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May 30, 2009

National Lawyers Guild Calls for Reasoned Analysis of Sotomayor Nomination

New York–In the wake of President Obama’s nomination of Judge Sonia Sotomayor to the United States Supreme Court, the National Lawyers Guild (NLG) encourages a reasoned analysis of Sotomayor’s candidacy. Critics are focusing on accusations of judicial activism and identity politics rather than engaging in sound examination of her legal qualifications. Comments of this nature serve only to distract from meaningful discussion surrounding the judicial confirmation process.

“When Judge Sotomayor was nominated, conservative pundits immediately leveled allegations of judicial activism against her. That charge is not only hypocritical, but is also disingenuous. Bush v. Gore, supported by these same commentators in 2000, is the most vivid example of judicial activism ever displayed by the highest court,” said Marjorie Cohn, President of the National Lawyers Guild.

Critics have increasingly questioned the role that Sotomayor’s race and gender played in her nomination. Changing the discourse from one of judicial qualifications to one of identity politics detracts from a proper evaluation of her suitability for the job.

The Guild encourages an analysis that focuses on Sotomayor’s credentials and ability to interpret the Constitution of the United States. These are the criteria by which any judicial nominee should be evaluated.

May 25, 2009

Obama’s Guantánamo Appeasement Plan

Two days after his inauguration, President Obama pledged to close Guantánamo within one year. The Republicans, led by Senators John McCain, Mitch McConnell and Pat Roberts, immediately launched a concerted campaign to assail the new president. They claimed his plan would release dangerous terrorists into U.S. communities and allow released terrorists to resume fighting against our troops. Fox News agitator Sean Hannity and Bush team players like torture-memo lawyer John Yoo filled the airwaves and print media with paranoia.

The Republican attacks were bogus. A 2008 McClatchy investigation revealed that the overwhelming majority of Guantánamo detainees taken into custody in 2001 and 2002 in Afghanistan and Pakistan were innocent of wrongdoing or bit players with little intelligence value. A substantial number of those prisoners were literally sold to U.S. officials in exchange for bounty payments offered by the U.S. military. A Seton Hall Law Center report has debunked Pentagon claims that many released detainees have “returned to the fight.” And no one has ever escaped from one of the U.S. super-max prisons, which house hundreds of people convicted of terrorist offenses.

The Republicans have continued to oppose the effort to close Guantánamo. In an attempt to burnish his image and forestall war crimes charges, Dick Cheney now leads the charge, making ubiquitous attacks on Obama. Keeping Guantánamo open is “important,” Cheney declares. He claims that closing Guantánamo would endanger Americans, and warns that if detainees are brought to the United States, they would “acquire all kinds of legal rights.” Obama is also taking heat from the intelligence community. Those officials, like Cheney, seek to justify what they did under the Bush regime.

And now even the Democrats are piling on the bandwagon. Reacting defensively to the Republican attack campaign, the Senate voted 90 to 6 to deny Obama funds to close Guantánamo until he comes up with a “plan” for relocating the detainees there. “We spent hundreds of millions of dollars building an appropriate facility with all security precautions on Guantánamo to try these cases,” said Democratic Senator Jim Webb on ABC News. “I do not believe they should be tried in the United States,” he added.

The pressure has caused Obama to buckle. Timed to coincide with a Cheney speech to the right-wing American Enterprise Institute, Obama announced an appeasement plan to deal with the 240 remaining Guantánamo detainees. Parts of his plan would threaten the very foundation of our legal system – that no one should be held in custody if he has committed no crime. These are Obama’s five categories for disposition of detainees once Guantánamo is closed:

1) Those who violated the laws of war will be tried in military commissions.

Obama’s plan would backtrack on an early promise to shut down the military commissions. Obama now claims that such commissions can be fair because they will no longer permit the use of evidence obtained by cruel, inhuman or degrading interrogation methods. He fails to mention, however, that the Pentagon is using “clean teams” to re-interrogate people who were previously interrogated using the prohibited methods. When they once again give the same information, it miraculously becomes untainted. Obama also fails to acknowledge that those tried in the military commissions are forbidden from seeing all the evidence against them, a violation of the bedrock principle that the accused must have an opportunity to confront his accusers.

Even the U.S. Supreme Court has disagreed with this part of Obama’s proposed plan of action. In Ex parte Milligan, the Supreme Court declared military trials of civilians to be unconstitutional if civil courts are available.

Prisoners falling in this category should be tried in the courts of the United States, because the laws of war are actually part of U.S. law. The Supremacy Clause of the Constitution says that treaties shall be the supreme law of the land. The Geneva Conventions and the Hague Convention, which the United States has ratified, contain the laws of war.

2) Those who have been ordered released from Guantánamo will remain in custody.

Seventeen Uighurs from China were ordered released after they were found not to be enemy combatants. But they continue to languish in custody because they would be imperiled if returned to China, which considers them enemies of the state. Suggestions that they be brought to the United States have been met with paranoid NIMBY (not in my backyard!) protestations. So, under Obama’s plan they will remain incarcerated in a state of legal limbo.

