You are hereTorture
There's been a lot of discussion about whether those who did what the OLC memos authorized should be prosecuted. But in the case of those who waterboarded KSM and Abu Zubaydah, that's irrelevant, because they did things the OLC memos didn't authorize.
I've put this detail in a series of posts, but it really deserves a full post. According to the May 30, 2005 Bradbury memo, Khalid Sheikh Mohammed was waterboarded 183 times in March 2003 and Abu Zubaydah was waterboarded 83 times in August 2002.
On page 37 of the OLC memo, in a passage discussing the differences between SERE techniques and the torture used with detainees, the memo explains:
The CIA used the waterboard "at least 83 times during August 2002" in the interrogation of Zubaydah. IG Report at 90, and 183 times during March 2003 in the interrogation of KSM, see id. at 91.
Note, the information comes from the CIA IG report which, in the case of Abu Zubaydah, is based on having viewed the torture tapes as well as other materials. So this is presumably a number that was once backed up by video evidence.
CIA fears torture prosecutions | Times Online UK
Only some of the secrets of US ‘ghost’ prisons have been revealed
THE CIA fears some of its operatives could face prosecution for torturing high-level terrorist suspects, despite President Barack Obama’s promise of legal immunity.
The confidential US Department of Justice guidelines on interrogating high-level detainees, which were made public last week, provide only a small window into the secret prisons or “black sites” run by the CIA.
“These are the first dominoes,” said Jameel Jaffer, a lawyer for the American Civil Liberties Union, which brought the lawsuit that forced the release of the memos. “It will be difficult for the new administration to argue now that other documents can be lawfully withheld.”
The memos, drawn up by Bush administration officials and lawyers, detailed what was permissible, such as placing detainees in a cramped box, “walling” them by slamming them against a wall, dousing them with a hose, depriving them of sleep, confining them with insects and simulating drowning - “waterboarding”.
A former senior CIA official at the time of the 9/11 attacks told The Sunday Times that there was more to uncover about the ghost prisons.
Obama v. Nuremberg
By John Branson
In its coverage of the Obama administration's grant of amnesty to torturers, the mainstream media's silence about the lessons from Nuremberg
is deafening. At Nuremberg, "just following orders" was rejected as a defense to war crimes or a basis for immunity, and was relevant, if at all, to sentencing. Nuremberg Principle IV states:
"The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."
Historians and legal scholars have attributed great significance to the fact that the Nazis created a full-fledged legal regime - replete with laws, legal opinions, lawyers and judges - so as to keep the general public on board with the persecution and extermination of Jews, and to give officials at the highest and lowest levels the comfort and assurance needed to justify the most brutal acts against humanity.
To astute observers, what was most troubling about the crimes of the Nazi regime was the absence of lawlessness. For this reason, the prosecutors at Nuremberg understood the importance of trying and convicting the legal architects of the criminal regime (including judges and lawyers), as well as those who sought to defend their acts by reference to the express policies of the Nazi regime and the orders of superiors based on such policies.
Obama Administration: No Prosecution of Officials for Bush-Era Torture Policy
By George Stephanopoulos | ABCNews This Week
White House Chief of Staff Rahm Emanuel said during our exclusive interview Sunday on "This Week" that President Barack Obama will not pursue the prosecution of Bush-era officials who devised torture policy against detainees, as laid out in memos the Obama administration released this week.
Earlier in the interview, I asked Emanuel about a series of officials, including former CIA director Michael Hayden and former Homeland Security Secretary Michael Chertoff, who have criticized the Obama administration's decision to release the Bush-era memos outlining torture techniques of detainees.
"First of all, we banned these techniques and practices. Banned them because we didn't think they were consistent with American security and its values," Emanuel said on "This Week."
Obama, Our New “War President,” Violates the Constitution by Fighting the Constitutional Right of Habeas Corpus
Obama made many promises, and three stick in my memory — to restore civil rights stolen by Bushman, end the looting on Wall Street, and bring the troops home from Iraq. In a word, “change.” Looking at the results achieved in the last three months on all three fronts, it appears that Americans have been taken for chumps, because if what we’ve got is change, it’s surprisingly indistinguishable from the same old-same old, as our charismatic leader would put it. Today, I’m going to talk about how he’s chosen to continue as our “war president,” and why he should change course now, for the good of the nation.
