI agents . He was whipped by the jailers before and after being questioned by the FBI agent who asked him questions about Mr. Padilla. Binyam Muhammad was later flown to Morocco where he was further questioned about Mr. Padilla and tortured by means of a razor being used to make incisions on his chest and his genitals.

The defense alleges these two witnesses were the Government's only sources for the arrest warrant.

It is respectfully submitted that the use of information obtained by torture, whether the torture is disclosed or undisclosed, is an act so unlawful and so contrary to the core values of this Nation as to both shock the conscience and render any search based on such information unreasonable. It is respectfully requested that this Court should hold a hearing so that the circumstances of the interrogation of both Abu Zubayda and Binyam Muhamma can be fully established. At the conclusion of such a hearing it is respectfully submitted that the Court will enter an Order suppressing all evidence seized from Mr . Padilla at the time of his arrest in Chicago.

The items Padilla is seeking to suppress were seized from him at Chicago's O'Hare airport on May 8, 2002 when he was arrested on a material witness warrant as he disembarked a plane from Switzerland.

Further Evidence Rumsfeld Implicated in War Crimes

Please read this important post by Marty Lederman, Army Confirms: Rumsfeld Authorized Criminal Conduct.

Here's a key section, but there's more:

The Army's charges against Jordan reflect the view, undoubtedly correct, that the use of forced nudity or intimidation with dogs against detainees subject to military control constitutes cruelty and maltreatment that Article 93 makes criminal. It doesn't matter whether they are or are not "torture," as such; nor does it matter whether the armed forces should be permitted to use such interrogation techniques: As things currently stand, they are unlawful, as even the Army now acknowledges.

But then how can we account for the actions of the Secretary of Defense and his close aides?

On November 27, 2002, Pentagon General Counsel William Haynes, following discussions with Deputy Secretary Wolfowitz, General Myers, and Doug Feith, informed the Secretary of Defense that forced nudity and the use of the fear of dogs to induce stress were lawful techniques, and he recommended that they be approved for use at Guantanamo. (The lists of techniques to which Haynes was referring can be found in this memorandum.) On December 2, 2002, Secretary Rumsfeld approved those techniques for use at Guantanamo -- and subsequently those techniques were used on detainee Mohammed al-Qahtani.

In other words, the Secretary of Defense authorized criminal conduct.

...

Today's Army charge under UCMJ Article 93 against Lt. Col. Jordan -- for conduct that the SecDef actually authorized as to some detainees -- demonstrates that Rumsfeld approved of, and encouraged, violations of the criminal law.

Human Rights Watch Links Rumsfeld Directly to Torture

The latest from Human Rights Watch: Defense Secretary Donald Rumsfeld may be criminally liable for torture of a Guantanamo detainee in late 2002 and early 2003. (Incidentally, remember when Rumsfeld lied about this stuff on camera? Maybe it wasn't a slip -- maybe it was conscious cover-up due to a guilty conscience?)

The other day I attended a UM Law School Federalist society meeting at which a nationally respected scholar spoke on the proper role of foreign law in the decisions of the Supreme Court (he doesn't think there is much of any). I went because I've met him, and thought well of his work, but it was a very disappointing talk, far below the standard one would expect of such a serious scholar. One almost suspected him of dumbing it down for the Federalists.

During the talk there were a number of quite amazing claims (e.g. that US would be doing a favor to other countries -- all of them, apparently -- to export its laws to them because ours are better; that the US as world hegemon has the greatest interest in having good law because its law has the widest impact and good laws everywhere are in our interest; that foreign countries' interests have a form of virtual representation in the US due to the presence of emigrant former citizens and their descendants) but surely the low point was the claim that the US does not torture people.

When challenged on it, the visiting scholar said that while there were obviously some low-level people who had acted wrongly, he'd "seen no evidence" that there were any pro-torture policies directed from the top. Although he didn't use the actual words, it was the "few bad apples" theory in all its glory.

As regards the non-CIA torture incidents, if one parsed words carefully to distinguish between mere "cruel inhuman and degrading" conditions on one hand, and "torture" on the other, and if one further accepted the Torture Memos' distinctions that place things like waterboarding outside the definition of torture, in short if one took two rather outlandish things as one's starting point, this "no clear evidence" argument was perhaps a credible position as the actual public evidence of a national torture policy was primarily circumstantial although not unpublicized. (As regards the officially sanctioned CIA torture, prisoner killings (and US 'renditions'), it's much harder for me to see how a reasonable person could make this claim, although these too were not as publicized as they should have been.)

Anyway, maybe this latest Human Rights Watch report will go some ways towards plugging the gap.

More on the ASIL Resolution

Roger Alford has a well-written and informative post describing the process by which the plenary of the American Society of International Law (ASIL) adopted the resolution I blogged about yesterday.

Prof. Alford disapproves, and he gives his reason,

My own view, which clearly is a minority one today but appears to be the traditional view if one looks at the historical sweep, is that the ASIL should avoid passing these resolutions. Such resolutions, while perhaps uncontroversial in content, are nonetheless controversial in their choice of forum and timing.

In this case, the clear implication of the resolution is that these norms are being ignored or violated by the United States. The drafting history of the resolution undeniably underscores this fact. It is in this sense a political resolution directed at the United States, admonishing it for its misconduct. It appears to be the first resolution in the Society's history that relates to broad issues of international compliance with the laws of war and humanitarian law. In the past 100 years, a century in which "mankind experienced some of the most destructive wars of all times," States have transgressed these international obligations on innumerable occasions. And yet the Society only now sees fit to pass such a resolution. One can only help but ask, "Why now?"

If the US makes detention without trial or POW statuts official policy and torture its de facto national policy, something which has not frequently been the case in the past 100 years, then maybe that's an occcasion for the American Society of anything to speak up. Especially if it's something to do with law.

"People Should Obey the Law" is Political. Discuss.

Exactly which of the following statements from yesterday's proposed resolution of the American Society of International Law (ASIL) is political?

1. Resort to armed force is governed by the Charter of the United Nations and other international law (jus ad bellum)
2. Conduct of armed conflict and occupation is governed by the Geneva [Conventions] of August 12, 1949 and other international law (jus in bello)
3. Torture and cruel, inhuman, or degrading treatment of any person in the custody or control of a state are prohibited by international law from which no derogations are permitted.
4. Prolonged, secret, incommunicado detention of any person in the custody or control of a state is prohibited by international law.
5. Standards of international law regarding treatment of persons extend to all branches of national governments, to their agents, and to all combatant forces.
6. In some circumstances, commanders (both military and civilian) are personally responsible under international law for the acts or their subordinates.
7. All states should maintain security and liberty is a manner consistent with their international law obligations.

This is actually pretty tame stuff. Statements 1-6 are pretty standard boilerplate recitations of well-known principles of international law. (For example, I think you would be hard-put to find a teacher of international law in any civilized country who would give a student credit for writing the opposite on a final exam.) Number seven just says that countries should follow the law.

So what is "political"? And if this is "political," what's non-political? Cowed silence in the face of barbarity?

Command Responsibility

Human Rights First today issued Command's Responsibility: Detainee Deaths in US Custody in Iraq and Afghanistan. The report examines how many detainees have died in U.S. custody, including the circumstances of their deaths, and the consequences (or lack thereof) for those involved. The report identifies systemic problems surrounding these deaths, notably inadequate training and guidance, command interference, an egregious failures in investigation and prosecute.

Since August 2002, nearly 100 detainees have died while in the hands of U.S. officials in the global 'war on terror'. According to the U.S. military's own classifications, 34 of these cases are suspected or confirmed homicides; Human Rights First has identified another 11 in which the facts suggest death as a result of physical abuse or harsh conditions of detention. In close to half the deaths Human Rights First surveyed, the cause of death remains officially undetermined or unannounced. Overall, eight people in U.S. custody were tortured to death.

...

Among our key findings:

• Commanders have failed to report deaths of detainees in the custody of their command, reported the deaths only after a period of days and sometimes weeks, or actively interfered in efforts to pursue investigations;

• Investigators have failed to interview key witnesses, collect useable evidence, or maintain evidence that could be used for any subsequent prosecution;

• Record keeping has been inadequate, further undermining chances for effective investigation or appropriate prosecution;

• Overlapping criminal and administrative investigations have compromised chances for accountability;

• Overbroad classification of information and other investigation restrictions have left CIA and Special Forces essentially immune from accountability;

• Agencies have failed to disclose critical information, including the cause or circumstance of death, in close to half the cases examined;

• Effective punishment has been too little and too late.

Command Responsibility is the military doctrine that a "military commander has complete and overall responsibility for all activities within his unit. He alone is responsible for everything his unit does or does not do." This command responsibility does not, however, extend to criminal responsibility unless the commander knowingly participates in the criminal acts of his men or knowingly fails to intervene and prevent the criminal acts of his men when he had the ability to do so.

In the case of the mistreatment of prisoners, the evidence is mounting of direction from the top, followed by coverup. Meanwhile, the greatest punishment meted out to date to any of soldiers who have been prosecuted is....five months in prison.

(If I'm right that this report does not cover either Guantanamo or secret CIA prisons outside Iraq and Afghanistan, then there are likely more deaths waiting to be entered on the ledger.)

More on Mora and the 'Mora Memo'

Further to yesterday's item on Alberto Mora, here are links to Jane Mayer's article in The New Yorker (these links tend to be perishable), and to the full text of the Mora memo. The Mayer article gives great detail of Mora's heroic, but unsuccessful, attempts to prevent Cheney's retainers from dragging us into the muck.

One of the most amazing revelations from the Mayer story is that Mora was part of a working group of DoD lawyers who objected to the torture policy; they were thus removed from the loop. While they thought their objections had stopped the policy going forward, in fact a report approving it was issued in the name of the working group they had been cut out of.

Legal critics within the Administration had been allowed to think that they were engaged in a meaningful process; but their deliberations appeared to have been largely an academic exercise, or, worse, a charade. "It seems that there was a two-track program here,” said Martin Lederman, a former lawyer with the Office of Legal Counsel, who is now a visiting professor at Georgetown. "Otherwise, why would they share the final working-group report with Hill and Miller but not with the lawyers who were its ostensible authors?"

But read the whole Mayer article. Yes, it's amazing how bad things have gotten. Even so, I refuse to be amazed that good people stood up against it -- I'll just be proud.

Senior Navy Lawyer Who Opposed Torture is UM Alum

One of the Pentagon's top civilian lawyers repeatedly challenged the Bush administration's policy on the coercive interrogation of terror suspects, arguing that such practices violated the law, verged on torture and could ultimately expose senior officials to prosecution, a newly disclosed document shows.

"Even if one wanted to authorize the U.S. military to conduct coercive interrogations, as was the case in Guantánamo, how could one do so without profoundly altering its core values and character?" Mr. Mora asked the Pentagon's chief lawyer, William J. Haynes II, according to the memorandum.

Is 'Yoo Recording' A Fake?

Yesterday I quoted from what purports to be a transcript of a debate John Yoo took part in on Dec. 1, organized by the Chicago Foreign Relations Committee, and linked to what purports to be a recording of the talk. The opinions expressed are so crazed that I said, "Let us pray this is a fake." And I meant it.

Perhaps that prayer is being answered. Or perhaps not. I've now heard -- but only second hand -- from an attendee that in fact no such comments were made at the talk. But this debunking is not, I gather, for attribution. So I don't know what is going on.

More info if and as soon as I get it.

Egyptian Fax Leaks Evidence of Secret CIA Prisons In Eastern Europe

Leaked fax 'shows Romania helped CIA interrogators':

An Egyptian government fax intercepted by Swiss intelligence offers the first "real evidence" that the US interrogated suspected terrorists at secret prisons in Eastern Europe, European politicians said yesterday.

