On The Rule Of Law And Crimes Of Torture

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graphic by csb.dk

graphic by csb.dk

Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.

And thus was stated by Plato the general theory underlying what we have come to know and understand as the "Rule of Law". Plato’s student and protege, Aristotle, refined the thought:

Now, absolute monarchy, or the arbitrary rule of a sovereign over all citizens, in a city which consists of equals, is thought by some to be quite contrary to nature; . . . That is why it is thought to be just that among equals everyone be ruled as well as rule, and therefore that all should have their turn. And the rule of law, it is argued, is preferable to that of any individual. On the same principle, even if it be better for certain individuals to govern, they should be made only guardians and ministers of the law . . . Therefore he who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men. The law is reason unaffected by desire.

In American, and modern anglo-saxon iterations, there is no one set of constructs defining the "Rule of Law", but there are universal elements common to all. They have been generally identified as follows:

1) a government bound by and ruled by law;
2) equality before the law;
3) the establishment of law and order;
4) the efficient and predictable application of justice; and
5) the protection of human rights.

There are other lists as well. Political/legal theorist Joseph Raz has promulgated the following factors:

* That laws should be prospective rather than retroactive.
* Laws should be stable and not changed too frequently, as lack of awareness of the law prevents one from being guided by it.
* There should be clear rules and procedures for making laws.
* The independence of the judiciary has to be guaranteed.
* The principles of natural justice should be Read more →

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The IG Report Delay May Actually Be a Good Sign

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As Spencer reported yesterday, the CIA has delayed the release of newly declassified sections of the IG Report until Wednesday, July 1.

Now, as someone who has long been harping on the importance of the IG Report, I also remain very skeptical that this next release will be the momentous event many are suggesting it will be. Given the CIA’s almost comical stinginess with declassification of late, I see no reason to believe that we’ll get much substantively new in next week’s declassification.

That said, the delay has actually made me temper that view, for a few reasons. First, look at the timeline.

June 17: The WaPo reports that the CIA is pushing the Obama Administration to keep descriptions of the torture used against detainee redacted. The same article reported that CIA "has not yet forwarded the document to the White House or the Justice Department for final review."

June 19: The CIA gets its first delay–to June 26, citing the need for an interagency review.

June 26: The CIA gets its second delay–to July 1, again citing the need for an interagency review.

As I said last week, it was clear we weren’t going to get the IG Report on the first deadline, June 19, because if the White House and DOJ hadn’t yet gotten the document by June 17, there was no way their review was going to be complete by June 19. But here we are a week later, and they’re still citing the interagency review process. 

They way I figure it, if the White House and DOJ had agreed with CIA’s declassification decisions, they ought to have been able to review the CIA’s declassifications in one week’s time. But that review has now apparently taken over a week, suggesting some difference of opinion on the declassifications. And assuming (given the precedent of the OLC memos) that Obama and Holder will be more inclined to declassification than the CIA, then I think the delay may suggest the White House and DOJ pushed CIA for greater disclosure. So from my perspective, the delay is actually a mildly promising sign.

And then there’s the timing. As a number of you have pointed out, releasing the report on July 1 sets up the classic pre-holiday document dump. What few journalists haven’t checked out for a long holiday weekend on July 2 yet won’t have much time to review the document before they do check out for a July 3 holiday. Read more →

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Walid bin Attash to Be Denied Day in Court because al-Nashiri Was Tortured?

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Dafna Linzer has a story on Obama’s consideration of implementing indefinite detention via Executive Order because Congress isn’t going to cooperate with it.

The Obama administration, fearing a battle with Congress that could stall plans to close Guantanamo, has drafted an executive order that would reassert presidential authority to incarcerate suspected terrorists indefinitely, according to three senior government officials with knowledge of White House deliberations.

The whole story is worth reading. But I’m particularly interested in the last bit–where Linzer names one of the people they’re considering using indefinite detention on: Walid bin Attash.

Walid bin Attash, who is accused [4] of involvement in the bombing of the USS Cole in 2000 and who was held at a secret CIA prison, could be among those subject to long-term detention, according to one senior official.

Little information on bin Attash’s case has been made public, but officials who have reviewed his file said the Justice Department has concluded that none of the three witnesses against him can be brought to testify in court. One witness, who was jailed in Yemen, escaped several years ago. A second witness remains incarcerated, but the government of Yemen will not allow him to testify.