The Evil of Arbitrary Arrest Under The Tyrannical Authority of “General Warrants” and “Bills of Attainder”
Until you have been subjected to it, you can hardly imagine the terrors inflicted by despots using brute force to arrest and imprison people without cause. I have represented people who were arrested and imprisoned on false charges, but even that does not compare to being arrested for no reason whatsoever. People arrested for no reason naturally fear that they may never be released. Certainly, those detained for no reason are much more likely to be tortured and killed in secret. After all, if you can be arrested for no reason, why would you need a reason to go farther, and commit torture, or simply eliminate the problem? Lots of people like to say it was taxes that caused the revolution, but I suspect unlawful detention was by far the more powerful driver of rebellion. The Declaration of Independence accused King George of a “long train of abuses” agains the American colonists, among them:
Depriving us in many cases, of the benefits of Trial by Jury: Transporting us beyond Seas to be tried for pretended offences
By Agence France-Presse
The first use of waterboarding and other harsh treatment against suspected Al-Qaeda operative Abu Zubaydah was ordered by senior Central Intelligence Agency officials over objections from his interrogators, The New York Times reported Saturday.
Citing unnamed former intelligence officials and a footnote in a newly released legal memorandum, the newspaper said the harsh interrogation techniques had been ordered despite the belief of interrogators that the prisoner had already told them all he knew.
Former president George W. Bush had publicly described Zubaidah, who was captured in 2002, as Al-Qaeda's chief of operations while other top officials called him a "trusted associate" of Osama bin Laden and a major figure in the planning of the September 11, 2001, terrorist attacks.
VIENNA (AP) — An Austrian newspaper quotes the U.N.'s top torture investigator as saying President Barack Obama's decision not to prosecute CIA operatives who used questionable interrogation practices violates international law.
Manfred Nowak is quoted in Der Standard as saying the United States has committed itself under the U.N. Convention against Torture to make torture a crime and to prosecute those suspected of engaging in it.
Obama assured CIA operatives on Thursday they would not be prosecuted for their rough interrogation tactics of terror suspects under the former Bush administration.
Nowak also says in the newspaper interview published Saturday that a comprehensive independent investigation is needed, and that it is important to compensate victims.
By Andrew Kalloch, Harvard Law Record
Major General Antonio Taguba called for an independent commission to investigate war crimes committed by senior members of the Bush Administration in remarks in Ames Courtroom on Tuesday, April 14. The event was sponsored by Physicians for Human Rights and the Human Rights Program at Harvard Law School.
Bush Administration memos released by the White House on Thursday provide new insight into claims that American agents used insects to torture the young children of alleged 9/11 mastermind Khalid Sheikh Mohammed.
In the memos, released Thursday, the Bush Administration White House Office of Legal Counsel offered its endorsement of CIA torture methods that involved placing an insect in a cramped, confined box with detainees. Jay S. Bybee, then-director of the OLC, wrote that insects could be used to capitalize on detainees’ fears.
Congressman Jerrold Nadler has just publicly asked that the Attorney General appoint a special prosecutor. Please THANK HIM, and please ask him and ask your congress member to jointly send to Eric Holder the letter that Nadler and 55 other congress members sent to Michael Mukasey requesting a special prosecutor last summer, or an updated version thereof. Or ask your representative or senator to simply make a public statement like Nadler's.
Here is a release from Nadler's office:
A Spanish judge moved Friday to keep alive an investigation into six former Bush administration officials for alleged torture of prisoners at the U.S. detention camp for terrorism suspects at Guantanamo Bay. Cuba.
He acted just hours after prosecutors urged the case to be dropped, according to a court document.
The Obama administration has declassified and released opinions of the Justice Department's Office of Legal Counsel (OLC) given in 2005 and earlier that analyze the legality of interrogation techniques authorized for use by the CIA. Those techniques were applied only when expressly permitted by the director, and are described in these opinions in detail, along with their limits and the safeguards applied to them.
The release of these opinions was unnecessary as a legal matter, and is unsound as a matter of policy. Its effect will be to invite the kind of institutional timidity and fear of recrimination that weakened intelligence gathering in the past, and that we came sorely to regret on Sept. 11, 2001.