The highly-classified fax, purportedly sent late last year by Egypt's foreign minister, Ahmed Aboul Gheit, to its embassy in London, was leaked to a Swiss newspaper on Sunday.

...

Egypt has not confirmed the authenticity of the fax. But MEPs described it as "a hugely significant step" when angry Swiss authorities confirmed the leak was based on a communication intercepted by a top secret surveillance system, known as Onyx.

...

The Romanian defence ministry "categorically" denied the content of the latest leaked Egyptian fax. According to Swiss media, the fax went on: "There are similar interrogation centres in Ukraine, Kosovo, Macedonia and in Bulgaria."

Reductio ad Absurdum

Via the King of Zembla:

Witness the following exchange, from a Dec. 1 debate between [UC Berkeley Professor John Yoo] and Doug Cassel, posted at Revolution Online:

CASSEL: If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?

YOO: No treaty.

CASSEL: Also no law by Congress -- that is what you wrote in the August 2002 memo...

YOO: I think it depends on why the President thinks he needs to do that.

(If you doubt the authenticity of the exchange above, as you must if you are sane, streaming audio may be heard heard here; a longer version, including a six-minute Q&A session, is here.)

Let us pray this is a fake. [UPDATE 1/11/06: It might be.] Meanwhile, seems like a question to ask Alito. Surely he wouldn't say this was something likely to come before the Court? Would he?

CIA Getting Cold Feet on Rendition/Torture?

First there was the NY Times story that "The Bush administration based a crucial prewar assertion about ties between Iraq and Al Qaeda on detailed statements made by a prisoner while in Egyptian custody who later said he had fabricated them" in order to avoid torture. (Robert Waldman notes that this did get reported months ago, although it seems to have gone down the memory hole.)

Now comes a suggestion in the UK's Observer -- sadly, not an utterly reliable source -- that CIA officers are getting cold feet about carrying on with these 'renditions'. But not because they produce false intelligence. No, it's the fear of law suits.

The Observer buried the leed: They start with the Yet Another Torture Allegation (YATA) story that An Ethiopian student who lived in London claims that he was brutally tortured with the involvement of British and US intelligence agencies. It seems that
Mr. Binyam Mohammed, 27,

says he spent nearly three years in the CIA's network of 'black sites'. In Morocco he claims he underwent the strappado torture of being hung for hours from his wrists, and scalpel cuts to his chest and penis and that a CIA officer was a regular interrogator.

Then there's a tie-in the Padilla case:

Western agencies believed that he was part of a plot to buy uranium in Asia, bring it to the US and build a 'dirty bomb' in league with Jose Padilla, a US citizen. Mohammed signed a confession but told his lawyer, Clive Stafford Smith, he had never met Padilla, or anyone in al-Qaeda.

That's interesting. But the really eye-catching part comes next:

A senior US intelligence official told The Observer that the CIA is now in 'deep crisis' following last week's international political storm over the agency's practice of 'extraordinary rendition' - transporting suspects to countries where they face torture. 'The smarter people in the Directorate of Operations [the CIA's clandestine operational arm] know that one day, if they do this stuff, they are going to face indictment,' he said. 'They are simply refusing to participate in these operations, and if they don't have big mortgage or tuition fees to pay they're thinking about trying to resign altogether.'

Could we actually be getting somewhere? And does this explain the nearly-rabid efforts by the Bush administration to keep the CIA exempt from suit for torture and 'cruel, inhuman and degrading' treatment?

But don't get too optimistic: Binyam Mohammed got shipped to Guantanamo in September. UK and US law may not let evidence acquired under torture into court. But, so far that rule is inoperative in Guantanamo.

The Barbarians Manning the Gates

Read Obsidian Wings, Requiem.

Really, please read this, especially the last two thirds or so. It's horrible.

Innocent people -- people the government itself says are innocent -- chained to the floor. Kept out of contact with their families. Denied reading materials in their language. Denied contact with their families. Denied not just contact with counsel, but even when they have lawyers, the lawyers are not told about hearings concerning the client -- not even that the clients have been exonerated. Maybe two years before the fact slinks into open court. And it gets aired only because the court is considering a habeas petition.

When trying to describe the behavior of this administration regarding detainees in Guantanamo and elsewhere, not even Kafka provides us with a vocabulary or a set of categories. Compared to the casual barbarity of this crew, Kafka seems a weak thing, a bloodless amateur.

But not to worry. Americans' tender consciences will henceforth be sheltered from having to face the facts about what this country's government is doing in our name. Thanks to the 'compromise' brokered in the Senate regarding the Graham Amendment the odds are that we need not worry about new habeas motions -- arguably need not even worry about the continued survival of existing habeas motions -- that might produce facts dissonant with our comfortable ideas of the rule of law, minimal due process, or the lower bounds below which US officials could not routinely sink. Show's over folks. Go about your business.

Barbarians are people who break what they don't understand. And the current administration does not understand due process, human rights, or even common minimum decency.

Must the Senate prostate prostrate itself before these barbarians? [unintentional humor there, I'm afraid...]

Was Sen. Graham Intentionally Misleading or Was He Deceived?

Sen. Graham has a reputation as an honorable man, and of the GOP Senators has tended to be one of the better ones on the torture issue, probably due to his experience as an Army JAG officer. That makes his introduction of the Graham Amendment and especially the speech in support of the amendment so very hard to explain.

For a full-bore, devastating, refutation of the claim Sen. Graham made last week citing the danger of litigation abuse in support of his proposal to cut off meaningful judicial review of the conditions at Guantánamo -- arguments that may well have swayed several votes (including his own, if he believed what he was being told) -- see the dramatic deconstruction at Obsidian Wings. In the list that follows the titles are hilzoy's and Katherine's, but the rest is just my summaries of their much fuller and well-supported posts:

• About Them: Setting the scene, outline of Sen. Graham's sensational charges about litigation abuse by detainees.
• Medical Malpractice: Initial attempt to refute Graham's claim of litigation abuse; relies on general facts we know about medical abuse in Guantánamo.
• Medical Malpractice 2: Specific and detailed refutation of Sen. Graham, reporting the actual known facts regarding one of the two cases he himself cited as most supporting his claims: the prisoner claims "as a result of his detention at the U.S. military prison at Guantánamo Bay, he is now confined to a wheelchair with two broken vertebrae. He said military personnel and interrogators stomped on his back, dropped him on the floor and repeatedly forced his neck forward soon after his arrival at the prison." The so-called malpractice claim is that "he has been denied an operation that could save him from permanent paralysis".
• Medical Malpractice 3: Contains further allegations about other prisoners at Guantánamo who were refused basic medical treatment in order to coerce their cooperation, all drawn from a legal brief filed to contest medical mis-treatment. As hilzoy and Katherine note, "bear in mind that none of this information would be available if Graham's amendment had already been in force".
  
• Caught On The Battlefield Sen. Graham argued that one reason to deny judicial review is that detainees are people "caught on the battlefield as the Nazis were caught on the battlefield". This post demonstrates that there is vast and persuasive evidence that a number of the people held in Guantánamo were not caught in even the same country as any battlefield.
• Competent Tribunals: Sen. Graham describes the Guantánamo tribunals as "the Geneva Convention Protections on Steroids". As readers of this blog know, it's no such thing.
• Family Videos: Sen. Graham lampooned the courts for entertaining claims that Guantánamo detainees should be shown "family videos". Here's the actual, and quite horrible, story: Detainees reported that interrogators had previously impersonated defense counsel as a ruse to get detainees to talk to them; as a result the detainees mistrusted their actual lawyers. "The detainees ... asked their lawyers to get videos showing that their families, or people they trusted, approved of these lawyers. The lawyers did so; the resulting DVDs contained less than seventeen minutes of material, combined. ... All of this was done by counsel with security clearances, on equipment they had brought with them from the US". They then submitted these materials to the government, asking that they be cleared so that they could be shown to the detainees, and noting that they would be traveling to Guantánamo in twelve days. ... After various delays (... the government claimed that no one in all of Washington DC was capable of clearing the videos, that therefore they had to be sent to Guantánamo for clearance, and that transporting them would take two weeks), the attorneys were sent a message informing them of two things:
  

  (a) that the videos, etc. might not be cleared by the time they arrived, and
  
  (b) that if, on that visit, the detainees did not agree to be represented by them, the detainees would forfeit their right to counsel."

  It was this Catch-22 which led to the lawsuit.
• More Frivolity: Now With Human Mops! Sen. Graham ridiculed the idea that a detainee "from a family of longstanding al-Qaida ties" and who had thrown a grenade that killed an army medic could be heard to request that his interrogators not use cruel, inhumane, or degrading treatment against him. Sounds awful, right? How about three years of near-solitary confinement (with extra added alleged physical torture) for a child? And here's the detainee's allegation as to his recreational activities:

  He was left in these stress positions for a period of hours, and because he was not allowed to use the washroom, eventually urinated on the floor and upon himself and his clothing. Military police then poured a pine oil solvent onto the floor and onto Petitioner. With Petitioner on his stomach and his hands and feet cuffed together behind his back, they used Petitioner as a human mop, dragging him back and forth through the mixture of urine and pine oil. After he was returned to his cell, Petitioner was not allowed a change of clothes for two days.

If even half this stuff is true, do we really need to ensure that it be allowed to happen without any exterior checks -- which is what will happen if the Graham Amendment closes off judicial review?

Maybe?

KAL in the Economst, this week:

Forbes, today, since TIME doesn't seem to have it online yet:

CIA allegedly hid evidence of detainee torture - report: CIA interrogators apparently tried to cover up the death of an Iraqi 'ghost detainee' who died while being interrogated at Abu Ghraib prison, Time magazine reported today, after obtaining hundreds of pages of documents, including an autopsy report, about the case.

The death of secret detainee Manadel al-Jamadi was ruled a homicide in a Defense Department autopsy, Time reported, adding that documents it recently obtained included photographs of his battered body, which had been kept on ice to keep it from decomposing, apparently to conceal the circumstances of his death.

Steven Clemons Is Shrill (For Good Reason)

Steven Clemons, who managed almost single-handedly to block the Bolton nomination in the Senate without ever getting shrill, has been pushed over the edge into shrillness by the GOP's latest evil, ham-handed, maneuvering:

Republican Majority Leader Bill Frist and House Speaker Dennis Hastert have asked House Intel Committee Chairman Peter Hoekstra and Senate Intel Committee Chairman Pat Roberts NOT to look into the subject of the hidden sites America has for secretly holding prisoners and detainees -- but to look into who LEAKED that information to Dana Priest at the Washington Post.

...

This just makes me sick. Frist still has not learned that the White House has burned him over and over again. And now he is playing their shill once more.

But though I have opposed Frist's general take on the war and these issues for some time -- it's still very difficult for me, just as an American citizen -- to watch any leader, Republican or Democrat, implicitly endorse the notion that America has the right to indefinitely hold without due process any prisoners or detainees in some systemized fashion.

This is what the Soviet Union did. This is what Maoist China did. This is what America fought the Cold War against! Yes, we are fighting and dealing with horribly dangerous people in the world -- but they must be brought to justice in courts of law before American and global peers.

Frist and Hastert have both blighted their careers with this letter. It's outrageous -- and they should immediately retract this effort to lynch leakers rather than holding the Executive Branch accountable for serious infractions of human rights and our legal norms.

I need a new category for this post. Like 'Sickening Irony' or 'Total Lack of Shame' or something.

OK the Soviet Gulag Was Bigger and Worse. Feel Better Now?

In this corner, someone who deeply doesn't get it.

In this corner, Marty Lederman and 120 blog posts.

Read 'em and take your pick.