Administration officials believe that testimony from the only witness in U.S. custody, Abd al-Rahim al-Nashiri, may be inadmissible because he was subjected to harsh interrogation while in CIA custody.

"These issues haven’t morphed simply because the administration changed," said Juan Zarate, who served as Bush’s deputy national security adviser for counterterrorism and is now at the Center for Strategic and International Studies in Washington.

A couple of bits about this.

First, there was a great deal of FBI work done on the Cole before the torture started. Are you saying we captured and held someone based on Rahim al-Nashiri’s word, and not on real FBI information? This is all the more interesting, because information about bin Attash’s role in the Cole bombing is precisely the information that–in 2000–was not used to support a response to the Cole bombing.

But the presentation of bin Attash as one candidate for indefinite detention raises another obvious problem with indefinite detention. Is the Administration worried about al-Nashiri’s credibility as a witness? Or–given the weirdness surrounding his waterboarding–is the Administration worried about what al-Nashiri’s testimony (either public or written) would reveal about our own treatment of him?

Will Walid bin Attash be deprived Read more →

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Ending Torture: Wrong Agency, Mr. President

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Today marks the anniversary of the Convention Against Torture. In support of the anniversary, our President wrote the following:

Today, on the United Nations International Day in Support of Victims of Torture, the United States declares its strong solidarity with torture victims across the world. Torture anywhere is an affront to human dignity everywhere. We are committed to building a world where human rights are respected and protected by the rule of law.

Freedom from torture is an inalienable human right. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, ratified by the United States and more than 130 other countries since 1984, forbids governments from deliberately inflicting severe physical or mental pain or suffering on those within their custody or control. Yet torture continues to be practiced around the world by rogue regimes whose cruel methods match their determination to crush the human spirit.

[snip]

The United States is committed to the world-wide elimination of torture and we are leading this fight by example. I call on all governments to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment. I call on all nations to speak out against torture in all its forms and to make ending torture an essential part of their diplomacy. I further urge governments to join America and others in supporting torture victims’ treatment centers, contributing to the UN Fund for the Victims of Torture, and supporting the efforts of non-governmental organizations to end torture and assist its victims.

No people, no matter where they reside, should have to live in fear of their own government. Nowhere should the midnight knock foreshadow a nightmare of state-commissioned crime. The suffering of torture victims must end, and the United States calls on all governments to assume this great mission. [my emphasis]

Those bold words–that promise to prosecute all acts of torture–came not from President Obama. The promise came from George W Bush, just weeks before he signed the first written policy approval for our own torture program.

As scandalous as that fact is, take a look at what our current President had to say today.

Twenty-five years ago, the United Nations General Assembly adopted the Convention Against Torture, and twenty-two years ago this very day, the Convention entered into force. The United States’ leading role in the negotiation of the Convention and its subsequent ratification and implementation enjoyed strong bipartisan support. Read more →

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The CIA Loses Control of the Narrative

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As Aeon points out, the CIA’s spokesperson, George Little, is pissy about the coverage the WaPo gave to the latest partial declassification of detainee CSRTs.

The June 16 news story "CIA Mistaken on ‘High-Value’ Detainee, Document Shows" suggests that Abu Zubaida was an unimportant terrorist figure before his capture in 2002. That is wrong. Mr. Zubaida was a major terrorist facilitator with extensive knowledge of al-Qaeda. During questioning, Mr. Zubaida provided valuable information, including a detailed road map to al-Qaeda operatives that greatly expanded our understanding of the terrorist group and helped take other terrorists off the streets. Had your reporters asked, we would have made those points.

GEORGE LITTLE

Spokesman

Central Intelligence Agency

Thing is, it is George Little, and not Peter Finn and Julie Tate, who get it wrong–Little is mischaracterizing the WaPo story as a way to make his dubious claims about Abu Zubaydah. Here’s what they wrote about Zubaydah.

An al-Qaeda associate captured by the CIA and subjected to harsh interrogation techniques said his jailers later told him they had mistakenly thought he was the No. 3 man in the organization’s hierarchy and a partner of Osama bin Laden, according to newly released excerpts from a 2007 hearing.

"They told me, ‘Sorry, we discover that you are not Number 3, not a partner, not even a fighter,’ " said Abu Zubaida, speaking in broken English, according to the new transcript of a Combatant Status Review Tribunal held at the U.S. military prison in Guantanamo Bay, Cuba.