Proponents of the release have argued that the techniques have been abandoned and thus there is no point in keeping them secret any longer; that they were in any event ineffective; that their disclosure was somehow legally compelled; and that they cost us more in the coin of world opinion than they were worth. None of these claims survives scrutiny.
The significance of Obama's decision to release the torture memos
By Glenn Greenwald | Salon (updated below)
In the overblown, self-regarding prose that has become his trademark, Obama lauds himself and his administration for their fealty to the "rule of law" in releasing the memos. But of course, the "rule of law" also dictates that those who have planned, ordered and committed torture be prosecuted. The law has no special dispensation for crimes that might be "too disturbing" to prosecute. And so his ringing conclusion -- "we have taken steps to ensure that the actions described within them never take place again" -- rings completely hollow. How will failing to prosecute the perpetrators of these crimes deter any future perpetrator in high office? The latter will know that their crimes will be "too disturbing" to prosecute -- in much that same way that the biggest fraudsters on Wall Street today are "too big to fail," and must be allowed to escape the consequences of their actions.
I have little to say at the moment on the details of the Bush torture memos released by the Obama Administration, beyond what I have been writing for many years now about these sickening practices, and what they say about America's bipartisan, imperial elite, which countenanced them, and often openly championed them. (I think my first piece on America's torture system was written in early spring 2002 -- a column printed in the Moscow Times, drawn from readily available stories in the mainstream press. America's willing practice of torture as an official policy has been open knowledge for almost the entire decade. But I will admit the bit about using putting insects into the torture box of a wounded, deranged captive was new.)
Barack Obama is being given great credit for releasing the memos, although as the president himself points out in his statement, their release was actually required by law. I suppose it's true that the United States government has become so degraded that we must be surprised and glad when a president actually obeys the law when it suits him, but I must say that I can't find any great cause for rejoicing -- especially as Obama's statement immediately and definitely ruled out prosecuting any of the direct perpetrators of these criminal actions.
CIA interrogators were given legal authorization to slam an alleged "high-value" detainee's head against a wall, place insects inside a “confinement box” to induce fear, and force him to remain awake for 11 consecutive days, according to a closely guarded Aug. 1, 2002 legal memo released publicly by the Justice Department for the first time Thursday.
From the office of Sen. Russ Feingold, a suggestion that the administration is open to future prosecution. Do know that Feingold and other key members of Congress have been formally briefed on this, so he presumably is not thinking wishfully here:
By David Swanson
On August 1, 2002, then-Assistant Attorney General of the United States Jay Bybee sent an 18-page official memorandum from the Office of Legal Counsel to the Acting General Counsel of the CIA John Rizzo. Such memos are treated as laws within our government, not opinions, not theories, not briefings, but laws. They are secret laws, but in many cases there's not much risk of us ordinary schmucks who don't know the laws violating them, at least not without also violating public laws that are tougher and more comprehensive. These secret laws tend to consist of permissions to violate the public laws in particular ways. They are crazy laws, because they advise violating the real laws and purport to serve as protection for the claim that the violator did so in "good faith." Nonetheless, they are as much laws as anything passed by Congress, if not more so, since they do not come with presidential signing statements but at most a snide remark scribbled by Donald Rumsfeld.
By Dave Lindorff
Back in 1965, as a 15-year-old kid, I had a chance to spend half a year as a student at a boy’s gymnasium (high school) in Darmstadt, the cultural capital of the German state of Hesse, which had the distinction of having been one of a handful of cities in Germany (Dresden was another) that were selected by the Allies to test out the terror tactic of firebombing. The town was chosen for incendiary bombardment precisely because it had no military value and thus, no air defenses (and because it consisted mostly of wooden structures). With Germany still wreaking horrific damage on the Allied bomber fleet, this made it an inviting target.
By Jason Leopold, The Public Record
In March 2003, after Iraqi troops captured several U.S. soldiers and let them be interviewed on Iraqi TV, senior Bush administration officials expressed outrage over this violation of the Geneva Convention.
"If there is somebody captured," President George W. Bush told reporters on March 23, 2003, "I expect those people to be treated humanely. If not, the people who mistreat the prisoners will be treated as war criminals."