Establishment (Finally) Speaks Out Against Torture and Inhuman Treatment of Detainees

The Democratic and even a big chunk of the Republican foreign policy establishments are now on record against Cheney's pro-torture policy. The Partnership for a Secure America, a group founded by summer by former Sen. Warren Rudman (R-NH) and former Rep. Lee Hamilton (D-IN), released a statement today that says,

"Cruel, inhuman and degrading treatment of prisoners under American control makes us less safe, violates our nation’s values, damages America’s reputation in the world, and cannot be justified."

Just look at this list of signatories! Howard Baker, Zbigniew Brzezinski and Lawrence Eagleburger are not among the usual suspects for bleeding-heart status...

Warren Rudman US Senator (R-NH) 1980-92

Lee Hamilton US Congressman (D-IN) 1965-99, Vice Chair, 9/11 Commission

Madeleine Albright Secretary of State 1997-2001

Howard Baker US Senator (R-TN) 1967-85

Samuel Berger National Security Advisor 1997- 2001

Zbigniew Brzezinski National Security Advisor 1977-81

Warren Christopher Secretary of State 1993-97

Lawrence Eagleburger Secretary of State 1992-93

Gary Hart US Senator (D-CO) 1975-87

Rita Hauser Chair International Peace Academy 1992-present

Carla Hills US Trade Representative 1989-93

Richard Holbrooke Ambassador to UN 1999-2001

Nancy Kassebaum Baker US Senator (R-KS) 1978-97

Thomas Kean Governor New Jersey 1982-1990, Chairman, 9/11 Commission

Anthony Lake National Security Advisor 1993-97

Robert McFarlane National Security Advisor 1983-85

Donald McHenry Ambassador to UN 1979-81

Sam Nunn US Senator (D-GA) 1972-96

William Perry Secretary of Defense 1994-97

Thomas Pickering Undersecretary of State 1997-2000

Ted Sorenson White House Special Counsel 1961-63

John C. Whitehead Deputy Secretary of State 1985-88

Frank Wisner Undersecretary of Defense 1993-94

Shorter Dick Cheney

Shorter Dick Cheney: We don't torture people but I will fight to the death for our right to do so, because without it we will not be able to, er, fight terrorism.

McCain Relentless

It took him long enough, but when he finally gets going McCain can certainly be tough:

McCain Vows to Add Detainee-Abuse Provision to All Senate Bills: The U.S. Senate added language barring inhumane treatment of enemy combatants to legislation that sets military policy, the second major defense measure the chamber has amended with this provision.

The amendment sponsored by Arizona Republican Senator John McCain passed by a voice vote. It was attached to the Senate's fiscal 2006 defense spending bill Oct. 6 by a vote of 90-9. That bill is being negotiated with members of the U.S. House, including Republicans whose support is in question.

McCain said his intent is to prevent abuses such as those at Abu Ghraib prison in Iraq. He vowed today that his measure would be "on every vehicle that goes through this body'' until it's enacted into law. "It's not going away,'' he said on the Senate floor. "This issue is incredibly harmful to the United States of America and our image throughout the world.''

I still think he'd be an awful President, but this is good stuff.

Torture Corrupts

Today’s torture news:

United States runs a secret network of torture facilities, including some in formerly Communist countries (said on good authority to be Poland, Romania).

A a top-level al-Qaida operative escaped from a maximum-security facility in Afghanistan...and a result can’t be called to testify against the US soldiers who are accused of abusing him.

Excuse me now, I have to go teach students about the rule of law.

McCain's Belated Redemption

I have been very critical of Sen. John McCain in the past (see, for example, Why John McCain Does Not Deserve to be President. Ever.), so it's only right that I should note McCain's (belated) very good deeds on the torture front. Sen. McCain not only sponsored and got overwhelming Senate support for an amendment to ban torture by the United States, but he is also holding fast against numerous administration end-runs to try to water down his amendment in the secretive conference committee [a conference committee reconciles differences between the House and Senate versions of a bill, prior to presenting the revised version to both houses for re-passage]. The administration, headed by VP Cheney, wants the bill changed so that it only applies to the military; the result would be to allow (or, perhaps, to continue to allow) the CIA to torture people; McCain is pushing back. (See, e.g. Truth About Torture).

It remains unclear what will emerge from the conference. A majority of the House and a large majority of the Senate support McCain's amendment, but the conferees are stacked with people who are keen to support the administration's position. We'll see if they dare. The insiders I hear from are sounding very pessimistic.

Judge Orders Release of Abu Ghraib Abuse Photos

In a lengthy, detailed, and at times passionate opinion, Judge Alvin K. Hellerstein, U.S. Army, JAG Corps, 1957-1960, has ruled that the government must release photos taken by one of the US guards at Iraq's Abu Ghraib prison. The pictures show gross abuse of the detainees.

The government had two main arguments against releasing the photos. The first was that the release would violate the Geneva Convention. The judge made short work of that.

The second was that the release might endanger our troops, by inflaming public opinion in the Arab Muslim world. Here, minus citations, is what the court said to that:

The government argues that the terrorists will use the re-publication of the photographs as a pretext for further acts of terrorism. Plaintiffs, on the other hand, provide the declaration of a scholar on the Middle East who states that, in his opinion, "there is nothing peculiar about Muslim culture in Iraq or elsewhere that would make people react to these pictures in a way different from other people's reactions elsewhere in the world." In addition, Professor Famhy suggests that there is a large group of Iraqis, and of Muslims generally, who respond favorably when we show the openness of our society and the accountability of our government officials, and that we would suppress those values and that favorable response by preventing the publication of the Darby photographs.

Our nation does not surrender to blackmail, and fear of blackmail is not a legally sufficient argument to prevent us from performing a statutory command. ...

...


The terrorists in Iraq and Afghanistan do not need pretexts for their barbarism; they have proven to be aggressive and pernicious in their choice of targets and tactics. ... [M]y task is not to defer to our worst fears, but to interpret and apply the law, in this case the Freedom of Information Act, which advances values important to our society, transparency and accountability in government.

...

The interests at stake arises from pictures of flagrantly improper conduct by American soldiers--forcing prisoners under their charge to pose in a manner that compromised their humanity and dignity. ... the pictures are the best evidence of what happened, better than words, which might fail to describe, or summaries, which might err in their attempt to generalize and abbreviate. Publication of the photographs is central to the purposes of FOIA because they initiate debate, not only about the improper and unlawful conduct of American soldiers, "rogue" soldiers, as they have been characterized, but also about other important questions as well-- for example, the command structure that failed to exercise discipline over the troops, and the persons in that command structure whose failures in exercising supervision may make them culpable along with the soldiers who were court-martialed for perpetrating the wrongs; the poor training that did not create patterns of proper behavior and that failed to teach or distinguish between conduct that was proper and improper; the regulations and orders that governed the conduct of military forces engaged in guarding prisoners; the treatment of prisoners in other areas and places of detention; and other related questions.

Suppression of information is the surest way to cause its significance to grow and persist. Clarity and openness are the best antidotes, either to dispel criticism if not merited or, if merited, to correct such errors as may be found. The fight to extend freedom has never been easy, and we are once again challenged, in Iraq and Afghanistan, by terrorists who engage in violence to intimidate our will and to force us to retreat. Our struggle to prevail must be without sacrificing the transparency and accountability of government and military officials. These are the values FOIA was intended to advance, and they are at the very heart of the values for which we fight in Afghanistan and Iraq. There is a risk that the enemy will seize upon the publicity of the photographs and seek to use such publicity as a pretext for enlistments and violent acts. But the education and debate that such publicity will foster will strengthen our purpose and, by enabling such deficiencies as may be perceived to be debated and corrected, show our strength as a vibrant and functioning democracy to be emulated.

In its most recent discussion of FOIA, the Supreme Court commented that "FOIA is often explained as a means for citizens to know what 'their Government is up to.' The sentiment is far from a convenient formalism. It defines a structural necessity in a real democracy." As President Bush said, we fight to spread freedom so the freedoms of Americans will be made more secure. It is in compliance with these principles, enunciated by both the President and the highest court in the land, that I order the government to produce the Darby photograph that I have determined are responsive and appropriately redacted.

Why John McCain Does Not Deserve to be President. Ever.

In the wake of Yet Another Torture Allegation (YATA), this time that soldiers in the 82nd Airborne were torturing Iraqis for the fun of it (and -- more seriously -- that senior officers refused to investigate when put on notice by a junior officer) Senator John McCain, himself a victim of vicious torture at the hands of the North Vietnamese, a conservative Republican Senator with unique moral authority to speak out against this evil, and a man who so far has said remarkably little on the subject, speaks.

And pretty much all he can bring himself to say is Prisoner Abuse Hurts U.S. Image:

Sen. John McCain said Sunday that abuse of Iraqi prisoners by U.S. soldiers, alleged anew in a report and under investigation again by the Army, is hurting the nation's image abroad.

"We've got to make it clear to the world that American doesn't do it. It's not about prisoners. It's about us," he said.

McCain is a co-author of a bill that seeks to put greater limits on torture by our armed forces, but carefully avoids making the prohibition apply to the CIA's world-wide torture centers, and also fails to address the CIA's organized complicity with foreign torturers.

McCain's near-silence on this issue is highly likely to be related to his Presidential ambitions in 2008 -- ambitions that would be severely damaged by seeming to undercut a GOP president on a military issue, not to mention any hint of being "soft on terror".

It is hard to accuse a man who obviously displayed great physical and moral courage as a young man of being a moral coward now that he's considerably older. But there it is.

This man does not deserve to be President.

Neither, of course, does the current occupant of the White House. That man is not only presiding over this moral atrocity, but also over the conversion of the doctrine of military command responsibility into a doctrine of corporate responsibility diffusion in which executives seek personal deniability while assuring themselves that no one is to blame.

"Occam's Razor? Never heard of it"

This cartoon by Tom Tomorrow explains how to reason properly about torture.

What Does It Take To Fire a 4-Star General

We know that four-star generals — or indeed any general officers other than one female reservist who claims to be a scapegoat — do not get disciplined, much less cashiered, over little things like presiding over very substantial quantities of torture by their subordinates. (We used to claim to adhere to command responsibility, so one would have accepted responsibility to flow upwards, not curdle down at the level of NCOs.)

One could even be forgiven for thinking that if having your troops stringing prisoners up with mock electrodes or beating them to death in sleeping bags wasn't the sort of thing that got a general in trouble, nothing would.

Well, it seems there is something. Some unspecified “personal misconduct,” that can get a 4-Star General Dismissed.

What could it be? Fiddling the accounts, or sleeping with the wrong person perhaps. But not torture, even if he did run the Army Training and Doctrine Command. We don't go after ranking officers for that—got to save something for the war crimes tribunals.

Update: Yup. The Washington post reports that the great crime was “an extramarital affair with a civilian.”

The Army has been hurt over the past year by detainee-abuse cases and has been accused of not going after top officers allegedly involved in such abuse. Army officials said relieving Byrnes was meant to show the public that the service takes issues of integrity seriously.

“We all swear to serve by the highest ideals, and no matter what rank, when you violate them, you are dealt with appropriately,” said one Army officer familiar with the case.

Fafblog Boils It Down to the Essentials

After a fallow period, Fafblog! is back in full fettle:

All of us love freedom, and all of us want to protect freedom, and surely to protect freedom it was necessary to tie Abed Hamed Mowhoush in a sleeping bag and an electrical cord, and surely to secure our basic liberties it was essential to beat him with a club and a length of rubber hose, and certainly it was vital to the preservation of our way of life to bludgeon him to death over a period of days in an interrogation room, just as it is critical to keep these and other methods of torture legal at all costs. But why, if the deed was just - and it can't not have been just - did the Army and the CIA cover up the murder, classify the autopsy, put out a whitewashed account for the press? Why do they continue to deny to this day what we know to be true, what the president's actions defend as the truth: that torture is the official policy of the United States?