3) Those who cannot be prosecuted yet “pose a clear danger to the American people” will remain in custody with no right to legal process of any kind.

These are people who have never been charged with a crime. Obama did not say why they cannot be prosecuted. Secretary of Defense Robert Gates claims as many as 100 people may fall into this category. Included in this group are those who have “expressed their allegiance to Osama bin Laden.” They will suffer “prolonged detention.”

Obama’s plan for “prolonged detention” is nothing more than a newly-coined phrase for “preventive detention,” a policy that harks back to the bad old days of the Alien and Sedition Acts of 1798 and the internment of people of Japanese extraction in the 1940’s. If Obama succeeds in convincing Congress to legalize “prolonged detention,” the United States will continue to be a pariah state among justice-loving nations. The U.S. Congress, still rendered catatonic by post-9/11 rhetoric, will probably capitulate along with Obama.

Michael Ratner, president of the Center for Constitutional Rights, noted that Obama’s new system of preventive detention will just “move Guantánamo to a new location and give it a new name.”

4) Those who can be safely transferred to other countries will be transferred.

Obama noted that 50 men fall into this category. It is unclear what will happen to them when they reach their destinations.

5) Those who violated U.S. criminal laws will be tried in federal courts.

Obama cited the examples of Ramzi Yousef, who tried to blow up the World Trade Center, and Zacarias Moussaoui, who was identified as the 20th 9/11 hijacker. Both were tried and convicted in U.S. courts and both are serving life sentences.

This is the only clearly acceptable part of Obama’s plan. All detainees slated to remain in custody should be placed into this category. The federal courts provide due process as required by the Fifth Amendment to the Constitution, which does not limit due process rights to U.S. citizens: “No person . . . shall be deprived of life, liberty, or property without due process of law.”

The federal courts are well suited to deal with accused terrorists. Indeed, federal judges who have presided over such cases say that the Classified Information Procedures Act can effectively protect classified intelligence in federal court trials.

If Mr. Obama proceeds with the plan he announced this week he will empower those who point to U.S. hypocrisy on human rights as a justification to do us harm. Obama’s capitulation to the intelligence gurus and the right-wing attack dogs will not only imperil the rule of law; it will actually make us more vulnerable to future acts of terrorism.

May 6, 2009

Stanford Anti-War Alumni, Students Call for Condi War Crimes Probe

During the Vietnam War, Stanford students succeeded in banning secret military research from campus. Last weekend, 150 activist alumni and present Stanford students targeted Condoleezza Rice for authorizing torture and misleading Americans into the illegal Iraq War.

Veterans of the Stanford anti-Vietnam War movement had gathered for a 40th anniversary reunion during the weekend. The gathering featured panels on foreign policy, the economy, political and social movements, science and technology, media, energy and the environment, and strategies for aging activists.

On Sunday, surrounded by alumni and students, Lenny Siegel and I nailed a petition to the University President’s office door. The petition, circulated by Stanford Says No to War, reads:

“We the undersigned students, faculty, staff, alumni, and other concerned members of the Stanford community, believe that high officials of the U.S. Government, including our former Provost, current Political Science Professor, and Hoover Institution Senior Fellow, Condoleezza Rice, should be held accountable for any serious violations of the Law (included ratified treaties, statutes, and/or the U.S. Constitution) through investigation and, if the facts warrant, prosecution, by appropriate legal authorities.”

I stated, “By nailing this petition to the door of the President’s office, we are telling Stanford that the university should not have war criminals on its faculty. There is prima facie evidence that Rice approved torture and misled the country into the Iraq War. Stanford has an obligation to investigate those charges.”

After the petition nailing, I cited the law and evidence of Condoleezza Rice’s responsibility for war crimes – including torture – and for selling the illegal Iraq War:

As National Security Advisor, Rice authorized waterboarding in July 2002, according to a newly released report of the Senate Intelligence Committee. Less than two months later, she hyped the impending U.S. invasion of Iraq, saying, “We don’t want the smoking gun to be a mushroom cloud.” Her ominous warning was part of the Bush administration’s campaign to sell the Iraq war, in spite of the UN International Atomic Energy Agency’s assurances that Saddam Hussein did not possess nuclear weapons.

A week before the nailing of the petition, Rice made some Nixonian admissions in response to questions from Stanford students during a campus dinner designed to burnish Rice’s image on campus.

In October 1968, Stanford anti-war activists had nailed a document to the door of the trustees’ office which demanded that Stanford “halt all military and economic projects concerned with Southeast Asia.”

If you have had any affiliation with Stanford, please sign the petition at http://www.stanford.edu/group/antiwar/crpetition.html.

April 30, 2009

Condi Channels Nixon: If the President Says So, It’s Not Illegal

On April 27, Condoleezza Rice had a brief Q & A with some Stanford students:

Condi was extremely uncomfortable, defensive and nervous. She was rude to the first student, interrupted him and yelled at him.

