Thursday, April 12, 2012

Cheney's minions could not destroy all the copies...

A lawyer in the State Department during the Bush administration, Phillip Zelikow wrote a memo of which Cheney, despite his vast apparatus of terror in the government (see Jane Mayer, The Dark Side), could not locate and destroy all the copies. It describes the criminality, under American and international law, of the torture polices of the Bush-Cheney administration though without naming them torture. The sheer insanity of this story - that the Bush-Cheney administration developed, increasingly, internally, the psychology of a police state - needs to be absorbed. In the Dark Side, Jane Mayer told the story of how Jack Goldsmith, head of the Office of Legal Counsel, had to make up a secret language with Acting Attorney General James Comey to avoid detection and persecution under the Bush administration when Goldsmith withdrew one of the torture memos of John Yoo.* These are stories one might expect to read about the regime of North Korea or of Saddam Hussein.

They are instead as American as apple pie, passed over in silence in the corporate press (which much of the time resembles a tyrant's bullhorn). As reactionary as Obama sometimes is (he has allowed no investigations, has persecuted, worse than Bush, whistleblowers like Bradley Manning and John Kiriakou below), this story also reveals chillingly what it is that Obama as President still heads off (in the last campaign, Romney enthusiastically promised "to double the size of Guantanamo"). Scott Horton, a leading international lawyer, explains below the significance of Zelikow's memo in any future criminal prosecution of Bush officials, here or internationally, which makes Cheney's desperation to suppress it clear.

Zelikow's memo was written at a time when to mention the word torture was sufficient to be banished from the Bush-Cheney administration. That administration was, among other things, a war on truth. The New York Times's reporting pages then blithered about "harsh interrogations" - what they named torture when those Bush deemed enemies such as Iran did it, the use of English permitted only for the case of others. Writing the memo was an act of courage, which exempts Zelikow – but sadly not his superior, my former student, Condi Rice - from being guilty of war crimes.

In contrast to Zelikow, Rice, for example, presided over national security meetings which discussed how many times to water-board particular prisoners and mandated the ever enthusiastic Mr. Tenet to go do them. The "decent moment" in her grim tenure was taking Khaled El-Masri who had been mistaken for someone the US was looking for who had a name like his (those Muslim names, so similar, how are American interrogators, how is a Secretary of State, to know?). El-Masri, a Turkish immigrant, was kidnapped from Germany and tortured for several years. When Condi discovered the mistake, she had him dropped naked on a mountainside in Albania. He thought his torturers were taking him out of his cell to kill him....In response to a direct question, Rice later denied to Chancellor Angela Merkel that the US had done it...

Everything else was worse.

Over a hundred prisoners, by Pentagon statistics, were tortured to death in American “custody.” The cases were named homicides. See the fine and sad film about the soldiers who tortured and murdered the twenty-two year old taxi driver Mr. Dilawar - Taxi to the Dark Side. Taking turns, they kicked him again and again in the knees over several hours, as he screamed for mercy in Pushto, until his legs collapsed; he had a heart attack and died. By the standard of American trials for Tokyo war criminals - the doctrine of command responsiblity - leaders who do not actively warn against such crimes are guilty of them (Rumsfeld, Cheney, Bush and Rice ordered them). As a result of those trials, the US executed Japanese generals.

Watch the film and ask yourself if you want to be represented by a government that does - or protects (Obama needs to be fiercely challenged on this) - things like this.

It is the higher-ups who are still lionized here, though they can no longer go abroad…

Scott Horton and Andrew Sullivan below have very good comments on the significance of Zelikow’s memo. The cover up for war crimes provided by the Office of "Legal" Counsel was pseudo-legal (Yoo – currently disgracing Berkeley “Law” school, Gonzalez, Bybee, Bradbury, and even Goldsmith who withdrew one of the important torture memos but apparently issued another permitting some torture provided a cover for torture and murder rather than legal advice). The smoking gun is whether they and others were clearly acting in bad faith, whether everyone knew that this was bad faith (Goldsmith's actions in withdrawing the torture memo help, exempt him from charges), whether the spirits of Torquemada. Vishinski or Goebbels had taken possession of these people. This is why Zelikow's words, as a lawyer, are so important; why Cheney and Bush tried to hunt them down and make them disappear. They succeeded for 3 years beyond even the end of their administration. But the words are now in the open for any future criminal proceeding. Mr. Bush, Mr. Cheney and Ms Rice, inter alia, no longer went to Europe even before. See here. here and here. They are less likely to travel abroad again.