Is it some foul act of self-sabotage or some perverse modesty that causes the Pentagon, the CIA and the White House to cravenly hide behind their underlings instead of triumphantly claiming the 2005 Golden Mengele for themselves? Whatever the explanation, George Bush and his administration are shortchanging themselves and the millions of Americans who deserve to know exactly how these men have been proudly protecting and defending their values. Don't be shy, gentlemen, Mr. Secretary, Mr. President. These corpses are all yours.

Another Soldier Who Deserves a Medal

More information about how the torture-murder of Iraqi Gen. Mowhoush came to light -- and the context in which it ocurred. Utah GI exposed abuses at prison. His reports were brushed off until fellow Utahn stepped in:

The Army captain appeared confused. "You're using 'sledgehammer' figuratively?" he asked the enlisted soldier sitting before him.

"No sir," the soldier replied, lifting his hands about 15 inches apart. "The handle of a sledgehammer, about this big . . . to assault the detainees with."

For Sgt. 1st Class Michael Pratt it would have been far easier to look away.

More uglies from the story:

A soldier with a squeaky-clean record and reputation during his 18 years in the Utah National Guard, Pratt was apparently unprepared for what he found in his first few months with some of the regular Army soldiers of the 3rd Cavalry.

Among the allegations made in his testimony: That he had witnessed a soldier shoot a 14-year-old boy in the back during a raid - as the boy was running away. That matter, he claimed, was never thoroughly investigated, though fellow soldiers assured him that the rules of engagement had been followed when the teen was shot.

Later, when he learned that unqualified soldiers were conducting interrogations, Pratt again logged a compliant. In response, he testified, he was investigated - and told by other soldiers it was for blackmail purposes.

The final blow came when Pratt reported that a group of combat engineers had confiscated a large stash of currency from an Iraqi family who intended to use the money to send their daughter to Jordan for an operation. When he reported the matter to an officer in his chain of command, Pratt said, "he told me I was getting too close to the Iraqis. He accused me of losing my objectivity."

"After that incident," Pratt said. "I realized that it was pointless to report anything."

Though aware that detainees were often stuffed into lockers, wrapped with blankets and electric cords - and, Pratt alleged, sometimes beaten with a sledgehammer handle - he didn't seek an investigation.

Today's Essential Marty Lederman

Marty Lederman gives a full, and quite sickening, analysis of the legal and political context of the Iraqi torture-murder story I noted below.

This administration is not only morally bankrupt, it has soiled the military, which had, I thought, rebuilt its honor after the then-nadir of Vietnam. Official torture and murder with the connivance or malign neglect of higher-ups is almost as bad as governments get, short of genocide.

Details of How Soldiers and CIA Operative Tortured Captive to Death

Documents Tell of Brutal Improvisation by GIs: they put an Iraqi Major General into a sleeping bag, wrapped him in electrical cord, and beat him until he died.

Two of the soldiers--enlisted men--are being tried for murder. (Their lawyer says that they shouldn't be blamed as it was days of earlier torture--hitting the detainee with fists, a club and a length of rubber hose--that did him in.) The CIA's role is being suppressed from the public accounts; there is no word as to whether the CIA's operative will be prosecuted, although the "The CIA inspector general's office has launched an investigation".

An indicted soldier's lawyer, not an unbiased source, is quoted by the Post as saying,

"The interrogation techniques were known and were approved of by the upper echelons of command of the 3rd ACR," ... "They believed, and still do, that they were appropriate and proper."

More Like an Orchard

The 'few bad apples' canard took another blow today with the revelation that, Abu Ghraib Dog Tactics Came From Guantanamo.

JAG Memos Revealed

Marty Lederman has an important post about the torture scandal, The Heroes of the Pentagon's Interrogation Scandal -- Finally, the JAG Memos. As Marty says, "These memos reveal the JAGs as the real heroes of this story."

The memos are extraordinary. They are written by JAGs from the Air Force, Navy, Army and Marines. As Senator Graham put it on Monday, these folks "are not from the ACLU. These are not from people who are soft on terrorism, who want to coddle foreign terrorists. These are all professional military lawyers who have dedicated their lives, with 20-plus year careers, to serving the men and women in uniform and protecting their Nation. They were giving a warning shot across the bow of the policymakers that there are certain corners you cannot afford to cut because you will wind up meeting yourself."

It is fair to say that these accounts reflected sustained, uniform and passionate opposition to the OLC legal theories that were being foisted upon the military. Indeed, the tone of the memos is one of barely concealed incredulity, and outrage--disbelief--that a young legal academic from DOJ could sweep right in and so quickly overturn decades of carefully wrought military policy, using legal analysis that almost certainly would not withstand scrutiny outside the Administration and around the world. ...

In particular, these memos eloquently warn of the grave harms that could result from such a radical shift in policies and legal understandings--harms not only to the prospects for nation's efforts to stop terrorism, but also to military interrogators and officers who could face domestic and international prosecution for engaging in such conduct, and, most importantly, to U.S. forces who are themselves detained in this and future conflicts.

He's also got the text of six key JAG memos. Essential reading.

Elizabeth Holtzman on Torture and Accountability

The Nation carries a very thoughtful article by former Congressperson Elizabeth Holtzman on Torture and Accountability [fixed, thanks!], i.e. how one might get some of the latter for the former. Recommended.

Outsourcing Anti-Torture

Want to participate in the fight against US-sponsored torture but don't have the time, the skills, or a clear idea where to begin? Consider a donation to one of these groups:

• Human Rights Watch
• Human Rights First (formerly the Lawyers Committee for Human Rights)
• Amnesty International
• Center for Constitutional Rights
• American Civil Liberties Union

I'd welcome suggestions for additions to this list.

Torture Nation

I'm finding it increasingly difficult to blog about torture. The situation is so appalling, and the level of public interest seems so low.

Stories like this one do not help.

51 Congressman Call for War Crimes Investigation

Congressman John Conyers has sent a letter (cosigned by 50 Congresspersons) to the Attorney General calling for a special prosecutor to investigate claims that the U.S. has violated the War Crimes Act at secret detention facilities in Iraq, Afghanistan and Guantanamo Bay. Source: Raw Story

What chance is there that AG Gonzales, who bears some of the guilt, will approve this request? How small can you count?

Full text of letter below. (Although the Raw Story version seems to be missing some footnotes?) Kudos to all signers.

May 12, 2005

The Honorable Alberto R. Gonzales
Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530

Dear Mr. Attorney General:

We are writing to request that you appoint a special counsel to investigate whether high-ranking officials within the Bush Administration violated the War Crimes Act, 18 U.S.C. 2441, or the Anti-Torture Act, 18 U.S.C. 2340 by allowing the use of torture techniques banned by domestic and international law at recognized and secret detention sites in Iraq, Afghanistan Guantanamo Bay and elsewhere.

One year and 10 investigations after we first learned about the atrocities committed at Abu Ghraib, there has yet to be a comprehensive, neutral and objective investigation with prosecutorial authority of who is ultimately responsible for the abuses there and elsewhere. While more than 130 low-ranking officers and enlisted soldiers have been disciplined or face courts-martial for the abuses that occurred, there have been no criminal charges against high-ranking officials. Yet the pattern of abuse across several countries did not result from the acts of individual soldiers who broke the rules. It resulted from decisions made by senior U.S. officials to bend, ignore, or cast rules aside. If the United States is to wipe away the stain of Abu Ghraib, it needs to investigate those at the top who ordered or condoned torture. As a result, it is in our interest to finally show the world that we are taking these matters seriously and resolving them free of political taint.

Some of us previously asked Attorney General Ashcroft to appoint a special counsel to investigate these abuses on May 20, 2004. Unfortunately, we received no answer to our request. The need for a special counsel is now more important than ever as the Administration and military have repeatedly exonerated high-ranking officials, or declined to even investigate their actions, even as other official investigations linked the policy decisions by these officials to the crimes that occurred at Abu Ghraib. The Administration's haphazard and disjointed approach to these investigations appears to have insulated those in command and prevented a full account of the actions and abuses from being determined.

As you know, under Department of Justice regulations, the Attorney General must appoint a special counsel when (1) a “criminal investigation of a person or matter is warranted,” (2) the investigation “by a United States Attorney Office or litigating Division of the Department of Justice would present a conflict of interest for the Department,” and (3) “it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.”1 In the present case, all three requirements have been met.

First, federal criminal laws are clearly implicated. The Anti-Torture Act criminalizes acts of torture - including attempts to commit torture and conspiracy to commit an act of torture - occurring outside the United States' territorial jurisdiction regardless of the citizenship of the perpetrator or victim.2 The Geneva Conventions generally prohibit “violence to life and persons,” “outrages upon personal dignity,” and “humiliating and degrading treatment.”3 Violations of the Geneva Conventions also constitute a violation of U.S. federal criminal law under the War Crimes Act.4 The Administration has acknowledged on several occasions that the United States is bound by the Geneva Conventions with respect to Iraqi5 and Taliban prisoners,6 and that a violation of the Conventions would invite prosecution under the War Crimes Act.7 Numerous investigations have uncovered such violations. The Taguba report found instances of “sadistic, blatant and wanton criminal abuses” of prisoners.8 The Army's Inspector General's report found 94 incidents of detainee abuse at detention sites in Afghanistan and Iraq.9 And, the Schlesinger report confirmed five instances in which detainees died as a result of abuse by U.S. personnel during interrogations.10 The repudiation of the August 2002 memorandum you wrote as White House Counsel in December of 2004 suggests even the Administration realizes its policies contributed to actions which violated federal criminal law.11

Therefore, given the Administration's concession that the Geneva Conventions apply to Iraqi and Taliban prisoners, given its concession in the Gonzalez memo that a violation of the Conventions would also constitute a violation of federal criminal law, and given the flagrant violations of the Conventions in Iraq, Afghanistan, and Guantanamo Bay which have been confirmed by official investigations, it is clear that a prima facie violation of federal criminal law exists. It is also evident that high-ranking Administration officials, including the Defense Secretary, as well as high-ranking military officials, may have authorized these actions and are potentially subject to criminal prosecution as well.

Second, there is an obvious conflict of interest. A special counsel is necessary not only because high-ranking Administration officials, including Cabinet members, are implicated, but also because you personally, and the Department of Justice generally, may have participated in this conspiracy to violate the War Crimes Act. It has been confirmed that the Department of Justice's Office of Legal Counsel, and you yourself as White House Counsel, encouraged the president to withhold Geneva Convention protections from Afghanistan and Guantanamo Bay detainees. If the conflict of interest provisions in your regulations mean anything, it is that when the Attorney General may have contributed to the abuses that were committed, the Department of Justice has no business conducting the investigation and should instead turn to a special counsel.

Finally, there can be no doubt that the public interest will be served by a broad and independent investigation into both the allegations of abuse at U.S. detention sites as well as the role of high-ranking officials in authorizing and allowing these abuses. To date, a number of investigations into allegations of abuse at United States detention sites have been conducted, including ten official investigations. These investigations concluded that the leadership failure of officers such as Lt. Gen. Ricardo Sanchez, formerly the senior commander in Iraq, contributed to the prisoner abuse.

For example, the Army Inspector General and former Defense Secretary James Schlesinger found in separate reports that the policies issued by Lt. Gen. Sanchez and his subsequent actions once the abuses at Abu Ghraib were known contributed to the perpetration of these abuses. The Schlesinger investigation also found that other top military officials were responsible, concluding, “There is both institutional and personal responsibility at higher levels.”12 Similarly, the Kern-Fay-Jones report concluded that the actions of Sanchez and his most senior deputies, such as Maj. Gen. Walter Wojdakowski, “did indirectly contribute” to some abuses.13 However, these inquiries were not empowered to impose punishments on those it found culpable, and they were not empowered to examine the role of high-ranking officials, including members of the Administration, in the perpetuation of these abuses.14 And, in spite of these findings, many of the reports refused to hold these high-ranking officials culpable. In fact, we recently learned the Army absolved four top officers, including Lt. Gen. Sanchez, of wrongdoing. To date, only one high-ranking military officer has been punished as a result of these inquiries, and many view her punishment as a mere slap on the wrist. As a result, it is not yet clear to the world that the United States is taking these abuses seriously.