President George W. Bush described Abu Zubaida in 2002 as "al-Qaeda’s chief of operations." Intelligence, military and law enforcement sources told The Washington Post this year that officials later concluded he was a Pakistan-based "fixer" for radical Islamist ideologues, but not a formal member of al-Qaeda, much less one of its leaders.

They in no way suggested Zubaydah was unimportant or important. They reported he was a "fixer," and not a member of al Qaeda, which is precisely what he was. But Little invents claims made by the WaPo, so he can make grand claims about Zubaydah’s importance and intelligence value.

And there are two other weird aspects to Little’s strawman complaint. First look at whom the WaPo sources their own description of Zubaydah to: "intelligence, military and law enforcement sources." While "law enforcement sources" probably means FBI, intelligence sources may well mean folks at the CIA. 

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Withholding Torture Timelines

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Update 7/20: According to the CIA, those timelines are permissibly excluded "derivative" works.  See this post for an explanation.

It should not surprise you that I perk up whenever I see others discussing timelines. And so it should not surprise you, either, that I noted a little detail about the CIA so-called disclosure on its torture FOIAs.

The CIA is, apparently consistently, withholding timelines. In fact, it may be withholding different iterations the very same timelines.

As I pointed out several weeks ago, the CIA is being rather choosy about the stuff it includes in its Vaughn Index; whether by chance or plan, it has hidden any documents that might reveal discussions and approvals for torture that precede the OLC’s torture opinions in late July 2002. For example, they sampled more than the required one out of ten documents from among their sixteen undated documents relating to the torture tapes–they picked two. But both are uncontextualized descriptions of waterboarding (documents, frankly, it’s hard to believe they still claim are classified after the OLC memos). So they picked two almost identical documents, and avoided picking any of the six "Notes/Outlines" listed or, more interesting for me, any of the four  "Draft Preliminary Timelines," which are described to be 10, 29, 28, and 29 pages in length.

Boy would I like to get my hands on the CIA’s timeline of the torture program to match it up against my own!

Now, I have for some time speculated that most of these undated materials were working papers from the IG Report given the legal import of everything else, it’s hard to believe they’d be undated). And while that may or may not be the case, lo and behold, the IG Report happens to have a timeline!

In the Report’s table of contents, it lists an "Appendix B, Chronology of Significant Events." It’s one of the only two appendices the titles of which are not redacted in the TOC. Yet in the actual pages included in the FOIAed document, it not only doesn’t include the timeline, but it doesn’t even include the withholding page included for Appendices C through F, which at least provide a page count for the appendix in question. (Note, I believe there to be four or five more appendices the very existence of which the CIA is hiding, given the size of the redaction in the TOC.)

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264 Hours of Sleep Deprivation

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I just put two plus two together on how the CIA decided what "limits" to apply to sleep deprivation as part of its torture program.

The May 10 Techniques memo reveals that, when CIA’s IG reviewed the program in 2003 and 2004, the maximum allowable time which a detainee could be subject to sleep deprivation was 264 hours–an amazing 11 days straight.

The IG Report described the maximum allowable period of sleep deprivation at that time as 264 hours or 11 days. See IG Report at 15. You have informed us that you have since established a limit of 180 hours, that in fact no detainee has been subjected to more than 180 hours of sleep deprivation, and that sleep deprivation will rarely exceed 120 hours. To date, only three detainees have been subjected to sleep deprivation for more than 96 hours. 

Elsewhere the same memo explains,

As discussed [in the book Why We Slept], the longest documented period of time for which any human has gone without sleep is 264 hours. … The longest study with more than one subject involved 205 hours of sleep deprivation.

So what they did, apparently, to set an "upper limit" to the amount of time they can shackle someone up so they can’t sleep was simply to look up the longest recorded incident of sleep deprivation and use that!

And then when someone–presumably the IG and the CIA’s own doctors–pointed out (1) that expecting detainees subject to incredible stress to be able to withstand what one single person once withstood under radically different conditions is just nuts, and (2) sleep deprivation had already been tied to deaths in US custody, they toned it down. And how they picked their new, eminently reasonable standard of 180 hours (7.5 days)? 

Well, from the looks of things, they just figured out the longest they had kept any one detainee awake, and made that their new standard. They had to, of course, to ensure that the new standard still considered everything that had been done to be legal. 

These psychopaths were trying to set a new world record with their little science experiment on detainees, it looks like. 