For the American and international laws broken by the administration, see here. For my debate with then state senator Shawn Mitchell over whether Condi is a war criminal, see here and here.

For the complicity of Obama and Holder in the cover-up of torture and thus, sadly, complicity in war crimes– see the AP article on the persecution of John Kiriakou, a CIA agent who believed in the law and spoke out against water-boarding, below. The leaders of the Bush administration (Powell and Zelikow excepted and perhaps Goldsmith), rightly fear prosecution.

Obama initially stopped some forms of torture, but has now become complicit in war crimes. The torture of Bradley Manning and the war on whistle-blowers - particularly in contrast with Obama's protection and thus, embrace of torturers - is startling.

April 5, 2:45 PM, 2012 · No Comment

Witness for the Prosecution
By Scott Horton

Yesterday the Obama Administration, after a delay of several years, released an important document relating to the Bush Administration’s torture policies: a memorandum by Philip Zelikow, a high-ranking State Department lawyer and confidant of Condoleezza Rice, which aggressively refuted Justice Department memoranda that sought to authorize the use of thirteen “enhanced interrogation techniques” used by the CIA. Zelikow’s memo concluded that the use of these techniques would constitute prosecutable felonies—war crimes. As Zelikow explained in an appearance before the Senate Judiciary Committee in 2009, his memo, when it was circulated in February 2006, caused senior figures in the Bush White House to go ballistic—they actually sought to collect and destroy all the copies.

The memo is not only a significant historical document, it may also provide important evidence in future criminal prosecutions arising out of the Bush-era torture programs. Indeed, the Bush White House fully appreciated this possible consequence, which explains why they tried so hard to make the memo disappear and why Bush-era officials apparently pressed their successors to withhold the memo, delaying its release for three years.

Conservative defenders of the Bush torture team argue that even if the techniques used constituted torture or cruel, inhuman, and degrading (CID) conduct, they were entitled to rely on advice from Justice Department lawyers that said the opposite. In order for a prosecution to succeed, a prosecutor would have to show that the accused understood that what he was doing was a crime. In United States v. Altstoetter, a case in which government lawyers were prosecuted for their role in, among other things, providing a legal pretext for the torture and mistreatment of prisoners, the court fashioned a similar rule, saying that the law requires “proof before conviction that the accused knew or should have known that in matters of international concern he was guilty of participation in a nationally organized system of injustice and persecution shocking to the moral sense of mankind, and that he knew or should have known that he would be subject to punishment if caught.”

The Zelikow memo satisfies both of these elements—it makes clear that the techniques the Justice Department endorsed constituted criminal conduct, and it applied the “shock the conscience” test of American constitutional law to help reach that conclusion. It could therefore be introduced as Exhibit A by prosecutors bringing future charges.

The Zelikow memo also helps correct a popular misconception about Bush-era torture memoranda generally. DOJ public-affairs flaks routinely claim that they were authored by John Yoo and Jay Bybee in 2002, then withdrawn and reversed in later Bush Administration years after Assistant Attorney General Jack Goldsmith discovered them. Almost every element of this position is misleading—in fact, a long chain of memoranda authorized torture, and it involved a substantial number of lawyers working in the Justice Department long after both Yoo and Bybee had departed; moreover, Goldsmith withdrew only one of the Yoo–Bybee memos, leaving another in place. He also worked on another memo that ultimately approved some torture techniques, though he departed before it was finalized and issued. The Zelikow memo was prepared long after Goldsmith’s departure, and focused on a series of memoranda condoning torture issued by Acting Assistant Attorney General Steven G. Bradbury.