When asked by another student about a recent report that she authorized waterboarding, Condi said, “I didn’t authorize anything. I conveyed the authorization of the administration to the agency [CIA] that they had policy authorization subject to the Justice Department’s clearance.”

The kicker was when she was asked whether waterboarding is torture. She replied, “By definition, if it was authorized by the President, it didn’t violate our obligations under the Convention against Torture.”

Richard Nixon: “If the president does it, it’s not illegal.”

John Yoo, in a 2005 debate with Notre Dame professor Doug Cassel: There is no law that could prevent the President from ordering that a young child of a suspect in custody be tortured, even by crushing the child’s testicles.

April 24, 2009

Torture Used to Try to Link Saddam with 9/11

When I testified last year before the House Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties about Bush interrogation policies, Congressman Trent Franks (R-Ariz) stated that former CIA Director Michael Hayden had confirmed that the Bush administration only waterboarded Khalid Sheikh Mohammed, Abu Zubaydah, and Abd al-Rahim al-Nashirit for one minute each. I told Franks I didn’t believe that. Sure enough, one of the newly released torture memos reveals that Mohammed was waterboarded 183 times and Zubaydah was waterboarded 83 times. One of Stephen Bradbury’s 2005 memos asserted that “enhanced techniques” on Zubaydah yielded the identification of Mohammed and an alleged radioactive bomb plot by Jose Padilla. But FBI supervisory special agent Ali Soufan, who interrogated Zubaydah from March to June 2002, wrote in the New York Times that Zubaydah produced that information under traditional interrogation methods, before the harsh techniques were ever used.

Why, then, the relentless waterboarding of these two men? It turns out that high Bush officials put heavy pressure on Pentagon interrogators to get Mohammed and Zubaydah to reveal a link between Saddam Hussein and the 9/11 hijackers, in order to justify Bush’s illegal and unnecessary invasion of Iraq in 2003, according to a newly released report of the Senate Armed Services Committee. That link was never established.

The Senate Intelligence Committee revealed that Condoleezza Rice approved waterboarding on July 17, 2002 “subject to a determination of legality by the OLC.” She got it two weeks later from Jay Bybee and John Yoo. Rice, Dick Cheney, John Ashcroft, Alberto Gonzales and George Tenet reassured the CIA in spring 2003 that the abusive methods were legal.

Team Bush claimed – and still claims – that it had to use harsh techniques to protect us from the terrorists. They really sought to create evidence to rationalize an illegal, unnecessary, and tragic war.

April 22, 2009

Bush Memos Reveal Policy of Cruelty; Obama Refuses to Enforce the Law

In response to a Freedom of Information Act request by the ACLU, President Obama released four Bush-era memos that describe unimaginably brutal techniques and provide “legal” justification for clearly illegal acts of torture and cruel, inhuman or degrading treatment. In the face of monumental pressure from the CIA to keep them secret, Obama demonstrated great courage in deciding to make the grotesque memos public. At the same time, however, in an attempt to pacify the intelligence establishment, Obama said, “it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.” He guaranteed free legal representation for CIA employees investigated by Congress or international tribunals, and indemnification for any financial judgments rendered against them.

Obama’s intent to immunize those who violated our laws banning torture and cruel treatment violates the President’s constitutional duty to “take Care that the Laws be faithfully executed.”

The memos

The memo dated August 1, 2002 was signed by Jay Bybee, and the other three memos, dated May 10, 2005, were signed by Stephen Bradbury.

In startlingly clinical and dispassionate terms, the authors of the newly-released torture memos describe and then rationalize why the devastating techniques the CIA sought to employ on human beings do not violate the Torture Statute (18 U.S.C. sec. 2340).

The memos justify 10 techniques, including banging heads into walls 30 times in a row, prolonged nudity, repeated facial and abdominal slapping, dietary manipulation, and dousing with cold water as low as 41 degrees. They allow shackling in a standing position for 180 hours, sleep deprivation for 11 days, confinement of people in small dark boxes with insects for hours, and waterboarding to create the perception they are drowning. Moreover, the memos permit many of these techniques to be used in combination for a 30-day period. They find that none of these techniques constitute torture or cruel, inhuman or degrading treatment.

Waterboarding, admittedly the most serious of the methods, is designed, according to Bybee, to induce the perception of “suffocation and incipient panic, i.e. the perception of drowning.” But although Bybee finds that “the use of the waterboard constitutes a threat of imminent death,” he accepts the CIA’s claim that it does “not anticipate that any prolonged mental harm would result from the use of the waterboard.” As psychologist Jeffrey Kaye points out, the CIA and the Justice Department “ignored a wealth of other published information” that indicates dissociative symptoms, changes greater than those in patients undergoing heart surgery, and drops in testosterone to castration levels after acute stress associated with techniques that the memos sanction.

The Torture Statute punishes conduct, or conspiracy to engage in conduct, specifically intended to inflict severe physical or mental pain or suffering. “Severe mental pain or suffering” means the prolonged mental harm caused by or resulting from either the intentional infliction or threatened infliction of severe physical pain or suffering, or from the threat of imminent death.