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The CIA IG Report’s “Other” Contents

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In this post, I reviewed the known contents of the CIA IG Report’s 6-page section on torture for those who seem to forget we’ve seen substantive bits from that in the Bradbury memos. In this post, I’ll look at what else shows up in the Bradbury memos. In a follow-up post, I’ll look at what IG Report contents we haven’t seen (and therefore are all but guaranteed not to see).

From what we can reconstruct, the report appears to include the following:

  • Intro and summary
  • A history of CIA’s involvement in torture
  • A description of the development of the torture techniques as if they were developed for use for Abu Zubaydah
  • A review of the legal authorization for the program, with the critique that doctors were not involved in the pre-authorization review and, probably, a description of the ways that torture as practiced exceeded the guidelines included in Bybee Two 
  • An erroneous claim that everyone who should have been briefed was briefed
  • Apparently a general review of how the program was implemented, including a description of the close involvement of medical personnel, and a description of what was done to which High Value Detainees
  • A description of the decision to videotape and apparent reviews of what a review of the videotapes and cables revealed about whether the torture was what it was claimed to be
  • Forty pages of completely redacted material
  • The Effectiveness section
  • A policy section that notes that the program includes many of the same techniques as the State Department qualifies as abusive
  • Three pages of recommendations
  • A number of Appendices–the CIA appears to be hiding the very existence of about five of these and most of the contents of the rest of them

While I couldn’t begin to guess what that 40 page completely redacted section includes, the stuff that has been made available show the IG was concerned about waterboarding (for a variety of reasons), believed the program to constitute the same kind of abuses the State Department condemned, and believed the approval process for the torture techniques (the Bybee Two memo) was inadequate.

Read the rest of the entry to see the more specific details of the program.

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The CIA IG Report on the Inefficacy of Torture

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Much of the focus on the now-delayed but upcoming release of the CIA IG Report on torture has been on whether the six page section on "Effectiveness"–the section that most challenges Dick Cheney’s claims–would be released.

What people seem to be oblivious to, however, is that much of this section has already been released–in two of the Bradbury Memos declassified in April. I first reported on the IG Report’s comments about efficacy here and a week later, McClatchy did effectively the same report. I’ve replicated the section describing the page-by-page contents, as revealed by the Bradbury memos, below. But here’s basically what the IG Report appears to have concluded about torture’s inefficacy.

  • It could not be conclusively determined whether or not torture had prevented any attacks
  • There is limited data on whether torture is effective or not
  • Torture leads to an increased number of intelligence reports–it’s not clear whether the IG Report comments on the quality of those reports
  • But you can’t learn everything form one detainee–even someone like Khalid Sheikh Mohammed; the information from more minor figures is important to challenge High Value Detainees
  • The CIA waterboarded Abu Zubaydah and KSM a whole bunch of times

Note that last bullet: the report on the sheer number of times AZ and KSM were waterboarded shows up in the section on efficacy–suggesting that the number itself says something about the inefficacy of the technique.

So that’s it–that’s much what the Effectiveness section will show. And given the stinginess of the CIA of late, I expect we might just get exactly what was revealed in the Bradbury memos, and nothing more, once the IG Report is actually released.

I’m actually more interested in some other sections of the IG Report–which we also know of thanks to Steven Bradbury. But I’ll explain those in a follow-up post.

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CIA Stalling on the IG Report

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I’m not suprised in the least that the CIA has postponed the release of the IG report, they say for one week.

The CIA has postponed the release of a highly-anticipated 2004 report on torture that was set for release today and is said to conclude that there’s no proof torture foiled terror plots, a source familiar with the process confirms to me.

CIA spokesperson George Little also just emailed that the CIA expects the process to conclude “soon,” a clear sign it won’t be today.

After all, given the squabble the WaPo reported earlier this week, there was no way the CIA was going to make redactions and get it approved by the White House in time for release today.

But when the CIA (via DOJ) says, 

Given the need for inter-agency review of the re-processed document, however, we will need additional time to make a final determination as to what information, if any, may be disclosed from the report. [my emphasis]

I start getting cranky.

If any!?!?!? If any!?!?!? I can assure the CIA there is more information that it can disclose–as I showed in this post and this post.

Or is the CIA going to hide the report that they ordered up a last round of waterboarding for Abu Zubaydah in spite of the interrogators’ judgment that he was fully compliant, even though it is already out there?

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