March 29, 2024 / by 

 

About those Missing OLC Opinions

(Note: I’m scheduled to be on Mark Levine’s Inside Scoop today at 5PM ET. You can listen in here.)

Okay okay already. Here’s your damn missing OLC opinion post.

As a number of you have pointed out, ProPublica did a very cool database of all the OLC opinions on executive power, torture, and warrantless wiretapping that we know of. The database collects in one place, in sortable form, the opinions that track Bush’s abuse of power. 

I had done a timeline mapping the warrantless wiretap opinions to known events associated with Bush’s illegal program (though it’s not sortable like the ProPublica one). And don’t forget that John Conyers gave us a very detailed description of that opinion eliminating the 4th Amendment.

The memorandum, which was directed to White House Counsel Alberto Gonzales and Defense Department General Counsel William J. Haynes, addresses whether the president has constitutional or statutory authority to use military force inside the United States in terrorism-related situations and, if so, whether such domestic military operations would be barredby either the Fourth Amendment or the federal Posse Comitatus statute. Examples of the type of force considered for purposes of the analysis include, but are not limited to: (1) destroying civilian aircraft that are believed to have been hijacked; (2) deploying troops to control traffic in and out of a major American city; (3) seizing or attacking civilian property, such as apartment buildings, office complexes, or ships, believed to contain terrorism suspects; and, (4) using military-level eavesdropping and surveillance technology on domestic targets.

Mr. Yoo and Mr. Delahunty concluded that both Article II of the Constitution and the 9/11 use of force resolution would authorize these types of domestic military operations (even though Congress had expressly rejected language proposed by the Administration for the AUMF that would have authorized domestic military operations).292 The memorandum also contains extended discussion of a hypothetical example which posits that a domestic military commander has received information, not rising to the level of probable cause, suggesting that a terrorist has hidden inside an apartment building and may possess weapons of mass destruction. According to the memorandum, not only does the Constitution permit the commander to seize the building, detain everyone found inside, and then interrogate them – all without obtaining any sort of warrant – but information gathered by military commanders in this way could used for criminal prosecution purposes as long as the primary reason for the seizure was the military fight against terrorism and not law enforcement. This memorandum was referenced in a subsequent OLC memorandum for the legal conclusion “that the Fourth Amendment had no application to domestic military operations.”293 [my emphasis]

I had not, however, closely reviewed the ACLU’s list of torture opinions (which is what ProPublica based this on–and don’t forget ACLU has gotten badly stung in the economic crash and could use some love). 

The most intriguing of those opinions is this one:

8/1/02 Jay S. Bybee, Assistant Attorney General, OLC, Determines whether a specific interrogation was torture

Remember, John Ascroft has all but admitted that they started tortuing Abu Zubaydah before the August 1, 2002 Bybee/Yoo memo authorizing water-boarding was completed. I guess while they were troubling Bybee and Yoo, they got them to retroactively declare the torture of Abu Zubaydah not torture.

Curiously, though, they’re still unwillingly to charge Abu Zubaydah and let him speak publicly. I guess that particular memo presumably retroactively authorizing torture isn’t all that sound.


Did Holder Promise No Prosecutions?

As I posted, both Sheldon Whitehouse and Pat Leahy suggest that–even though John Cornyn and others made an inappropriate demand that Holder promise not to prosecute any Bushies–Holder did not make that promise.

But right as that came out, the Moonie Times came out with a Kit Bond interview claiming that Holder had made such promises. (h/t Wigwam)

President Obama’s choice to run the Justice Department has assured senior Republican senators that he won’t prosecute intelligence officers or political appointees who were involved in the Bush administration’s policy of "enhanced interrogations."

Sen. Christopher "Kit" Bond, a Republican from Missouri and the vice chairman of the Senate Select Committee on Intelligence, said in an interview with The Washington Times that he will support Eric H. Holder Jr.’s nomination for Attorney General because Mr. Holder assured him privately that Mr. Obama’s Justice Department will not prosecute former Bush officials involved in the interrogations program.

Mr. Holder’s promise apparently was key to moving his nomination forward. Today, the Senate Judiciary Committee voted 17-2 to favorably recommend Holder for the post. He is likely to be confirmed by the Senate soon.