The public interest demands we determine who is ultimately responsible for these abuses. While Private Lynndie England and other low-ranking officers have pled guilty, those who ordered and authorized their actions appear to have been protected by the military and this Administration. Because so many high level officials, including you, have been implicated in these events, the only way to ensure impartiality is through the appointment of a Special Counsel. Indeed, our nation's integrity is at stake. We must reassure the world that we will fairly and independently pursue legal violations wherever they occur.

We await your response on this important matter. At no point during this Administration has a Special Counsel been appointed.15 Please contact us through Perry Apelbaum or Ted Kalo of the Judiciary Staff at 2142 Rayburn House Office Building, Washington, DC 20515 if you have any questions about this request.

Sincerely,

1. Rep. Tammy Baldwin
2. Rep. Sanford Bishop
3. Rep. Earl Blumenauer
4. Rep. Corrine Brown
5. Rep. Julia Carson
6. Rep. John Conyers
7. Rep. Elijah Cummings
8. Rep. A. Davis
9. Rep. S. Davis
10. Rep. Diana DeGette
11. Rep. Anna Eshoo
12. Rep. Barney Frank
13. Rep. Raul Grijalva
14. Rep. Luis Guitierrez
15. Rep. Maurice Hinchey
16. Rep. Michael Honda
17. Rep. Sheila Jackson Lee
18. Rep. Ron Kind
19. Rep. Dennis Kucinich
20. Rep. Barbara Lee
21. Rep. Zoe Lofgren
22. Rep. Carolyn Maloney
23. Rep. Betty McCollum
24. Rep. Jim McDermott
25. Rep. James McGovern
26. Rep. Gregory Meeks
27. Rep. James Moran
28. Rep. Jerrold Nadler
29. Rep. James Oberstar
30. Rep. John Olver
31. Rep. Frank Pallone
32. Rep. Donald Payne
33. Rep. Tom Price
34. Rep. Martin Sabo
35. Rep. Linda Sanchez
36. Rep. Bernard Sanders
37. Rep. Janice Schakowsky
38. Rep. Bobby Scott
39. Rep. Jose Serrano
40. Rep. Louise Slaughter
41. Rep. Hilda Solis
42. Rep. Fortney Stark
43. Rep. Ellen Tauscher
44. Rep. Mark Udall
45. Rep. Chris VanHollen
46. Rep. Maxine Waters
47. Rep. Diane Watson
48. Rep. Melvin Watt
49. Rep. Robert Wexler
50. Rep. Lynn Woolsey
51. Rep. David Wu

So Much for the Third Degree

That Al-Queda #3 man captured the other day? He's enjoying the gentle ministrations of the Pakistani intelligence services. But the interrogation, allegedly, isn't going that well:

Intelligence officials who have been questioning Abu Faraj al-Libbi, the senior al-Qa'eda suspect arrested last week, have cast doubt over claims by the Pakistani prime minister, Shaukat Aziz, that the interrogation is “proceeding well”.

The officials say that al-Libbi, who is believed to be al-Qaeda's number three, has defied efforts to make him reveal valuable intelligence about its senior hierarchy, despite coming under “physical pressure” to do so.

More than a dozen low-key al-Qa'eda targets were arrested in Pakistan last week thanks to information stored on al-Libbi's satellite telephone. Yet early hopes among both American and Pakistani intelligence officials that he would tell them the whereabouts of Osama bin Laden and his deputy, Ayman al-Zawihiri, were dashed.

One senior intelligence official told The Telegraph: “So far he has not told us anything solid that could lead to the high-value targets. It is too early to judge whether he is a hard nut to crack, or simply that he doesn't know more than he has told us.”

Al-Libbi had been beaten and injected with the so-called “truth drug”, sodium pentothal, said the official. “They have tried all possible methods, from the 'third degree' to injecting him with a truth serum but it is hard to break him,” he said.

I have to say “allegedly” because this is the sort of disinformation you'd expect an on-the-ball intelligence agency to spread if the guy had in fact spilled his guts.

Torture Is a Sign of Incompetence

I am not primarily interested in utilitarian arguments about torture. My arguments on the subject have tended to be moral and legal. And, I do not believe that either would be altered by the discovery that torture was an effective means of interrogating prisoners.

Nevertheless, there are a lot of well-intentioned utilitarians out there, and some may be concerned that were it to stop torturing its prisoners the CIA might somehow miss out on a valuable interrogation technique. Well, rest easy: The current issue of The Atlantic has an article by Stephen Budiansky that eloquently confirms that being nice is a much more effective means of Truth Extraction. But we knew that.

The Triumph of NewSpeak

We are now so deep into the era of Newspeak that otherwise sensible New York Times journalists can pen stuff like what follows without blinking. And editors run it. On page 23, which puts it one page ahead of the story that some woman who ran off because she couldn't face her wedding was not in fact murdered by the fiancé the left behind.

Inquiry Finds Abuses at Guantánamo Bay: A high-level military investigation into accusations of detainee abuse at Guantánamo Bay, Cuba, has concluded that several prisoners were mistreated or humiliated, perhaps illegally, as a result of efforts to devise innovative methods to gain information, senior military and Pentagon officials say.

Perhaps illegally! Perhaps!

The F.B.I. agents wrote in memorandums that were never meant to be disclosed publicly that they had seen female interrogators forcibly squeeze male prisoners' genitals, and that they had witnessed other detainees stripped and shackled low to the floor for many hours.

Perhaps illegally? Do we presume the FBI would lie about being an eyewitness to this? Or is there some theory in why the forcible squeezing of a prisoner's, whether POW or not, genitals – regardless of the gender of the abuser — is now arguably legal?

… A senior Pentagon official, who spoke on condition of anonymity because the report has not been completed, said that the inquiry centered on what procedures were used at Guantánamo and why interrogators thought they were acceptable. The official said there was no evidence of physical mistreatment, but investigators were examining whether interrogators improperly humiliated prisoners or used psychological abuse.

There they go again “no evidence of physical mistreatment”? What's a series of FBI reports? Chopped liver?

The Pentagon official said that the Schmidt report found that some interrogators devised plans that they thought were legal and proper, but in hindsight and with some clearer judgment might have been found to violate permissible standards.

Just how much “hindsight and clearer judgment” does it take to figure out that having “female interrogators forcibly squeeze male prisoners' genitals” is not “legal and proper”? Just asking.

“People determined which interrogation technique they would use, made interrogation plans and wrote them out,” the Pentagon official said. “In retrospect, however, how they applied those judgments to a particular technique is what one might want to question.”

That sort of equivocation rings a bell.

The war “did not turn in Japan's favor, and trends of the world were not advantageous to us.”

— Emperor Hirohito, Aug. 15, 1945

A Publicly Displayable Level of Venom

Phil Carter, over at Intel Dump, has penned a remarkably even-tempered (if ultimately condemning) response to the whitewash over command responsibility at Abu Gh'raib. In his first update, he concludes:

Despite these generals' findings, none of the officers responsible for facilitating these abuses will face criminal charges. Or, put another way, the Army IG has wholly disregarded the record evidence before him to arrive at an arbitrary and capricious decision that the senior Army leaders involved should face no legal consequences for their actions. What kind of message does that send to our junior military leaders? What kind of message does that send to the world?

This is a lot more generous than I would have been. It's taken me three days to keep the venom in this message to a publicly displayable level.

The IG's report presents a truly disturbing contrast with other recent international-law and law-of-war activities, particularly including the ongoing trial of Slobodan Milosevic. Milosevic can at least rationalize (although not justify) that he was participating in a centuries-long struggle between ethnic groups. In turn, this leads to an even more cynical view of the US refusal to participate in the ICJ. What this really says, more than anything else, is that our whitewashes are morally and ethically acceptable, but nobody else's are, and most particularly that anyone else who ever questions the results of our disciplinary process (or the lack thereof) has no right to do so—primarily because they're not 'murikans. There are more horrible historical examples of the consequences of this attitude than I can begin to name. For our purposes today, perhaps the most apt—and, given the new Pope, most subversive—example is the Spanish Inquisition, which was funded by confiscation of the property of those who “assisted it with certain inquiries.”

When I resigned my commission, I stated that “I have lost confidence in the senior military and civilian leadership of the Air Force; I believe that my oath of commissioning requires me to tender my resignation in these circumstances.” This is precisely the kind of nonsense that had led me to lose confidence in the leadership. And, sad to say, the other services are worse… as the Army has just demonstrated. The message sent by the IG's whitewash is precisely that sent by the Calley/Medina fiascos. After a pretty thorough examination of the relevant files, I do not believe that either Calley or Medina should have been acquitted by court-martial; they were both guilty of war crimes. The Army, however, essentially cut off the inquiry for command responsibility at the company commander, despite clear evidence that the operations order came from battalion (and possibly brigade) authority. Of course, both of those commanders were by then dead, and perhaps a court-martial of their staffs would have had serious evidentiary problems. There is no such reason to allow dereliction of this nature to escape even a probable-cause hearing under Article 31 for Abu Gh'raib.

Of course, part of the problem comes from the White House, in its cramped and inexcusable effort to classify what previous reports have amply demonstrated occurred over there as not unlawful. Just because the civilian leadership has been derelict in the performance of its duty, though, does not excuse military dereliction. The officer corps is supposed to take care of its own problems… regardless of rank.

YATA: US Taking Hostages!?!

YATA: Allegedly, the US takes hostages, which is a no-brainer violation of the Geneva convention, and basic decency. (Via Jim Henley.)

I should note, however, that while I think highly of Henley, I’m unfamiliar with the news organization that he linked to and which propagated this report.

YATA (Omar Deghayes)

Yet Another Torture Allegation: US guards at Guantanamo tortured me, says UK man:

A British resident has claimed he was tortured by US guards at Guantanamo Bay, suffering violent sexual assaults, near drowning and an attack in which he was blinded.

The Independent on Sunday has been given a detailed account from Omar Deghayes of repeated abuse by American and Pakistani interrogators over the past three years including electric shocks and sodomy by US guards.

The allegations, made by human rights lawyer Clive Stafford Smith, have persuaded British ministers to take up Mr Deghayes's case.

In some of the most disturbing allegations to emerge from Guantanamo, Mr Deghayes also accuses US and Pakistani interrogators of beating him repeatedly since his arrest three years ago, smearing his face with human excrement, starving him of food, and withdrawing light and clothing.

I've left out the gory details, but they're there in the Independent if you want them.

Mr Deghayes's testimony was recorded during more than 20 hours of interviews by his US attorney, Clive Stafford Smith, in a Guantanamo Bay cell in January and March this year, and has only recently been cleared by US Department of Justice censors.

Mr Stafford Smith said he found Mr Deghayes's testimony “totally credible”. He added: “He has been treated worse in Guantanamo than any other person I have come across. He is legally trained and tries to help other people there, so the Americans think he's a trouble-maker. Consequently, he's suffered for it.”

The claims are understood to have shocked the Foreign Office minister Baroness Symons, and played a major part in the Government's decision to directly intervene in the cases of five British residents still held at Guantanamo Bay. Until now, the UK has refused to intervene.

…

Mr Deghayes's case has alarmed human rights lawyers because the US has allowed Libyan intelligence officers to interrogate him in Cuba - even though he is a refugee from Col Gaddafi's regime.