Following the Yoo and Bybee memos, the Justice Department’s Office of Legal Counsel played a game of musical chairs, bringing in a series of persons then replacing them. The object of this game was plainly to satisfy the White House’s relentless quest for a lawyer whose mix of political loyalty, ambition, and absence of integrity and professionalism would lead to memoranda fueling the torture program. When the music stopped, Bradbury was sitting as acting head. His three memoranda are in many respects more appalling than the Yoo–Bybee memos, but they have largely escaped public attention (perhaps because of Yoo’s clamoring for the limelight on the torture issue). In his three principal memos, Bradbury first argued that none of the thirteen techniques constitutes torture; in the second, he argued that even if used in combination, they did not constitute torture; and in the third, he argued that the techniques were not CID, and that even if they were, there was no penalty for them.
In his memo, Zelikow doesn’t take up the question of “torture” per se. By 2006, the issue had been established as the third rail of the Bush years, and acknowledging the obvious fact that techniques like waterboarding were iconic acts of torture would have been career ending. Instead, he focused on the “torture lite” standard of CID, and demonstrated in a straightforward and convincing way how Bradbury had misread existing constitutional precedents, as well as international standards. There’s nothing radical or daring about the Zelikow memo. It simply states a series of established principles of law. The premises and arguments of the Bradbury memoranda, by contrast, are so absurd that they did not withstand the light of day—they were withdrawn by the Bush Administration before it decamped from Washington.

Spencer Ackerman, whose persistence is to be credited for the publication of Zelikow’s memo, astutely pressed its author to answer this question: Why, in light of Zelikow’s findings, did the special prosecutor appointed by Eric Holder to investigate the legality of CIA interrogation techniques fail to bring charges?

“I don’t know why Mr. Durham came to the conclusions he did,” Zelikow says, referring to the Justice Department special prosecutor for the CIA torture inquiry, John Durham. “I’m not impugning them, I just literally don’t know why, because he never published any details about either the factual analysis or legal analysis that led to those conclusions.”

Durham has so far refused to offer any explanations for his decision, and given the expiry of the statutory mandate for a report, it’s unlikely that we will ever hear one. Durham’s decision was probably driven at some level by the Obama Administration’s decision to refuse to “look back,” and at another level by the institutional interests of the Justice Department. After all, in the Bush years, senior DOJ lawyers wrote opinions that aimed to induce CIA agents to use these techniques, promising them they would not face prosecution if they did so. Pressing charges against agents now would entail investigating the criminal culpability of DOJ lawyers, and the DOJ has repeatedly said it will not examine the criminality of its personnel in this sordid affair.

Outsiders may well cast a harsher eye on these facts: Yoo, Bybee, and Bradbury promised that those who used torture techniques would be protected from prosecution. And Durham made good on their promise. If a criminal enterprise was working within the U.S. government to introduce systematic torture, its heart lay deep inside the Justice Department.

Andrew Sullivan 

4 Apr 2012 12:34 PM
Bush And Cheney vs The West

Finally, Spencer Ackerman gets his document. It's Philip Zelikow's 2006 State Department memo arguing that the interrogation techniques already authorized by Bush were clearly illegal - and way outside the bounds of American precedent:

Zelikow knew that this torture violated core values in American history:

“We are unaware of any precedent in World War II, the Korean War, the Vietnam War, or any subsequent conflict for authorized, systematic interrogation practices similar to those in question here,” Zelikow wrote, “even where the prisoners were presumed to be unlawful combatants.”

Other “advanced governments that face potentially catastrophic terrorist dangers” have “abandoned several of the techniques in question here,” Zelikow’s memo writes. The State Department blacked out a section of text that apparently listed those governments.

“Coercive” interrogation methods “least likely to be sustained” by judges were “the waterboard, walling, dousing, stress positions, and cramped confinement,” Zelikow advised, “especially [when] viewed cumulatively.” (Most CIA torture regimens made use of multiple torture techniques.) “Those most likely to be sustained are the basic detention conditions and, in context, the corrective techniques, such as slaps.”

(I presume "advanced governments" refers in part to Israel whose Supreme Court struck down the torture the Israelis once inflicted on Palestinian terror suspects.) But what's crucial here is that while I think there's no doubt that what was authorized was torture, the legal bar against cruel, inhuman, and degrading interrogation techniques which also "shock the conscience" is and was much broader. The Reagan-signed Convention Against Torture is not pulling a Yoo, trying to parse legitimate forms of torture from the illegitimate. It is insisting on the broadest definition possible. Here is a passage from Reagan's signing statement:

The United States participated actively and effectively in the negotiation of the Convention. It marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment. Note that the law is very clear that no national emergency can trump this prohibition - precisely because torture is invariably defended as an emergency. Zelikow clearly understood this. As presumably did Condi Rice. And let me repeat what was actually done to the prisoners in plain English:

using dogs to terrorize prisoners; stripping detainees naked and hooding them; isolating people in windowless cells for weeks and even months on end; freezing prisoners to near-death and reviving them and repeating the hypothermia; contorting prisoners into stress positions that create unbearable pain in the muscles and joints; cramming prisoners into upright coffins in painful positions with minimal air; near-drowning, on a waterboard, of human beings—in one case 183 times—even after they have cooperated with interrogators.