Sen. Bond also said that Mr. Holder told him in a private meeting Tuesday that he will not strip the telecommunications companies that cooperated with the National Security Agency after the Sept. 11, 2001, attacks of retroactive legal immunity from civil lawsuits–removing another potential sticking point among GOP senators.

In the interview Wednesday, Mr. Bond said, "I made it clear that trying to prosecute political leaders would generate a political firestorm the Obama administration doesn’t need."[my empahsis]

Mind you, I’m not holding my breath for any big prosecutions from the Obama Administration, given his repeated calls to move forward.

That said, I suspect Kit Bond is spinning Holder’s clear statements with regards to those who implemented Bush’s policies into statements about those who crafted Bush’s policies.

Note how Holder answered this question in written RFQs:

Mr. Holder indicated that he would not prosecute any intelligence officers who participated in the interrogation program and who had followed Justice Department guidance.

Prosecutorial and investigative judgments must depend on the facts and no one is above the law, Mr. Holder wrote. But where it is clear that a government agent has acted in ‘reasonable and good faith reliance on Justice Department legal opinions’ authoritatively permitting his conduct, I would find it difficult to justify commencing a full blown criminal investigation, let alone a prosecution.[my empahsis]

Holder gave written assurances about those who relied on John Yoo’s crappy opinions. That’s basically what Arlen Specter said Holder had said in assurances to other Republicans. 

"The gist of" Holder’s stance on the issue, Specter told [TPM’s Elena Schor], "is that if you have an authoritative legal opinion, that’s a defense in terms of mens rea, of intent. That’s a broad generalization. I don’t think you can go any further than that until you examine the specific facts of a case."

But now Kit Bond is out there saying Holder gave him assurances about not just "intelligence officers" (which is what he said in his written response) but "political appointees" and, later, "political leaders."

Now, maybe Holder really did say he wouldn’t go after people like John Yoo and Dick Cheney and others who deliberately violated national and international law. But I think it just as likely (and more typical of Holder’s legalistic style) that Kit Bond is talking out of his ass to pressure Holder to avoid looking into the actions of Bush and Cheney. Hell. Holder hasn’t even been read into the illegal wiretapping program yet. It would be the easiest thing in the world for him to say, "Well, I had no idea that Bush deliberately violated Congress’ law prohibiting any funds from being spent on TIA" if he were to pursue charges.

But if anyone else has any doubts that the Republicans are primarily worried about protecting Bush and Cheney for their law-breaking while President and Vice President, I guess Kit Bond has put that doubt to rest. 

Update: JimWhite had a very productive call with Pat Leahy’s office on this. But since his call with Bond’s office was considerably less productive, I agree with JimWhite that Bond might need to hear from a few more Americans who believe Senate votes should not be premised on promises of non-prosecution. If you’d like to join in, Bond’s office is (202) 224-5721. (Apparently you’re not the only caller trying to give Bond a piece of your mind, so be persistent.)

Also, see Spencer on this as well. 


Scottish Haggis Lives Up to the Name, Backs Holder

Say, are you the least bit surprised that Arlen "Scottish Haggis" Specter has lived up to his name? As in "offal" and "sheep"? Once again? (h/t BSL)

 After making a huge fuss questioning the independence of Eric Holder, Specter just caved and said he’ll support the attorney general nominee.

"I can say with some confidence that there won’t be a successful filibuster," Specter told reporters at a press conference gathered to share his thoughts on Holder in advance of tomorrow’s Judiciary panel vote on the nominee.

Specter added that the strong recommendations Holder received from former FBI director Louis Freeh and former DoJ No. 2 James Comey were influential in swaying his vote.

"At no time did I challenge Mr. Holder’s integrity," the Pennsylvania senator concluded. (But he sure came close, according to Holder himself.) "It was a question of judgment."

Speaking of judgment, Holder also has resolved — to Specter’s satisfaction, at least — the GOP demand that he promise not to prosecute Bush administration intelligence officials who engaged in brutal interrogations at Guantanamo Bay and elsewhere.

"The gist of" Holder’s stance on the issue, Specter told me, "is that if you have an authoritative legal opinion, that’s a defense in terms of mens rea, of intent. That’s a broad generalization. I don’t think you can go any further than that until you examine the specific facts of a case."]

So the kabuki is off, as of tomorrow.