Bybee asserts that “if a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent.” He makes the novel claim that the presence of personnel with medical training who can stop the interrogation if medically necessary “indicates that it is not your intent to cause severe physical pain.”

Now a federal judge with lifetime appointment, Bybee concludes that waterboarding does not constitute torture under the Torture Statute. However, he writes, “we cannot predict with confidence whether a court would agree with this conclusion.”

The Bush administration claimed it only used waterboarding three times. But a footnote in one of Bradbury’s memos says waterboarding was utilized “with far greater frequency than initially indicated” with “large volumes of water” rather than small quantities as required by the CIA’s rules.

Bybee’s memo explains why the 10 techniques could be used on Abu Zubaydah, who was considered to be a top Al Qaeda operative. “Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from [the CIA’s] proposed interrogation methods,” the CIA told Bybee. But Zubaydah was a low-ranking Al Qaeda operative, according to leading FBI counter-terrorism expert Dan Coleman, who advised a top FBI official, “This guy is insane, certifiable, split personality.” This was reported by Ron Suskind in his book, The One Percent Doctrine.

The CIA’s request to confine Zubaydah in a cramped box with an insect was granted by Bybee, who told the CIA it could place a harmless insect in the box and tell Zubaydah that it will sting him but it won’t kill him. Even though the CIA knew that Zubaydah had an irrational fear of insects, Bybee found there would be no threat of severe physical pain or suffering if it followed this procedure.

Another noxious aspect of these memos is the use of medical professionals to enable the torture and cruel treatment. They are on hand to monitor the victims to make sure they come close to death, but don’t actually die. But the medical personnel may well allow the abuse to cause severe physical pain and do nothing to stop it until the victim reaches the point of impending death. One of Bradbury’s memos requires that a physician be on duty during waterboarding to perform a tracheotomy in case the victim doesn’t recover after being returned to an upright position.

Employing a standard used to measure due process violations, Bradbury concluded that “the CIA interrogation techniques, with their careful screening procedures and medical monitoring, do not ‘shock the conscience,’” and thus were not cruel, inhuman or degrading. It is difficult to imagine how the techniques described above would fail to shock the conscience of any human being.

Obama’s refusal to faithfully execute the law

The Constitution requires the President to enforce the law against both the petty thief who stole salmon from the market, and the CIA agent who tortured or abused a prisoner.

Our law prohibits torture and cruel, inhuman or degrading treatment, and requires that those who subject people to such treatment be prosecuted. The Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment compels us to refer all torture cases for prosecution or extradite the suspect to a country that will undertake a criminal investigation. The Geneva Conventions proclaim an “obligation” to bring those who have committed torture and cruel treatment before our “own courts.” The Torture Convention and the Geneva Conventions are both part of U.S. law under the Supremacy Clause of the Constitution, which says, “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” Two federal statutes – the Torture Statute and the War Crimes Act (torture is a war crime) – provide for life imprisonment and even the death penalty if the victim dies from torture.

Obama has made a political calculation to seek amnesty for the CIA torturers. He expressed his “intention” to protect people who relied in good faith on Justice Department advice. However, good faith reliance on superior orders was rejected as a defense at Nuremberg and in Lt. Calley’s Vietnam-era trial for the My Lai Massacre. The Torture Convention provides unequivocally, “An order from a superior officer or a public authority may not be invoked as a justification for torture.”

There is evidence that the CIA was using the illegal techniques as early as April 2002, three to four months before the August memo was written. That would eliminate “good faith” reliance on Justice Department advice as a “defense” to prosecution. And Obama did not say he favored amnesty for those who set the policy – which would include Cheney, Rumsfeld, Rice, Powell, Ashcroft and Gonzales who comprised the Principals Committee that authorized the torture and Bush who approved of it. Nor did Obama include in his intended amnesty the lawyers – like Yoo, Bybee, Bradbury, Addington and Haynes – whose opinions under girded the policy.

When ABC’s George Stephanopoulos asked Rahm Emanuel on Sunday, “What about the people who designed the policies?”, Emmanuel said the President doesn’t support their prosecution either.

But the decision about whether and who to prosecute is up to the Attorney General, Eric Holder. If Holder continues to carry out Obama’s political agenda by resisting investigations and prosecution, Congress can, and should, authorize the appointment of a special independent prosecutor to do what the law requires.

The Watergate scandal led to the enactment of the Ethics in Government Act. Three years after Richard Nixon resigned rather than face impeachment, President Carter asked Congress to pass a law authorizing the appointment of a special prosecutor to investigate and prosecute unlawful acts by high government officials. The bill empowered the attorney general to conduct a preliminary 90-day investigation when serious allegations arose involving a high government official.