The gut test: if an American were subjected to these techniques in an Iranian prison, would we regard it as torture? It's not really close, is it?


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Posted by Alan Gilbert

CIA agent who publicly opposed waterboarding charged with leaking classified secrets to journalists
PUBLISHED: 00:44 EST, 6 April 2012

A high profile CIA agent made famous by his public opposition to waterboarding has been indicted by a grand jury for leaking government secrets to reporters.

John C. Kiriakou is accused of telling journalists the name of another operative and his role in the capture of al-Qaida financier Abu Zybaydah shortly after the September 11 terrorist attacks.

The indictment of Kiriakou, returned by a federal grand jury in Alexandria, Virginia, is part of an aggressive Justice Department crackdown on leakers and is one of a half-dozen such cases opened during the Obama administration.

The five-count indictment charges Kiriakou, 47, who was arrested in January, with divulging to journalists - including a New York Times reporter - the role of an associate who participated in the capture of suspected al-Qaida financier Abu Zubaydah in the months after the September 11, 2001, terrorist attacks. The officer's participation in that mission was classified.

The indictment also accuses Kiriakou of separately disclosing a covert officer's name to an unidentified journalist. The government began investigating after information about that officer appeared in a sealed legal brief submitted by lawyers representing a detainee at Guantanamo Bay. Authorities say the journalist passed on the officer's name to a defense team investigator. The defense lawyers are not alleged to have done anything illegal.

Kiriakou, who is free on bond, is scheduled to be arraigned April 13 in US District Court in Alexandria.

Authorities say Kiriakou denied to FBI agents that he had leaked the information and answered 'Heavens, no' when asked if he had provided Zubaydah's name to a reporter. They say he lied about his actions in an effort to convince the CIA to let him publish a book, 'The Reluctant Spy: My Secret Life in the CIA's War on Terror.'

The indictment includes one charge of making false statements, which carries a maximum five-year prison sentence, and four counts of violating either the Intelligence Identities Protection Act or the Espionage Act - each punishable by up to 10 years.

Captured: Al-Qaida financier Abu Zubaydah was waterboarded 86 times after his capture

Kiriakou received public attention for his statements on waterboarding, which he called an 'unnecessary' form of interrogation during a 2007 interview with ABC. Kiriakou said the technique had been used effectively to break down Zubaydah, who was waterboarded 83 times, and had been justified in the months after September 11. But he also appeared to express misgivings about whether the harsh interrogation method was still appropriate.

'(W)e were really trying to do anything that we could to stop another major attack from happening,' Kiriakou said.

'I don't think we're in that mindset right now. ... And, as a result, waterboarding, at least right now, is unnecessary.'

He has since acknowledged that much of what he said turned out to be wrong. An FBI interrogator, for instance, has testified to the Senate that Zubaydah's waterboarding did not yield important intelligence, contrary to claims by the CIA and the Bush administration. And he has acknowledged that he was not present for the interrogations and instead relied on what he'd heard and read.

Robert Trout, one of Kiriakou's lawyers, declined to comment Thursday. But another of his lawyers, Plato Cacheris, said in January that the charges criminalized routine conduct between journalists and their government sources.

The Government Accountability Project, a whistleblower protection organization, blasted the indictment -- the sixth criminal leak case opened under the Obama administration

Jesselyn Radack, the organization's national security and human rights director, said the Justice Department was punishing a whistleblower under a law intended to prosecute spies and that Kiriakou was being targeted partly because of his public statements questioning the use of waterboarding.

'Back when no one was saying anything, back in 2007 when we were arguing about the validity of waterboarding, he was the only CIA official to say waterboarding was torture,' she said.

*Goldsmith is an extreme right-winger, who participated in extraordinary renditions (also a war crime and linked to the crime of torture). But the realization that something was markedly illegal and immoral in what even he was asked to do plainly did not escape him either.

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