Well, that was nice. NOW can we get back to the business of governing again, little GOP boys?


What Jane Mayer Tells Us about Warrantless Wiretapping

Jane Mayer’s excellent piece on Obama’s Executive Orders banning torture is about just that–the end of the torture regime. (Incidentally, kudos to Greg Craig, whom I beat up yesterday, for giving his first interview to Mayer.) But it offers some useful insight on a debate we’ve been having over the last couple of days–whether or not Obama could have intervened in the al-Haramain trial (and other pending litigation on warrantless wiretapping) in the same way he intervened in the pending habeas petitions.

First, off, Mayer confirms a point I made–that Obama was not about to take on the most politically charged legal decisions in his first day in office.

Moreover, Craig noted in his first White House interview that the reforms were not finished yet and that Obama had deliberately postponed several of the hardest legal questions. Craig said that, as he talked with the president before the signing ceremony, Obama was “very clear in his own mind about what he wanted to accomplish, and what he wanted to leave open for further consultation with experts.”

Obviously, one of those questions is how to approach legal consequences for those who ordered torture–or warrantless wiretapping. The EOs Obama signed last week don’t commit him to an approach on that score. Furthermore, he seems inclined to insulate himself from such decisions by putting them in the hands of Eric Holder, to make it a prosecutorial decision. Though Holder has intimated he’d hold both the architects of our torture regime and of our warrantless wiretapping responsible (lucky for him, he could do it all in a giant 2-for-1 deal), I’m not holding my breath on that score. But we won’t know what he’ll do until he becomes Attorney General.

That said, Mayer makes it clear just how much lobbying has gone into Obama’s evolving policy on torture.  She describes a meeting that must have taken place in December 2007 or January 2008 with a bunch of officers–including four star Generals–at which the officers lobbied Obama to end our torture regime. That high-level lobbying continued up until last month. Mayer specifically describes the role of retired Marine General Chuck Krulak who promised to "fly cover" for the Obama Administration after they pushed this through.

Who, might I ask, is doing similar lobbying to restore civil liberties for Americans?

Oh, I know there has been similar lobbying–on the part of civil liberties groups, high profile individuals, and DFH bloggers like you and me. But do we have a Chuck Krulak who will take on those who insist the restoration of our civil liberties (and the prosecution of those who took those liberties away) will be big gift to Osama bin Laden?

And frankly, if there hasn’t been this kind of high level lobbying, what guarantee do we have that Obama is as cognizant of the proceedings before Vaughn Walker as he was of the timing of al-Marri’s case?

And finally, Mayer’s piece raises the question of who is arguing against the efficacy of widespread wiretapping and data mining? She describes a meeting at which high level intelligence advisors confirmed what we all know–that ending torture will not affect our ability to collect intelligence at all.

During the transition period, unknown to the public, Obama’s legal, intelligence, and national-security advisers visited Langley for two long sessions with current and former intelligence-community members. They debated whether a ban on brutal interrogation practices would hurt their ability to gather intelligence, and the advisers asked the intelligence veterans to prepare a cost-benefit analysis. The conclusions may surprise defenders of harsh interrogation tactics. “There was unanimity among Obama’s expert advisers,” Craig said, “that to change the practices would not in any material way affect the collection of intelligence.”

It’s not that we can’t make a similar argument about efficacy. Almost as soon as reports of the program came out, reports of the thousands of hours wasted on "Pizza Hut" leads came out.  The US doesn’t have the means to adequately sort through all the data they’re gathering, and they certainly don’t have algorithms that are effective at picking out the terrorists from the haystacks.

But who is making that argument with us?

And it goes without saying that the telecom lobby–which has made a bucketload of money illegally spying on Americans–will be hyping the efficacy of doing so on its part.

All of which goes to show that–even for the noted efforts with Obama’s own facebook infrastructure–we probably don’t have the political might yet that is behind the fight against torture. That may mean we’ll just have to wait until Obama gets around to it, or it may mean we will lose the fight. But we need to be cognizant of what has worked to get Obama’s opposition to toture where it is.


Carl Levin on Torture Investigation

As I reported earlier, when Senator Reid spoke at Progressive Media Summit, he stated that he supported investigations of BushCo wrong-doing, even stating he was increasing the budget for such investigations. He specifically mentioned that Senator Levin would be doing some such investigation.