Mr Stafford Smith said they could now “conclusively prove” that Mr Deghayes was the victim of mistaken identity. They had established that video footage allegedly showing him in Chechnya was of another man, who is now dead. Mr Deghayes had never been to Chechnya, the lawyer insisted.

Mr Deghayes was seized in the Pakistani city of Lahore in April 2002 by armed local intelligence officers, and alleges he was immediately subjected to repeated torture, threats against his wife and children, and violent assaults by his captors.

He claims the Pakistani interrogators told him they were holding him at US request, and insisted they had no interest in him. He claimed: “I underwent systematic beatings every night for three days. Each time, when I was nearly unconscious, I would be thrown back into the cell to await more.”

Oh, and there's lots more after that.

So Much For 'Command Responsibility' (Army clears Gen. Sanchez)

No one important is responsible. Got that?

Army Clears Top Abu Ghraib Case Officers: The Army has cleared four top officers - including the three-star general who commanded all U.S. forces in Iraq - of all allegations of wrongdoing in connection with prisoner abuse at Abu Ghraib, officials said Friday. …

After assessing the allegations against Sanchez and taking sworn statements from 37 people involved in Iraq, the Army's inspector general, Lt. Gen. Stanley E. Green, concluded that the allegations were unsubstantiated, said the officials who were familiar with the details of Green's probe.

Green reached the same conclusion in the cases of two generals and a colonel who worked for Sanchez.

Strange, because the circumstantial evidence didn't look at all good for Sanchez. Which seemd to explain why he was the first guy sent out to 'investigate' (read, 'keep a lid on it').

So the official line remains: just a few (dozen, hundred) widely dispersed low-ranking bad apples in several locations who were encouraged by email from Washington to do the same things. None of whom ranked above sergeant, except maybe one female scapegoat reservist general, who says her orders came from … Sanchez.

[Update: Last link added 4/23]

Congress Enjoys the "Sgt. Schultz" Defense

How is it that the Administration can flout a law that requires it to tell all the members of the Intelligence Committee what it is up to? According to White House Has Tightly Restricted Oversight of C.I.A. Detentions, that's what it's doing.

The White House is maintaining extraordinary restrictions on information about the detention of high-level terror suspects, permitting only a small number of members of Congress to be briefed on how and where the prisoners are being held and interrogated, senior government officials say.

Some Democratic members of Congress say the restrictions are impeding effective oversight of the secret program, which is run by the Central Intelligence Agency and is believed to involve the detention of about three dozen senior Qaeda leaders at secret sites around the world.

By law, the White House is required to notify the House and Senate Intelligence Committees of all intelligence-gathering activities. But the White House has taken the stance that the secret detention program is too sensitive to be described to any members other than the top Republican and Democrat on each panel.

My first reaction was, 'these people don't care at all about the law.'

My second reaction was, 'Congress could force disclosure if it wanted to. The problem here is that Congress is being supine.'

To date, Congress has not opened any inquiry or held hearings on the C.I.A.'s detention program, despite indications that agency personnel were involved in abuses of some prisoners. That record is in contrast to the public scrutiny that the Congressional armed services committees have imposed on the military's involvement in interrogation and detention, including the abuses at Abu Ghraib prison in Iraq.

Yup, pretty supine.

But then there's a third reaction, and that one is if anything worse than the first two: Congress doesn't want to know. Could it be that lots of Senators — especially the Republicans who, were they guilty with knowledge might have to take part in internecine warfare — are secretly grateful to have the secrets kept away?

[Plus, on close reading, call it a fourth reaction, the NYT article is a little ambiguous as to whether the Admnistration is flouting the law overtly, or just abusing the classification system. And it being late, I haven't the energy to research it right now.]

Pentagon Issues Broad Definition of 'Enemy Combatant'

The Pentagon has released a document called Joint Doctrine for Detainee Operations. There's a lot there and I haven't digested it all. Three things jump out at me.

First, this document has been in the works for a year. What were they doing before then? What took so long once they started?

Second, as more fully described below, the document sets out a new and very broad definition of who is an “enemy combatant” — the class of persons the Administration claims are outside the protection of the Geneva Convention system, being neither soldier nor civilian (a better reading of the GC system, I'd argue, is that everyone is one or the other). According to the new definition, anyone who is a “affiliated” (what's that mean?) with a group listed under Executive Order 13224 [i.e. in theory any group identified by Presidential order!] is a potential enemy combatant. That sweeps very broadly indeed.

Third, the document is redolent with exhortations that everyone is to be treated humanely, even Enemy Combatants. And it sets out detailed rules as to how captured persons are to be processed, questioned, etc. In that, it's something of a critique of practices to date. And maybe a welcome sign of belated reform.

Here's the section that defines an Enemy Combatant:

c. Additional Classification. In reference to the Global War on Terror there is an additional classification of detainees who, through their own conduct, are not entitled to the privileges and protection of the Geneva Conventions. These personnel, when detained, are classified as enemy combatants.

(1) Enemy Combatant (EC). Although they do not fall under the provisions of the Geneva Convention, they are still entitled to be treated humanely, subject to military necessity, consistent with the principles of GC, and without any adverse distinction based on race, color, religion, gender, birth, wealth, or any similar criteria, and afforded adequate food, drinking water, shelter, clothing, and medical treatment; allowed the free exercise of religion consistent with the requirements of such detention. There is a comprehensive list of terrorists and terrorist groups identified under Executive Order 13224, located at http://www.treas.gov/ofac/. Anyone detained that is affiliated with these organizations will be classified as EC. Furthermore, there are individuals that may not be affiliated with the listed organizations that may be classified as an EC. On these specific individuals, guidance should be obtained from higher headquarters. As defined by the Deputy Secretary of Defense, an EC is defined as:

“Any person that US or allied forces could properly detain under the laws and customs of war. For purposes of the war on terror an enemy combatant includes, but is not necessarily limited to, a member or agent of Al Qaeda, Taliban, or another international terrorist organization against which United States is engaged in an armed conflict. This may include those individuals or entities designated in accordance with references E or G, as identified in applicable Executive Orders approved by the Secretary of Defense.”

Deputy Secretary of Defense global screening criteria, Feb 20, 2004

Reference E – Comprehensive List of Terrorists and Terrorist Groups Identified Under Executive Order 13224 (updates at http://www.treas.gov/ofac)

Reference G Patterns of Global Terrorism. Department of State, 2002 (updates at http://www.state.gov/s/ct/rls/pgtrpt/).

(2) Enemy combatants may be identified into the following sub-categories: (a) Low Level Enemy Combatant (LLEC). Detainees who are not a threat beyond the immediate battlefield or that do not have high operational or strategic intelligence or law enforcement value that requires the specialized type of exploitation capability available at a Joint Interrogation and Debriefing Center.

(b) High Value Detainee (HVD). A detainee who possesses extensive and/or high level information of value to operational commanders, strategic intelligence or law enforcement agencies and organizations.

(c) Criminal Detainee. A person detained because he is reasonably suspected of having committed a crime against local nationals or their property or a crime not against US or coalition forces. Excludes crimes against humanity or atrocities. (Note: this sub-category may also be applied to CIs).

(d) High Value Criminal (HVC). A detainee who meets the criteria of a HVD and is reasonably suspected of having committed crimes against humanity or committed atrocities, a breach of humanitarian law that is an inhumane act committed against any person.

(e) Security Detainee. A civilian interned during a conflict or occupation for his or her own protection.

It's important to understand that categories (a)-(e) are just subdivisions of the first section, not additions to it. Even so, this definition of “enemy combatant” is both the clearest and the broadest I have yet encountered.

Sanchez Fingered As Authorizing Torture (What Else is New?)

Reuters.com: The top U.S. commander in Iraq authorized prisoner interrogation tactics more harsh than accepted Army practice, including using guard dogs to exploit “Arab fear of dogs,” a memo made public on Tuesday showed.

The Sept. 14, 2003, memo by Army Lt. Gen. Ricardo Sanchez, then the senior commander in Iraq, was released by the American Civil Liberties Union, which obtained it from the government under court order through the Freedom of Information Act.

“The memo clearly establishes that Gen. Sanchez authorized unlawful interrogation techniques for use in Iraq, and in particular these techniques violate the Geneva Conventions and the Army's own field manual governing interrogations,” ACLU lawyer Amrit Singh said in an interview.

Um, yes, but this is news? We have known about Gen. Sanchez's role in allowing prisoner abuses for a long time. Which is why Rumsfeld's choice of Sanchez to write the first report on the Abu Ghraib abuses was clearly designed to be a cover-up—because there was no one with a stronger incentive to keep the lid on things.

Will Rumsfeld be tried for war crimes some day? There is universal jurisdiction and there is no statute of limitations.

Update: Sanchez prevaricates to the point of perjury when testifying before Congress.

GITMO Tapes 'Explosive'

JURIST - Paper Chase: Gitmo tapes 'as explosive as anything from Abu Ghraib': A former lawyer for Australian terror suspect David Hicks [defense advocacy website] told a major law conference in Australia Monday that US military videotapes from the terror detention camp at Guantanamo Bay, Cuba, would be “as explosive as anything from Abu Ghraib” if they were ever released. In his address to LawAsia Downunder 2005 [conference website] Stephen Kenny said that there are some 500 hours of video of actions by the Immediate Reaction Force (IRF) at the camp who were responsible for prisoner control, and that the ACLU was pressing for release of the tapes …

You Might Expect the CIA to Know Something?

I guess I'm just too simple-minded to keep up with the news. Maybe it's a reading comprehension thing. But my understanding was that the CIA was an intelligence agency. That means that they are supposed to have a clue or two as to what goes on abroad — even to look past official statements sometimes and perceive a hint of reality.

What then to make of the CIA's claims that it is shocked and surprised when the brutal foreign intelligence agencies to whom it hands over prisoners (via 'renditions') break their verbal commitments not to torture the prisoners, and instead proceed in their customary fashion?

At this point I'm left wondering whether the CIA wants us to think of them as really, really stupid or really, really guilty.

Today's Washington Post reports that once the CIA has handed over the victim to foreign torturers, the CIA's delicate sensibilities prevent it from asking too many questions in order that the sensitive foreigners not feel obliged to sully themselves with lies:

CIA's Assurances On Transferred Suspects Doubted: [An] Arab diplomat, whose country is actively engaged in counterterrorism operations and shares intelligence with the CIA, said it is unrealistic to believe the CIA really wants to follow up on the assurances. “It would be stupid to keep track of them because then you would know what's going on,” he said. “It's really more like 'Don't ask, don't tell.' “

At least the House is is beginning to worry about our outsourcing torture:

The House voted 420 to 2 yesterday to prohibit the use of supplemental appropriations to support actions that contravene anti-torture statutes. The measure's co-author, Rep. Edward J. Markey (D-Mass.), singled out renditions, saying “diplomatic assurances not to torture are not credible, and the administration knows it.”

Over in the Senate, however, it's CYA time:

Republicans and Democrats on the Senate Intelligence Committee failed to agree Tuesday on whether to open a formal investigation into U.S. interrogation and detention practices.

“It was probably the least constructive meeting of the Intelligence Committee that I have ever been to,” West Virginia Sen. John D. Rockefeller IV, the panel's top Democrat, said after a closed committee session.

Rockefeller said the committee was “not facing its oversight responsibilities with sufficient seriousness” on subjects that would affect the country for the next 30 to 40 years.

All seven of the committee's Democratic members have requested a formal review of interrogation and detention practices by the U.S. intelligence apparatus. The Democrats also want to look into “renditions” — a practice of transferring foreigners to other countries for detention and questioning.

…

“I believe the system is working,” [Senate Intelligence Committee Chairman Pat] Roberts said.

Stupid or guilty? Definitely guilty.