Under the act, the attorney general could drop the investigation if he determined it was unsupported by the evidence. But if he found some merit to the charges, he was required to apply to a three-judge panel of federal court judges who would appoint a special prosecutor to investigate, prosecute, and issue a report. This procedure was used to appoint Kenneth Starr, whose witch hunt led to Bill Clinton’s impeachment. In reaction, Congress allowed the independent counsel statute to expire by its own terms in 1999. It’s time for the people to demand that Congress enact an independent counsel statute.

Universal jurisdiction

What happens if the United States government refuses to prosecute those who ordered, justified and carried out the torture and abuse? Other countries will launch criminal investigations of U.S. nationals under universal jurisdiction. See Spain Investigates What America Should [http://marjoriecohn.com/2009/04/spain-investigates-what-america-should.html].

Indeed prosecutors in Spain decided to file criminal charges against Yoo, Bybee, Gonzales, Haynes, Addington and Feith for torture. But in a rare move, Candido Conde-Pumpido, Spain’s attorney general, overruled the prosecutors’ decision, saying the case had “no merit” because the six men were not present when the abuse took place and it was up to the United States to prosecute.

Universal jurisdiction is used to prosecute foreign nationals when their own country refuses to prosecute. Adoph Eichmann, often called “the architect of the Holocaust,” was tried, convicted and executed by Israel for crimes unconnected to Israel. He orchestrated the deportations but was not necessarily present at the gas chambers when millions were murdered.

Curiously, Conde-Pumpido’s decision followed discussions between the U.S. and Spanish governments in which the Obama administration strongly suggested that charges against the six would be “inconvenient,” according to Scott Horton of Harpers. Apparently and unfortunately, Obama is following the same tack Bush took by pressuring countries to back down on universal jurisdiction prosecutions.

The Spanish case is not dead, however. Judge Baltasar Garzon, who issued the arrest warrant for Augusto Pinochet in 1998, still has the power to determine whether the case will proceed.

Ultimately, it is up to Obama to fulfill his constitutional duty to ensure that the laws are faithfully executed. As he seems inclined to shirk that duty, it is up to us to pressure him, and Congress to hold accountable, those who violate our laws. Obama said that “nothing will be gained by spending our time and energy laying blame for the past.” He is wrong. There is more to gain from upholding the rule of law. It will make future leaders think twice before they authorize the cruel, illegal treatment of other human beings.

April 7, 2009

Spain Investigates What America Should

A Spanish court has initiated criminal proceedings against six former officials of the Bush administration. John Yoo, Jay Bybee, David Addington, Alberto Gonzales, William Haynes and Douglas Feith may face charges in Spain for authorizing torture at Guantánamo Bay.

If arrest warrants are issued, Spain and any of the other 24 countries that are parties to European extradition conventions could arrest these six men when they travel abroad.

Does Spain have the authority to prosecute Americans for crimes that didn’t take place on Spanish soil?

The answer is yes. It’s called “universal jurisdiction.” Universal jurisdiction is a well-established theory that countries, including the United States, have used for many years to investigate and prosecute foreign nationals for crimes that shock the conscience of the global community. It provides a critical legal tool to hold accountable those who commit crimes against the law of nations, including war crimes and crimes against humanity. Without universal jurisdiction, many of the most notorious criminals would go free. Countries that have used this as a basis to prosecute the most serious of crimes should be commended for their courage. They help to create a just world in which we all seek to live.

Israel used universal jurisdiction to prosecute, convict and execute Adolph Eichmann for his crimes during the Holocaust, even they had no direct relationship with Israel.

A federal court in Miami recently convicted Chuckie Taylor, son of the former Liberian president, of torture that occurred in Liberia. A U.S. court sentenced Taylor to 97 years in prison in January.

Universal jurisdiction complements, but doesn’t supersede, national prosecutions. So if the United States were investigating the Bush officials, other countries would refrain from doing so.

When the United States ratified the Convention Against Torture, it promised to extradite or prosecute those who commit, or are complicit in, the commission of torture.

President Obama, when asked whether he favored criminal investigations of Bush officials, replied, “My view is also that nobody’s above the law and, if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen.”

“But,” he added, “generally speaking, I’m more interested in looking forward than I am in looking backward.” Preoccupied with the economy and two wars, Obama reportedly wants to wait before considering prosecutions that would invariably anger the GOP.

Evidence that Bush officials set a policy that led to the torture of prisoners at Guantánamo continues to emerge.

According to ABC News, Gonzales met with other officials in the White House and authorized torture, including waterboarding.

The Office of Professional Responsibility, which reports to the U.S. attorney general, drafted a report that excoriates Yoo and Bybee for writing the infamous torture memos. Haynes, Addington and Feith participated in decisions that led to torture. The release of additional graphic torture memos by the U.S. Department of Justice is imminent.

It is the responsibility of the United States to investigate allegations of torture. Almost two-thirds of respondents to a USA Today/Gallup Poll favor investigations of the Bush team for torture and warrantless wiretapping. Nearly four in 10 support criminal investigations.

Former Navy General Counsel Alberto Mora told Congress, “There are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq – as judged by their effectiveness in recruiting insurgent fighters into combat – are, respectively the symbols of Abu Ghraib and Guantánamo.” Providing impunity to those who ordered the torture will be the third recruiting tool.