Here’s Senator Levin’s response. It sounds like Levin’s investigation is primarily his SASC investigation on torture. 

In good news, though, Levin’s committee should be releasing the full report in short order.


President Obama Officially Halts GITMO Show Trials

President Obama has ordered an abrupt halt in the Gitmo Show Trials. From Peter Finn at the Washington Post:

In one of its first actions, the Obama administration instructed military prosecutors late Tuesday to seek a 120-day suspension of legal proceedings involving detainees at the naval base at Guantanamo Bay, Cuba — a clear break with the approach of the outgoing Bush administration.

The instruction came in a motion filed late Tuesday with a military court handling the case of five defendants accused of organizing the Sept. 11, 2001, attacks on the United States. The motion called for "a continuance of the proceedings" until May 20 so that "the newly inaugurated president and his administration [can] review the military commissions process, generally, and the cases currently pending before military commissions, specifically."

In the legal field, this is known as an act taken "in the interests of justice". An incredibly welcome move by an administration literally only hours into its initial term. You have to hand it to President Obama, Guantanamo is a sensitive topic, especially with the neocon screechers, yet he proved the courage of his convictions and acted immediately upon being sworn in.

It appears that the action was foreshadowed at Camp Delta, as Carol Rosenberg of McClatchy already had reported, even before Obama was sworn in, that the trial of Omar Khadr had been put on hold:

A military judge on Tuesday postponed next week’s trial of Canadian captive Omar Khadr, easing pressure on the new occupant of the White House to make a swift decision on military commissions.

Until Tuesday, the Khadr case was shaping up to be an early test of Obama’s pledge to close the prison camps.

But Parrish’s indefinite delay — he set no new trial date — also derailed Pentagon plans to airlift a jury panel of U.S. military officers to this remote base this weekend.

The stay of all proceedings at Guantanamo for at least 120 days is, as stated, wonderful news; however, the better question is what it portends for the future disposition of the legal cases of the detainees including Khalid Sheik Mohammed and his co-defendants accused of organizing the 9/11 attacks.

Notably, the defense teams do not appear quite as thrilled as one might would expect by the move, citing fears that the government is simply trying to clean up the tribunal process minimally in order to continue on. Lt. Cmdr. William Kuebler, who represents Khadr, said:

“It appears to be an ongoing last ditch effort to save this disgusting mess,” he told The Associated Press.
….
Kuebler says the defense wants to have all pending charges formally withdrawn by the Department of Defense and says they could be refiled again under the military courts martial system or in civilian courts. The military has charges pending against 21 men.

“That’s the only way you effectively freeze the system,” he said.

Ultimately, of course, Kuebler is correct. But I think President Obama is headed in the right direction here, and immediately entered an interim order to buy the necessary time and headroom to sort through the mess and provide for the correct adjudication process, exactly as Kuebler seeks.

Less than 24 hours in, and already justice feels cleaner, less politicized and more equitable. Booyah!

[ERRATA UPDATE: As skdadl points out in comments, I may not have been clear enough that while Khadr’s lawyer William Kuebler objects to the delay that will be occasioned by the motion Obama caused the prosecution to lodge, Kuebler’s objection was technically made in response to a directly analogous delay specific to Khadr’s case that was at issue hours before Obama’s general action.]


Coach Bush is 3-23 In Real Courts On Gitmo Show Trials; Katyal, The Hero Of Hamdan, To Join Obama Administration

If your local football coach was 3 wins and 23 losses for the season, you could rest assured of two things; one, you are a Detroit Lions fan and, two, the coach is getting fired. Well, there was an interesting little article that was published in today’s New York Times, and the upshot is that 3 and 23 is exactly what the Bush/Cheney regime’s record is when their Guantanamo Detainee cases see the sunshine of a real court. Clearly we have pretty much been endlessly detaining a lot of innocuous people on unsubstantiated evidence.

Describing the release last weekend of Haji Bismullah, an Afghan detainee held at Guantánamo Bay for nearly six years, the Times notes:

The decision was part of a pattern that has emerged in the closing chapter of the administration. In the last three months, at least 24 detainees have been declared improperly held by courts or a tribunal — or nearly 10 percent of the population at the detention camp in Guantánamo Bay, Cuba, where about 245 men remain.