The Navy Balked at Torture

According to the Boston Globe, Navy interrogators threatened to withdraw from the entire set of Guantanamo interrogations due to their disgust at the tactics being used by other interrogators — and actually withdrew in at least once case:

A top Navy psychologist reported to his supervisor in December 2002 that interrogators at Guantanamo were starting to use “abusive techniques.” In a separate incident that same month, the Defense Department's joint investigative service, which includes Navy investigators, formally “disassociated” itself from the interrogation of a detainee, after learning that he had been subjected to particularly abusive and degrading treatment.

The two events prompted Navy law enforcement officials to debate pulling out of the Guantanamo operation entirely unless the interrogation techniques were restricted. The Navy's general counsel, Alberto Mora, told colleagues that the techniques were “unlawful and unworthy of the military services.”

One again, the military lawyers stand out as the (only?) heroes of this sordid affair.

But don't give me any of this “few bad apples” stuff… it's just not at all credible.

YATA (Froze to Death in Detention)

Yet Another Torture Allegation: Dana Priest, CIA Avoids Scrutiny of Detainee Treatment.

In November 2002, a newly minted CIA case officer in charge of a secret prison just north of Kabul allegedly ordered guards to strip naked an uncooperative young Afghan detainee, chain him to the concrete floor and leave him there overnight without blankets, according to four U.S. government officials aware of the case.

The Afghan guards — paid by the CIA and working under CIA supervision in an abandoned warehouse code-named the Salt Pit — dragged their captive around on the concrete floor, bruising and scraping his skin, before putting him in his cell, two of the officials said.

As night fell, so, predictably, did the temperature.

By morning, the Afghan man had frozen to death.

The CIA says it's investigating — two years after the fact. Which is an odd claim, since the first reaction was coverup,

[The victim] is on no one's registry of captives, not even as a “ghost detainee,” the term for CIA captives held in military prisons but not registered on the books, they said.

And the second reaction was just as predictable with this crew:

The CIA case officer, meanwhile, has been promoted.

Of course the whole thing was rotten from the start as the CIA took the official view that US rules didn't apply to what it called an Afghan facility. Never mind that the CIA paid for it, paid all the salaries, decided who would be held there, and pretty much ran it. The CIA still claimed it was a “foreign facility”. Deniability and all that (including deniability towards Congress).

The only vaguely good news here is that apparently torture is considered a low-status activity in the CIA.

“A first-tour officer was put in charge because there were not enough senior-level volunteers,” said one intelligence officer familiar with the case. “It's not a job just anyone would want. More senior people said, 'I don't want to do that.'

It's Rumsfeld

Updating ACLU & Human Rights First to File Torture Allegations Against 'High Ranking US Official' below: Reuters reports that the “high-ranking US official” being sued is indeed Rumsfeld.

ACLU & Human Rights First to File Torture Allegations Against 'High Ranking US Official'

Two human rights groups plan to file a lawsuit charging a high-ranking U.S. official with violation of the U.S. Constitution and international laws prohibiting torture and cruel, inhuman or degrading treatment.

According to their press release,

At a 10:30 a.m. news conference [in Washington later today], the American Civil Liberties Union and Human Rights First (formerly Lawyers Committee for Human Rights), joined by former military and government officials, will announce a lawsuit against a high-ranking U.S. government official on behalf of eight men who were tortured and abused by U.S. forces in Iraq and Afghanistan.

The lawsuit will charge that officials at the highest level bear ultimate responsibility for the physical and psychological injuries these men suffered. The men represented in the lawsuit were incarcerated in U.S. detention facilities in Iraq and Afghanistan, where they were subjected to torture and other cruel and degrading treatment, including severe and repeated beatings, cutting with knives, sexual humiliation and assault, mock executions, death threats, and restraint in contorted and excruciating positions. None of the men were ever charged with a crime.

Who is the official? I have no idea, although Rumsfeld would be my first guess, followed by Gonzales, followed by whoever Rumsfeld put in charge of the information extraction program (would that be Feith?)

The case could have everything - fights over discovery of classified information, claims of multifarious sorts of immunity, and (from the sound of it) maybe even debates over the scope of the alien tort statute. Oh, and the smell of justice. Don't forget the smell of justice. Even if the wheels of justice grind exceedingly slow.

YATA (Afghanistan edition)

Mother Jones Magazine summarizes the state of play regarding various torture allegations in Afghanistan. In addition to allegations of brutalization (“they rammed a stick up my rectum”), there's the usual two forms of coverup: ship people out, punish only the small fry.

From Bagram to Abu Ghraib. Hundreds of prisoners have come forward, often reluctantly, offering accounts of harsh interrogation techniques including sexual brutality, beatings, and other methods designed to humiliate and inflict physical pain. At least eight detainees are known to have died in U.S. custody in Afghanistan, and in at least two cases military officials ruled that the deaths were homicides. Many of the incidents were known to U.S. officials long before the Abu Ghraib scandal erupted; yet instead of disciplining those involved, the Pentagon transferred key personnel from Afghanistan to the Iraqi prison.

…

The lawyers also fault the military and the Pentagon for failing to track responsibility for the abuses up the chain of command. To date, only 10 soldiers have been prosecuted for crimes involving prisoner abuse in Afghanistan and Iraq—none of them above the rank of staff sergeant. “All of the investigations have looked down rather than up,” says Lucas Guttentag, a lawyer at the ACLU. “Our goal is to hold high-level officials accountable for the policies and practices that caused widespread torture, and to hold them accountable for their failure to stop the abuse once it came to light. This is really about who bears ultimate responsibility.”

…

Outside investigators, meanwhile, have been almost entirely barred from the Afghan detention centers. The International Committee for the Red Cross has had no access to any of them except Bagram, and even there its representatives have not been able to see all parts of the facility. Former prisoners have said the Red Cross never visited detainees being held in the upstairs cells, including Dilawar and Habibullah. Amnesty International and Human Rights Watch have not been allowed to visit the base at all; neither has the Afghan human rights commission, which has been asking the U.S. military for access to Bagram and other detention centers for a year. “We expected to have a friendly relationship with the coalition forces,” says deputy chair Hakim. “But what the coalition has done, the abuses, overshadows the friendly aspect of the American intervention. I ask you: What is the difference between the Americans and the Soviet forces who occupied Afghanistan?”

YATA (Domestic)

Bilmon reads the NY Daily news:

Whiskey Bar: The Out of Towners Defense attorneys call it Brooklyn's Abu Ghraib. On the ninth floor of the federal Metropolitan Detention Center in Sunset Park, terrorism suspects swept off the streets after the Sept. 11 attacks were repeatedly stripped naked and frequently were physically abused, the Justice Department's inspector general has found.

The detainees - none of whom were ultimately charged with anything related to terrorism - alleged in sworn affidavits and in interviews with Justice Department officials that correction officers … shackled their hands and feet before smashing them repeatedly face-first into concrete walls — within sight of the Statue of Liberty …

I've heard stories like this which pre-date 9/11, but one has the strong anecdotal feeling that 9/11 and/or the Patriot Act has created a psychological climate among law enforcement which makes things much worse than previously.

YATA (Coverup Dept.)

Pictures of mock executions destroyed, report says. Via AP:

Pictures of U.S. soldiers in Afghanistan posing with hooded and bound detainees during mock executions were destroyed after the Abu Ghraib prison scandal in Iraq to avoid another public outrage, Army documents released Friday by the American Civil Liberties Union show.

The results of an Army probe of the photographs were among hundreds of pages of documents released after the ACLU obtained a federal court order in Manhattan to let it see documents about U.S. treatment of detainees around the world.

Of course, this is small potatoes compared to the White House/Rumsfeld decision to put the General who ordered the abuse in charge of so-called investigation into it….

YATA (Hung By Wrists 'Till Dead)

Long quote. No comment needed: Yahoo! News - AP: Iraqi Died While Hung From Wrists (impermanent link, sorry about that) [alternate lnk).

An Iraqi whose corpse was photographed with grinning U.S. soldiers at Abu Ghraib died under CIA (news - web sites) interrogation while suspended by his wrists, which had been handcuffed behind his back, according to investigative reports reviewed by The Associated Press.

The death of the prisoner, Manadel al-Jamadi, became known last year when the Abu Ghraib scandal broke. The U.S. military said back then that it had been ruled a homicide. But the exact circumstances of the death were not disclosed at the time.

The prisoner died in a position known as “Palestinian hanging,” the documents reviewed by The AP show. It is unclear whether that position — which human rights groups condemn as torture — was approved by the Bush administration for use in CIA interrogations.

…

Al-Jamadi was one of the CIA's “ghost” detainees at Abu Ghraib — prisoners being held secretly by the agency.

His death in November 2003 became public with the release of photos of Abu Ghraib guards giving a thumbs-up over his bruised and puffy-faced corpse, which had been packed in ice. One of those guards was Pvt. Charles Graner, who last month received 10 years in a military prison for abusing detainees.

Al-Jamadi died in a prison shower room during about a half-hour of questioning, before interrogators could extract any information, according to the documents, which consist of statements from Army prison guards to investigators with the military and the CIA's Inspector General's office.

…

Dr. Vincent Iacopino, director of research for Physicians for Human Rights, called the hyper-extension of the arms behind the back “clear and simple torture.” The European Court of Human Rights found Turkey guilty of torture in 1996 in a case of Palestinian hanging — a technique Iacopino said is used worldwide but named for its alleged use by Israel in the Palestinian territories.

The Washington Post reported last year that after the Abu Ghraib scandal broke, the CIA suspended the use of its “enhanced interrogation techniques,” including stress positions, because of fears that the agency could be accused of unsanctioned and illegal activity. The newspaper said the White House had approved the tactics.

YATA (JAG Heroics Dept.)

New York Daily News - World : Military lawyers at the Guantanamo Bay terrorist prison tried to stop inhumane interrogations, but were ignored by senior Pentagon officials, the Daily News has learned.

Judge advocates - uniformed legal advisers known as JAGs who were assigned to a secret war crimes task force - repeatedly objected to aggressive interrogations by a separate intelligence unit at Camp Delta, where Taliban and Al Qaeda suspects have been jailed since January 2002.

But Pentagon officials “didn't think this was a big deal, so they just ignored the JAGs,” a senior military source said.

The military lawyers' actions had never been disclosed and are the first known cases of lower-level officers resisting interrogations at the Cuban camp that might constitute torture. Some officials called them “unsung heroes” for risking their careers by crossing senior officials who approved the techniques.

(via Balkinization)

The lawyers' objections were that battlefield interrogation methods, where slapping around a prisoner might be justifiable if it immediately saved lives, were immoral and possibly illegal if used on prisoners far from a war zone and long after their capture, three sources said. Abuse cases reported in FBI memos obtained by the American Civil Liberties Union are now being probed by the Justice Department and the U.S. Southern Command, the Pentagon unit that oversees Gitmo.

One of the judge advocates, an Air Force officer, left Gitmo and then filed a Jan. 15, 2003, “Memorandum for the Record,” sources said. According to portions read to The News, the memorandum noted conflicting interrogation policies at Gitmo and objected to aggressive techniques.

These were raised repeatedly with the Southern Command by their secret unit, the Criminal Investigation Task Force, a 150-person team of investigators from each branch of the military. Its mission was to work with the FBI and Secret Service to identify detainees' fitness for military war crimes trials.

On the same day of the 2003 Memorandum for the Record, Rumsfeld temporarily rescinded his December 2002 order permitting “stress positions,” the use of dogs and “mild” physical contact to intimidate uncooperative prisoners, because of legal concerns.

The objectionable interrogations were done by Joint Task Force-Guantanamo, a separate intelligence unit seeking tips on terror threats, sources said.

I've said it before — the JAG lawyers are the only ones coming out of this with dignity.