If the United States refuses to investigate now, it will be more likely that some future administration will repeat this scenario. The use of torture should be purged from our system, much like we eradicated slavery.

March 4, 2009

Memos Provide Blueprint for Police State

Seven newly released memos from the Bush Justice Department reveal a concerted strategy to cloak the President with power to override the Constitution. The memos provide “legal” rationales for the President to suspend freedom of speech and press; order warrantless searches and seizures, including wiretaps of U.S. citizens; lock up U.S. citizens indefinitely in the United States without criminal charges; send suspected terrorists to other countries where they will likely be tortured; and unilaterally abrogate treaties. According to the reasoning in the memos, Congress has no role to check and balance the executive. That is the definition of a police state.

Who wrote these memos? All but one were crafted in whole or in part by the infamous John Yoo and Jay Bybee, authors of the so-called “torture memos” that redefined torture much more narrowly than the U.S. definition of torture, and counseled the President how to torture and get away with it. In one memo, Yoo said the Justice Department would not enforce U.S. laws against torture, assault, maiming and stalking, in the detention and interrogation of enemy combatants.

What does the federal maiming statute prohibit? It makes it a crime for someone “with the intent to torture, maim, or disfigure” to “cut, bite, or slit the nose, ear or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb or any member of another person.” It further prohibits individuals from “throwing or pouring upon another person any scalding water, corrosive acid, or caustic substance” with like intent.

The two torture memos were later withdrawn after they became public because their legal reasoning was clearly defective. But they remained in effect long enough to authorize the torture and abuse of many prisoners in U.S. custody.

The seven memos just made public were also eventually disavowed, several years after they were written. Steven Bradbury, the Principal Deputy Assistant Attorney General in Bush’s Department of Justice, issued two disclaimer memos – on October 6, 2008 and January 15, 2009 – that said the assertions in those seven memos did “not reflect the current views of this Office.” Why Bradbury waited until Bush was almost out of office to issue the disclaimers remains a mystery. Some speculate that Bradbury, knowing the new administration would likely release the memos, was trying to cover his backside.

Indeed, Yoo, Bybee and Bradbury are the three former Justice Department lawyers that the Office of Professional Responsibility singled out for criticism in its still unreleased report. The OPR could refer these lawyers for state bar discipline or even recommend criminal charges against them.

In his memos, Yoo justified giving unchecked authority to the President because the United States was in a “state of armed conflict.” Yoo wrote, “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” Yoo made the preposterous argument that since deadly force could legitimately be used in self-defense in criminal cases, the President could suspend the Fourth Amendment because privacy rights are less serious than protection from the use of deadly force.

Bybee wrote in one of the memos that nothing can stop the President from sending al Qaeda and Taliban prisoners captured overseas to third countries, as long as he doesn’t intend for them to be tortured. But the Convention Against Torture, to which the United States is a party, says that no country can expel, return or extradite a person to another country “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Bybee claimed the Torture Convention didn’t apply extraterritorially, a proposition roundly debunked by reputable scholars. The Bush administration reportedly engaged in this practice of extraordinary rendition 100 to 150 times as of March 2005.

The same day that Attorney General Eric Holder released the memos, the government revealed that the CIA had destroyed 92 videotapes of harsh interrogations of Abu Zubaida and Abd al Rahim al Nashiri, both of whom were subjected to waterboarding. The memo that authorized the CIA to waterboard, written the same day as one of Yoo/Bybee’s torture memos, has not yet been released.

Bush insisted that Zubaida was a dangerous terrorist, in spite of the contention of one of the FBI’s leading al Qaeda experts that Zubaida was schizophrenic, a bit player in the organization. Under torture, Zubaida admitted to everything under the sun – his information was virtually worthless.

There are more memos yet to be released. They will invariably implicate Bush officials and lawyers in the commission of torture, illegal surveillance, extraordinary rendition, and other violations of the law.

Meanwhile, John Yoo remains on the faculty of Berkeley Law School and Jay Bybee is a federal judge on the Ninth Circuit Court of Appeals. These men, who advised Bush on how to create a police state, should be investigated, prosecuted, and disbarred. Yoo should be fired and Bybee impeached.

February 20, 2009

War Criminals, Including Their Lawyers, Must Be Prosecuted

Since he took office, President Obama has instituted many changes that break with the policies of the Bush administration. The new president has ordered that no government agency will be allowed to torture, that the U.S. prison at Guantánamo will be shuttered, and that the CIA’s secret black sites will be closed down. But Obama is non-committal when asked whether he will seek investigation and prosecution of Bush officials who broke the law. “My view is also that nobody’s above the law and, if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen,” Obama said. “But,” he added, “generally speaking, I’m more interested in looking forward than I am in looking backwards.” Obama fears that holding Team Bush to account will risk alienating Republicans whom he still seeks to win over.