While Mr. Bismullah’s case was decided by a military panel, the rulings for the other 23 detainees occurred in habeas corpus hearings in federal court. Since a Supreme Court decision in June gave detainees the right to have their detentions reviewed by federal judges in habeas cases, the government has won only three of them.

Get that?? 3 and 23. Not. Real. Good. Certainly puts the lie to Cheney and Bush’s promises that they were holding only the "worst of the worst" after all these years doesn’t it?

The cases provide a snapshot of the intelligence collected by the government on the suspects and suggest that there was little credible evidence behind the decision to declare some of the men enemy combatants and to hold them indefinitely.

“The government’s failure in case after case after case to be able to prove its case calls into question everybody who is there,” said Susan Baker Manning, a lawyer for 17 Uighur detainees from western China who were ordered released by a federal judge in October. The Justice Department has appealed that order from a federal district judge, Ricardo M. Urbina, and the men are still at Guantánamo.

Well, I guess, as shocking as it is, this is not exactly breaking news anymore. The brittle patina of legitimacy and credibility, to the extent there ever was any, began to crack with the first major court decision on the Bush/Cheney/Rumsfeld military commission process , Hamdan v. Rumsfeld, was decided. In that regard, there is excellent news to report.

Neal Katyal, Professor of National Security Law at Georgetown University Law Center and lead counsel in the Supreme Court on Hamdan v. Rumsfeld, has been chosen to be the Obama Administration’s Principal Deputy Solicitor General, the office’s No. 2 spot, according to the Legal Times.

Katyal’s appointment is another strong signal of President-elect Barack Obama’s intentions to depart sharply from the terrorist detention and interrogation policies of the Bush administration. In Hamdan, the Supreme Court found that the Bush administration’s military commissions for trying suspected terrorists violated the Uniform Code of Military Justice and the Geneva Conventions.

Unlike the nominee for solicitor General, Elena Kagan, Katyal does have experience before the Supreme Court, but not exactly a wealth of it. Nevertheless, the fact that Obama has chosen Kagan and Katyal to lead the SG’s Office sends a clear and unmistakable message that massive change is underway, and that it is in the opposite direction from the unconscionable and immoral policies of torture set by the Bush/Cheney regime. Welcome news indeed.


Obama, The Crawford Torture Admission & The Army Field Manual Lie

dbamericasafe

In an earlier post I discussed the startling direct admission that the United States tortures terror detainees made public in last Wednesday’s blockbuster Bob Woodward piece in the Washington Post. As the Bush Administration’s hand picked convening authority for the military tribunals, otherwise known as the "Gitmo Show Trials", Susan Crawford’s admission carries the binding mark of credibility.

In this post, I want to explain the troublesome ramifications Crawford’s admission carries for the provisions in the Army Field Manual regarding the treatment and interrogation of detainees. And the Army Field Manual is a singularly important frame of reference because President-Elect Barack Obama famously staked his claim to being a torture reformer during the election by promising to restrict US detainee interrogation techniques to those contained in the Army Field Manual. President-Elect Obama is holding true to his word.

The proposal Obama is considering would require all CIA interrogators to follow conduct outlined in the U.S. Army Field Manual, the officials said.

However, Obama’s changes may not be absolute. His advisers are considering adding a classified loophole to the rules that could allow the CIA to use some interrogation methods not specifically authorized by the Pentagon, the officials said.

This is where Susan Crawford’s stark admission comes into play. As Crawford admits, most all of the techniques used on al-Qahtani were actually permissible, but the layering of techniques compounded them into unmistakable torture.

Crawford, 61, said the combination of the interrogation techniques, their duration and the impact on Qahtani’s health led to her conclusion. "The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture, she said.

Crawford has exposed to bright sunlight the lie that is Barack Obama’s, and other politicians’, simple minded reliance on the Army Field Manual as cover for their torture reform credentials. Interrogators can stay completely within the Army manual and still be engaging in clear, unequivocal torture under national and international norms, laws and conventions.

The case is laid out convincingly by Dr. Jeffrey S. Kaye, a clinical psychologist specializing in the analysis and treatment of torture victims. Dr. Kaye has been tirelessly fighting the US torture regime through both his clinical work and his blog Invictus under the pseudonym Valtin. In a comprehensive article originally published at AlterNet, and cross-posted at Invictus, he filets open the Army Field Manual lie.