YATA to the Nth (Official)

Holden at First Draft, Pentagon Confirms Detainee Allegations:

A forthcoming report of a Pentagon investigation of the treatment of detainees in GITMO confirms allegations that defense department interrogators used sexual humiliation tactics during interrogations. When detainees previously complained of routine torture at GITMO Don Rumsfeld insisted that they were treated “humanely,” and Pentagon officials said terrorists were trained to fabricate torture allegations. We can now assume that such assertions are no longer opperative.

…

Church's report found that interrogators used sexually oriented tactics and harassment to shock or offend Muslim prisoners, the senior Pentagon official said. The official said that the military would not condone “sexual activity” during interrogation, but that good interrogators “take initiative and are a little creative.”

“They are trying to find the key that will get someone to talk to them. Using things that are culturally repulsive is okay as long as it doesn't extend to something prohibited by the Geneva Conventions.”

I've got some news for that “senior Pentagon official”. The Geneva Conventions specifically prohibit “Outrages upon personal dignity, in particular, humiliating and degrading treatment.”

YATA (Canadian Child Dept.)

Canadian Was Abused at Guantánamo, Lawyers Say

Lawyers for a Canadian detainee at Guantánamo Bay, Cuba, who was captured in Afghanistan when he was 15 years old asserted in a document released Wednesday that he was repeatedly abused by his American jailers.

…

Mr. Khadr spent three years in a small cell in Guantánamo, and his lawyers have previously asserted that the United States government has violated the Convention on the Rights of the Child. The treaty, to which the United States is a signatory, condemns the recruitment of child fighters by groups like Al Qaeda and obliges nations to help children who become involved in armed conflict.

Where's the outrage? Very strong, but insufficiently broadly based, I'd say.

YATA

BBC News reports Moroccans claim Guantanamo abuse:

The five defendants claim that on numerous occasions while in detention at Guantanamo Bay, they were stripped naked and handcuffed before having dogs set upon them.

…

All five defendants plead not guilty to having links with al-Qaeda and Osama Bin Laden, or to having undergone military training in Afghanistan.

When asked by the judge at Rabat's appeal court why they had signed testimonies to the contrary, they replied that they had been blindfolded for much of their time at Guantanamo and were still blindfolded when they were told to sign testimonies once in Morocco.

The Moroccan judge, the article makes clear, doesn't want to hear about it.

YATA (Yet Another Torture Allegation)

Via Jurist: Released Briton details assault, torture at Guantanamo

Apologia Pro Tormento: Analyzing the First 56 Pages of the Walker Working Group Report (aka the Torture Memo)

I have read a redacted copy of the first 56 pages of the Torture Memo (alternate source). The memo — or at least the approximately half of it we have — sets out a view as to how to make legal justifications for the torture of detainees unilaterally labeled by the government as “unlawful combatants”, including (but not limited to?) al Qaida and Taliban detainees in Guantanamo.

Here are my initial comments on some of the main points, especially those regarding Presidential powers and international law. I've concentrated on those parts because those are the relevant issues I think I know the most about; in contrast, I say little here about the direct criminal law issues. I wrote this in a hurry, so please treat these as tentative remarks. I look forward to discussion with other readers, and will post amendments and corrections when they are brought to my attention.

1. The memo begins by noting, accurately, that our international obligations include a commitment to refrain from actions that would be 'cruel and unusual punishment' under the Constitution. This acknowledgment does not, however, infuse much of what follows.

2. The memo notes that Justice Department opined in a separate memo dated January 22, 2002, Re: Application of Treaties and Laws to al-Queda and Taliban Detainees, that customary international law “cannot bind the Executive Branch under the Constitution because it is not federal law” and in particular clear executive decisions would be “controlling” law that would trump customary international law. [Note: The Jan. 22 memo cited here seems related to the Gonzales memo of Jan 25, but to be a separate document — is a copy available anywhere?]

In my opinion, the first part of this statement about customary international law is directly contrary to the Restatement (3rd) of Foreign Relations Law of the United States § 111(1) — although I suppose a reasonable person might conceivably disagree. The second part is simply weasel wording: Compliance with customary law is an international obligation of the US, but not always a domestic obligation. It's agreed that Congress can constitutionally legislate in a way that would violate our international obligations, although as a matter of construction courts presume it has not done so unless the Congressional intent to violate international law is explicit. It's not generally agreed the President can do this unilaterally, especially since the Supreme Court declared that “international law is part of our law” in The Paquete Habana (1900).

3. As previously noted by the WSJ, the memo argues (accurately, in my opinion) that the Torture statute, 18 USC § 2340, applies only to conduct outside the US, then it argues (plausibly) that Guantanamo is inside the US for jurisdictional purposes, hence not within the zone covered by § 2340. As I noted previously, this analysis conflicts with the position the US government took regarding Guantanamo before the Supreme Court. (But I actually think the memo has it right, and the US litigation posture wrong.) The memo argues that the two positions can be reconciled, which again is technically correct—they can be read that way—but I think it would be wrong to read them that way, and it's certainly not compelled.

4. Then there's a long discussion of what is or isn't torture, with much fine parsing of the torturer's intentions, all of which seems designed to bend over backwards to suggest that hurting people a whole lot to the point of damage is fine if you do it with the right spirit. I cannot bear to summarize all this; it is too painful. I have never seen a better demonstration of the first part of the saying that “the letter killeth, but the spirit giveth life,” an ironic property given the identity of the lead author.

5. The discussion of Presidential powers begins (page 20) with the observation that in the exercise of the commander-in-chief function, and in particular in the conduct of operations against hostile forces, the President enjoys “complete discretion”. That the President's powers are at their greatest in these circumstances cannot be disputed. But while the discretion is indeed very great, I do not see how it could possibly be read to include the authority to commit war crimes, even pre-Nuremburg. And today it clearly cannot include that authority, at least without explicit Congressional authorization. Thus, the entire discussion of Presidential power is based on a premise so false that any student who has taken introductory International Law should be able to recognize its error. And as any logician will tell you, when you begin with an erroneous premise, you are in trouble.

6. A similar error infuses the paper's discussion of the application of the Torture statute, 18 USC § 2340, to actions on the field of battle or activities ancillary to battle. On p. 21 the paper states that the President's military authority to run a campaign means that the Torture statute “must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority” (i.e. all military interrogations in wartime) because — I am not making this up, they are — “Congress lacks the authority to under Article I to set the terms and conditions under which the President may exercise his authority as Commander-in-Chief to control the conduct of operations during a war.” In short, according to this memo, on the field of battle the President's authority is absolute (recall that the English commander-in-chief was an official who reported to George III). “Congress may no more regulate the President's authority … to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.”

This is clearly wrong on the Constitutional level, and quite probably a bad analogy. It is clearly wrong to suggest that Congress exceeds its authority when it implements an international treaty obligation against torture, even if this has the result of reducing otherwise extant Presidential power. This is because under Article VI of the Constitution, international treaties “shall be the supreme Law of the Land”. We've known that this means what it says since at least Missouri v. Holland, if not long long before.

It is generally agreed — and I certainly believe — that Congress has no role in dictating battlefield troop movements, or the choice of field commanders (as opposed to its constitutional role in approving promotions). Conversely, under the Constitution, if not always in real life, Congress does get to choose who we attack. And Congress does have a say in the methods by which we wage war, both via the spending power and via its constitutionally prescribed role in setting the rules of military justice. If Congress passes a law that says it's a criminal act for a soldier to thumb his nose at a prisoner, or carry a type of weapon, that's a valid law, and the Commander in Chief authority cannot trump it. To argue otherwise is to say that were Congress to decide that we should not make a neutron bomb, as it did, the President could nonetheless decide to make one, and use it on the battlefield. Similarly, were Congress to pass a law that said nuclear weapons could only be used if certain conditions had been met, under the Constitution the President would not have the authority to ignore that limitation.

But that's all beside the point. Even if we were to accept that the President has unlimited authority over the battlefield, it in no way follows that this authority extends to Guantanamo, which is far removed from it. The memo treats this as given. It is anything but given.

Page 23 really goes off the rails, making an argument popular with the Federalist Society, but not taken seriously by mainstream academics, for unlimited, uncontainable, Presidential power. The so-called “unitary executive” argument is set out most clearly in a Harvard Law Review article, Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1155 (1992). My explanation as to why this article is profoundly wrong and dangerous can be found at A. Michael Froomkin, The Imperial Presidency's New Vestments, 88 Nw. L. Rev. 1346 (1994), which in turn sparked separate and not entirely consistent answers from each of the two authors of the Structural Constitution article. My rebuttal article Still Naked After All These Words, 88 Nw. L. Rev. 1420 (1994) is also online.

On pages 22-23 the Walker Working Group Report sets out a view of an unlimited Presidential power to do anything he wants with “enemy combatants”. The bill of rights is nowhere mentioned. There is no principle suggested which limits this purported authority to non-citizens, or to the battlefield. Under this reasoning, it would be perfectly proper to grab any one of us and torture us if the President determined that the war effort required it. I cannot exaggerate how pernicious this argument is, and how incompatible it is with a free society. The Constitution does not make the President a King. This memo does.

7. The draft returns to the theme of cruel and unusual punishment around page 35, grudgingly noting that although Gitmo detainees have no constitutional rights since they are foreigners, the US nonetheless can't subject to them to acts that would be 'cruel and unusual' due to our obligations under the Convention Against Torture. Having said that, the memo notes that what is cruel and unusual is not a hard and fast rule (I'd add “in all cases”, since I think some things are per se cruel and unusual), and what is forbidden may depend on the circumstances. Having constructed this loophole — which to the extent it exists is not designed to allow coercive questioning — the memo then tries to squeeze through it, noting in its Eight Amendment analysis that the “government interest here is of the highest magnitude” (p. 38) and hence things that might be excessive force in other circumstances might not be here. But it doesn't come to any specific conclusions about what's in and what's out.

8. There's an extensive discussion of various criminal and civil statutes that might land a torturer in hot water, but I'm going to skip over those. Similarly, I'm not going to discuss the UCMJ provisions cited on pages 47-51, except to note that the UCMJ is a congressional enactment, pursuant to its constitutional powers. Indeed, as the memo notes, “even in war limits to the use of force exist” and these are enforced by the military justice system.

The memo is ambiguous as to whether it argues that the UCMJ is an infringement of the President's supposed plenary power of the military. Failing to make this argument would expose the flaws in its own reasoning that the President is subject to no legal constraint in his prosecution of a war and in any ancillary activities relating to it. On the other hand, arguing the UCMJ is invalid is obviously nuts. Here's what the memo says on the subject of the President unilaterally overruling the UCMJ (p. 53):

“Legal doctrines could render specific conduct, otherwise criminal not unlawful.

See discussion of Commander-in-Chief Authority, supra.

Oddly, there's no mention of the Constitutionally proper means by which a President could in fact overrule the UCMJ — by exercising the Pardon power. (Perhaps it's not so odd — unitary executive partisans don't want to admit that the Pardon power is how the President balances Congress's lawmaking power; they'd rather have the President in effect legislate.)

9. The final section of the 56 pages in the version posted online (there's obviously lots of the memo left to be found), discusses the very reasonable rules in fact used heretofore by the US armed forces. Unlike the authors of this memo, the folks on the sharp end eschew physical torture, preferring interrogation techniques that sound a lot like what the cops do down at the station.

10. This memo is labeled “draft”. Even so, if the second half is like the first, then everyone who wrote or signed it strikes me as morally unfit to serve the United States.

If anyone in the higher levels of government acted in reliance on this advice, those persons should be impeached. If they authorized torture, it may be that they have committed, and should be tried for, war crimes. And, as we learned at Nuremberg, “I was just following orders” is NOT (and should not be) a defense.

[Note: I have corrected the paragraph numbering and a number of typos. 6/9/04 10am]