Obama may be off the hook, at least with respect to investigating the lawyers who advised the White House on how to torture and get away with it. The Office of Professional Responsibility (OPR) has written a draft report that apparently excoriates former Justice Department lawyers John Yoo, Jay Bybee and Stephen Bradbury, authors of the infamous torture memos, according to Newsweek’s Michael Isikoff. OPR can report these lawyers to their state bar associations for possible discipline, or even refer them for criminal investigation. Obama doesn’t have to initiate investigations; the OPR has already launched them, on Bush’s watch.

The smoking gun that may incriminate George W. Bush, Dick Cheney, et al., is the email traffic that passed between the lawyers and the White House. Isikoff revealed the existence of these emails on The Rachel Maddow Show. Some maintain that Bush officials are innocent because they relied in good faith on legal advice from their lawyers. But if the president and vice president told the lawyers to manipulate the law to allow them to commit torture, then that defense won’t fly.

A bipartisan report of the Senate Armed Services Committee found that “senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.”

Cheney recently admitted to authorizing waterboarding, which has long been considered torture under U.S. law. Donald Rumsfeld, Condoleezza Rice, George Tenet, Colin Powell, and John Ashcroft met with Cheney in the White House basement and authorized harsh interrogation techniques, including waterboarding, according to an ABC News report. When asked, Bush said he knew about it and approved.

John Yoo wrote in a Wall Street Journal oped that Bush “could even authorize waterboarding, which he did three times in the years after 9/11.”

A representative of the Justice Department promised that OPR’s report would be released sometime last November. But Bush’s attorney general Michael Mukasey objected to the draft. A final version will be presented to Attorney General Eric Holder. The administration will then have to decide whether to make it, and the emails, public and then how to proceed.

When the United States ratified the Convention Against Torture, we promised to extradite or prosecute those who commit, or are complicit in the commission, of torture. We have two federal criminal statutes for torture prosecutions – the Torture Statute and the War Crimes Act (torture is considered a war crime under U.S. law). The Torture Convention is unequivocal: nothing, including a state of war, can be invoked as a justification for torture.

Yoo redefined torture much more narrowly than U.S. law provides, and counseled the White House that it could evade prosecution under the War Crimes Act by claiming self-defense or necessity. Yoo knew or should have known of the Torture Convention’s absolute prohibition of torture.

There is precedent for holding lawyers criminally liable for giving legally erroneous advice that resulted in great physical or mental harm or death. In U.S. v. Altstoetter, Nazi lawyers were convicted of war crimes and crimes against humanity for advising Hitler on how to “legally” disappear political suspects to special detention camps.

Almost two-thirds of respondents to a USA Today/Gallup Poll favor investigations of the Bush team for torture and warrantless wiretapping. Nearly four in 10 favor criminal investigations. Cong. John Conyers has introduced legislation to establish a National Commission on Presidential War Powers and Civil Liberties. Sen. Patrick Leahy advocates for a Truth and Reconciliation Commission; but this is insufficient. TRC’s are used for nascent democracies in transition. By giving immunity to those who testify before them, it would ensure that those responsible for torture, abuse and illegal spying will never be brought to justice.

Attorney General Eric Holder should appoint a Special Prosecutor to investigate and prosecute high Bush officials including lawyers like John Yoo who gave them “legal” cover. Obama is correct when he said that no one is above the law. Accountability is critical to ensuring that our leaders never again torture and abuse people.

February 11, 2009

A Call to End All Renditions

Binyam Mohamed, an Ethiopian residing in Britain, said he was tortured after being sent to Morocco and Afghanistan in 2002 by the U.S. government. Mohamed was transferred to Guantánamo in 2004 and all terrorism charges against him were dismissed last year. Mohamed was a victim of extraordinary rendition, in which a person is abducted without any legal proceedings and transferred to a foreign country for detention and interrogation, often tortured.

Mohamed and four other plaintiffs are accusing Boeing subsidiary Jeppesen Dataplan, Inc. of flying them to other countries and secret CIA camps where they were tortured. In Mohamed’s case, two British justices accused the Bush administration of pressuring the British government to block the release of evidence that was “relevant to allegations of torture” of Mohamed.

Twenty-five lines edited out of the court documents included details about how Mohamed’s genitals were sliced with a scalpel as well as other torture methods so extreme that waterboarding “is very far down the list of things they did,” according to a British official quoted by the Telegraph (UK).

The plaintiffs’ complaint quotes a former Jeppesen employee as saying, “We do all of the extraordinary rendition flights – you know, the torture flights.” A senior company official also apparently admitted the company transported people to countries where they would be tortured.

Obama’s Justice Department appeared before a three-judge panel of the Ninth U.S. Circuit Court of Appeals Monday in the Jeppesen lawsuit. But instead of making a clean break with the dark policies of the Bush years, the Obama administration claimed the same “state secrets” privilege that Bush used to block inquiry into his policies of torture and illegal surveillance. Claiming that the extraordinary rendition program is a state secret is disingenuous since it is has been extensively documented in the media.

“This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course,” said the ACLU’s Ben Wizner, counsel for the five men.