In early September 2006, the U.S. Department of Defense, reeling from at least a dozen investigations into detainee abuse by interrogators, released Directive 2310.01E. This directive was advertised as an overhaul and improvement on earlier detainee operations and included a newly rewritten Army Field Manual for Human Intelligence Collector Operations (FM-2-22-3). This guidebook for interrogators was meant to set a humane standard for U.S. interrogators worldwide, a standard that was respectful of the Geneva Conventions and other U.S. and international laws concerning treatment of prisoners.

There was only one problem: the AFM did not eliminate torture. Despite what it said, it did not adhere to the Geneva Conventions. Even worse, it took the standard operating procedure of Camp Delta at Guantanamo Bay and threatened to expand it all over the world.

The viral instructions in the AFM transform into an abusive and illegal torture program. Most of these "instructions" can be found hidden in the proverbial fine print of the document, in its very last appendix, labeled with no apparent irony as regards the mythology of James Bond, Appendix M.

Appendix M, titled "Restricted Interrogation Technique — Separation," misrepresents itself from the very beginning. (One wonders if it was rewritten from an earlier draft, at a time when the Pentagon wanted to keep these procedures classified.) It is not actually a technique (singular), but a set of techniques, though one has to read deeply into its 10 pages of text and be somewhat sophisticated in the history of psychological torture procedures, to assemble a full view of the viral program.

This program is nothing less than the one established in researcher Albert Biderman’s Chart of Coercion, which, as revealed by the recent Senate Armed Services Committee investigation into detainee abuse, was the blueprint used by SERE instructors at Guantanamo in late 2002 to teach abusive interrogation techniques. (SERE stands for Survival, Evasion, Resistance, Escape and is the military program to "inoculate" certain military personnel against torture or abusive treatment by an enemy that doesn’t recognize Geneva protocol.)

What kind of procedures, which the manual avers cannot be used on regular prisoners of war (who are covered by the Geneva Convention Relative to the Treatment of Prisoners of War), make up this special interrogation "technique," separation? In fact, it includes the following: solitary confinement, perceptual or sensory deprivation, sleep deprivation, the induction of fear and hopelessness, and the likely use of sensory overload, temperature or environmental manipulation, and any number of other techniques permitted elsewhere in the AFM, such as "Emotional Pride Down." As at Guantanamo and at prisons in Iraq and Afghanistan, a "multidisciplinary" team implements the program, including a behavioral science consultant (likely a psychologist).

This is the lie. The Army Field Manual provisions, especially with those pesky footnotes like "Appendix M", leave a wide open path for torture. And this is exactly what Susan Crawford directly admitted to Bob Woodward. This is a significant problem, the very torture, and modalities thereof, that are so abhorrent are about to be ratified and enshrined into the ethos of the new Obama Administration. What is worse is that the media and the country as a whole are biting off on the proposition that the torture regime is being slain in the process, and that is simply not the case.

The Guantanamo virus is spreading. Its agent is Appendix M of the Army Field Manual. It will be very difficult to eradicate. It will require the effort of every person who believes in human rights and is opposed to torture to spread the word.

The AFM as constituted must not be made the "one national standard" until the virus is eradicated. Appendix M must be rescinded in its totality, and portions of the document, such as the section on Fear Up, rewritten. Otherwise, Bush’s and Rumsfeld’s attempt to sneak coercive methods of interrogation into the main document of human intelligence gathering used by the military will succeed.

Not all is bleak here. There is no question but that Obama and his team will have better policies and intentions than the Bush wrecking crew. That is a given. The mere desire to do better is a welcome improvement on the bellicose belligerence of George Bush and Dick Cheney. And the man President-Elect Obama has chosen to serve as General Counsel at the Department of Defense, Jeh Johnson, upon questioning at his confirmation hearing, exhibited a remarkable willingness to reconsider the entire torture regime policy instituted by the Bush Administration.

So, there is hope for a far better interrogation policy set from the incoming Obama Administration. But it is not enough to simply have the audacity of hope on the subject of torture, concrete steps need to be taken to prove to the American people, and more importantly the world, that the United States is turning its back on the policies and practices of the Bush torture regime. If the Army Field Manual is going to be the reference standard for US interrogation policy, then it needs to be retooled and excised of provisions like "Appendix M" and others that are glaring gaps allowing for techniques, and the compounding of techniques, that constitute torture.

The hearts of the incoming Obama Administration’s interrogation policy appear to be in a better, more righteous, place than the torture regime of the predecessor Bush gang; but let their words and deeds reflect it. If the US is going to rely on the Army Field Manual, fine, but they must promise to edit and remove black holes like "Appendix M", and others, allowing for continued torture programs. American law and policy must be written and enforced to be in compliance with international norms and conventions. Mr. Obama, tear down the American policy of torture, and do it clearly, unequivocally and now.

(graphic by the incomparable Darkblack)


The US Torture Regime – Where Is The Swift Justice?

Earlier, Marcy and Spencer wrote about the somewhat startling admission today by Susan Crawford that the United States tortured Mohammed al-Qahtani. From Woodward and the Washington Post:

"We tortured [Mohammed al-]Qahtani," said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. "His treatment met the legal definition of torture. And that’s why I did not refer the case" for prosecution.

The entire article is worth a read just so that the bare facts of what the United States does in your name can set in. But the real thing that strikes me about Crawford’s admission is the unequivocal starkness of it. "We tortured". "Met the legal definition of torture".

Well okay then. What more could we ask for? Maybe that the statement was made by a Bush Administration official, in a position of authority, someone that actually speaks for and might could bind the government to the admission. Well, as convening authority for the military commissions, Susan Crawford darn well ought to suffice for that.

Sounds like what we have here is what the legal profession, and specifically the criminal justice portion thereof, calls an "admission against interest".

An admission against interest is an exception to the hearsay rule which allows a person to testify to a stament of another that reveals something incriminating, embarassing, or otherwise damaging to the maker of the statement. It is allowed into evidence on the theory that the lack of incentive to make a damaging statement is an indication of the statement’s reliability.

In criminal law, it is a statement by the defendant which acknowledges the existence or truth of some fact necessary to be proven to establish the guilt of the defendant or which tends to show guilt of the defendant or is evidence of some material fact, but not amounting to a confession.

Tonight, on MSNBC’s Countdown, former Navy JAG attorney Charles Swift laid out the background and implications of what our country has done and become (Attached are both the portion with Charlie Swift as well as a followup portion). What we have done is not good. It is not right. And it is not justified. It is a war crime under 18 USC § 2441.

For her next trick, perhaps Susan Crawford can tell us when the war crime prosecutions will be starting.


What about Abu Zubaydah?

While I’m glad that Susan Crawford has acknowledged publicly what we all know–that Mohammed al-Qahtani was tortured (see Spencer’s take here)–I’m just as interested in the questions that "crack reporter" Bob Woodward didn’t ask.

Such as, "Is that the same reason Abu Zubaydah was not charged along with the other 9/11 plotters?"

The answer to that question might raise all sorts of uncomfortable answers, though. After all, Qahtani was not in the same category as the other 9/11 plotters, in either the treatment he received (since it came at Gitmo rather than in black sites overseas, and came while under DOD custody rather than CIA custody), or in his actions (that is, he was stopped short of participating in 9/11, if that was indeed his intent). 

But Abu Zubaydah’s treatment resembles Khalid Sheikh Mohammed’s: while in CIA custody at a black site, he was waterboarded, not just once, but a bunch of times.

So if you admitted that Abu Zubaydah had been tortured–and therefore could not be tried–then it would raise questions about why KSM can be charged.

And if those questions were asked, you might have to differentiate between KSM and Zubaydah. KSM–as was made clear in his appearance in the Gitmo show trials–still has his wits about him. Zubdaydah, from all reports, does not.

Or, just as importantly, KSM will happily admit to having done the things we accuse him of. But Zubaydah appears to have been over-sold as the mastermind of the attacks. In fact, if you admitted that Abu Zubaydah admitted to stuff he didn’t really do after having been broken through torture, then you’d have the beginning of the pattern–with Qahtani and Zubaydah–proving that torture doesn’t work.

I’m glad Susan Crawford has finally admitted that we tortured Qahtani and because of that he can’t be charged. But will she have the courage (and the clearance) to admit that about Abu Zubaydah, too?

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Originally Posted @ https://www.emptywheel.net/torture/page/101/