If the judges accept Obama’s state secrets claim, these men will be denied their day in court and precluded from any recovery for the damages they suffered as a result of extraordinary rendition.

Two and a half weeks before Obama’s representative appeared in the Jeppesen case, the new President had signed Executive Order 13491. It established a special task force “to study and evaluate the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control.”

This order prohibits extraordinary rendition. It also ensures humane treatment of persons in U.S. custody or control. But it doesn’t specifically guarantee that prisoners the United States renders to other countries will be free from cruel, inhuman or degrading treatment that doesn’t amount to torture. It does, however, aim to ensure that our government’s practices of transferring people to other countries complies with U.S. laws and policies, including our obligations under international law.

One of those laws is the International Covenant on Civil Political Rights (ICCPR), a treaty the United States ratified in 1992. Article 7 of the ICCPR prohibits the States Parties from subjecting persons “to torture or to cruel, inhuman, or degrading treatment or punishment.” The Human Rights Committee, which is the body that monitors the ICCPR, has interpreted that prohibition to forbid States Parties from exposing “individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.”

Order 13491 also mandates, “The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future.” The order does not define “expeditiously” and the definitional section of the order says that the terms ‘detention facilities’ and ‘detention facility’ “do not refer to facilities used only to hold people on a short-term, transitory basis.” Once again, “short term” and “transitory” are not defined.

In his confirmation hearing, Attorney General Eric Holder categorically stated that the United States should not turn over an individual to a country where we have reason to believe he will be tortured. Leon Panetta, nominee for CIA director, went further and interpreted Order 13491 as forbidding “that kind of extraordinary rendition, where we send someone for the purposes of torture or for actions by another country that violate our human values.”

But alarmingly, Panetta appeared to champion the same standard used by the Bush administration, which reportedly engaged in extraordinary rendition 100 to 150 times as of March 2005. After September 11, 2001, President Bush issued a classified directive that expanded the CIA’s authority to render terrorist suspects to other States. Former Attorney General Alberto Gonzales said the CIA and the State Department received assurances that prisoners will be treated humanely. “I will seek the same kinds of assurances that they will not be treated inhumanely,” Panetta told the senators.

Gonzales had admitted, however, “We can’t fully control what that country might do. We obviously expect a country to whom we have rendered a detainee to comply with their representations to us . . . If you’re asking me, ‘Does a country always comply?’ I don’t have an answer to that.”

The answer is no. Binyam Mohamed’s case is apparently the tip of the iceberg. Maher Arar, a Canadian born in Syria, was apprehended by U.S. authorities in New York on September 26, 2002, and transported to Syria, where he was brutally tortured for months. Arar used an Arabic expression to describe the pain he experienced: “you forget the milk that you have been fed from the breast of your mother.” The Canadian government later exonerated Arar of any terrorist ties. Thirteen CIA operatives were arrested in Italy for kidnapping an Egyptian, Abu Omar, in Milan and transporting him to Cairo where he was tortured.

Panetta made clear that the CIA will continue to engage in rendition to detain and interrogate terrorism suspects and transfer them to other countries. “If we capture a high-value prisoner,” he said, “I believe we have the right to hold that individual temporarily to be able to debrief that individual and make sure that individual is properly incarcerated.” No clarification of how long is “temporarily” or what “debrief” would mean.

When Sen. Christopher Bond (R-Mo.) asked about the Clinton administration’s use of the CIA to transfer prisoners to countries where they were later executed, Panetta replied, “I think that is an appropriate use of rendition.” Jane Mayer, columnist for the New Yorker, has documented numerous instances of extraordinary rendition during the Clinton administration, including cases in which suspects were executed in the country to which the United States had rendered them. Once when Richard Clarke, President Clinton’s chief counter-terrorism adviser on the National Security Council, “proposed a snatch,” Vice-President Al Gore said, “That’s a no-brainer. Of course it’s a violation of international law, that’s why it’s a covert action. The guy is a terrorist. Go grab his ass.”

There is a slippery slope between ordinary rendition and extraordinary rendition. “Rendition has to end,” Michael Ratner, president of the Center for Constitutional Rights, told Amy Goodman on Democracy Now! “Rendition is a violation of sovereignty. It’s a kidnapping. It’s force and violence.” Ratner queried whether Cuba could enter the United States and take Luis Posada, the man responsible for blowing up a commercial Cuban airline in 1976 and killing 73 people. Or whether the United States could go down to Cuba and kidnap Assata Shakur, who escaped a murder charge in New Jersey.

Moreover, “renditions for the most part weren’t very productive,” a former CIA official told the Los Angeles Times. After a prisoner was turned over to authorities in Egypt, Jordan or another country, the CIA had very little influence over how prisoners were treated and whether they were ultimately released.

The U.S. government should disclose the identities, fate, and current whereabouts of all persons detained by the CIA or rendered to foreign custody by the CIA since 2001. Those who ordered renditions should be prosecuted. And the special task force should recommend, and Obama should agree to, an end to all renditions.