No one in the Bush administration, however, acknowledged the extent of their own violations of rules governing humane treatment of enemy combatants. Nor did the U.S. news media offer any context, ignoring the U.S. handling of Afghan War captives at Guantanamo Bay in 2002 and the fact that the U.S. military also had paraded captured Iraqi soldiers before cameras.
Justice Department Releases Bush Administration Torture Memos | ACLU Press Release
Bradbury And Bybee Memos Are Released In Response To Long-Running ACLU Lawsuits
In response to litigation filed by the American Civil Liberties Union under the Freedom of Information Act (FOIA), the Justice Department today released four secret memos used by the Bush administration to justify torture. The memos, produced by the Justice Department's Office of Legal Counsel (OLC), provided the legal framework for the CIA's use of waterboarding and other illegal interrogation methods that violate domestic and international law.
The Obama administration released four Bush-era memos on terror interrogations Thursday.
Also on Thursday, Attorney General Eric Holder said that CIA officials will not be prosecuted for waterboarding and other harsh interrogation tactics that had been sanctioned during the Bush administration.
The memos, written by a top Justice Department lawyer, provided legal guidance to the entire executive branch, including the intelligence agencies, on permissible "enhanced interrogation techniques" that could be used against suspected terrorists taken into custody.
"My judgment on the content of these memos is a matter of record," President Obama said Thursday.
No Charges Against CIA Officials for Waterboarding
Attorney General Eric Holder Won't Prosecute CIA Officials for Harsh Interrogations, Waterboarding
By Jennifer Loven and Devlin Barrett | ABCNews
Seeking to move beyond what he calls a "a dark and painful chapter in our history," President Barack Obama said Thursday that CIA officials who used harsh interrogation tactics during the Bush administration will not be prosecuted.
The government released four memos in which Bush-era lawyers approved in often graphic detail tough interrogation methods used against 28 terror suspects. The rough tactics range from waterboarding — simulated drowning — to keeping suspects naked and withholding solid food.Even as they exposed new details of the interrogation program, Obama and Attorney General Eric Holder, offered the first definitive assurance that those CIA officials are in the clear, as long as their actions were in line with the legal advice at the time.
Obama said the nation must protect the identity of CIA contractors and employees "as vigilantly as they protect our security."
"We have been through a dark and painful chapter in our history," the president said. "But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past."
Holder told the CIA that the government would provide free legal representation to CIA employees in any legal proceeding or congressional investigation related to the program and would repay any financial judgment.
"It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department," Holder said.
New memo from Jay Bybee: PDF. This purports to give "legal" permission to engage in various detailed torture techniques against Abu Zubaydah. We know what was done from the ICRC report and other sources, and that it produced nothing of value. We know why the CIA detroyed the 92 tapes. But here is the authorization from the "Justice" department. The man who wrote it is now a federal appeals judge on the 9th circuit. If he is not impeached, Congress will essentially cease to exist as a branch of our government. ASK CONGRESS TO IMPEACH BYBEE.
Early announcement was in NY Times.
And Obama tells torturers they will not be prosecuted:
Below is AP story and statements from DOJ and POTUS
No charges against CIA officials for waterboarding
By JENNIFER LOVEN and DEVLIN BARRETT, Associated Press
WASHINGTON – The Obama administration on Thursday informed CIA officials who used waterboarding and other harsh interrogation tactics on terror suspects that they will not be prosecuted, senior administration officials told The Associated Press.
The CIA has about 3,000 documents related to the 92 destroyed videotapes that showed “war on terror” detainees being subjected to harsh interrogations, the Justice Department has disclosed, suggesting an extensive back-and-forth between CIA field operatives and officials of the Bush administration.
The Justice Department said the documents include “cables, memoranda, notes and e-mails” related to the destroyed CIA videotapes. Those tapes included 12 that showed two “high-value” prisoners undergoing the drowning sensation caused by waterboarding and other brutal techniques that have been widely denounced as torture.
By William Fisher, The Public Record
In a ruling that could have widespread implications for government contractors overseas, a federal court has concluded that four former Abu Ghraib detainees, who were tortured and later released without charge, can sue the U.S. military contractor who was involved in conducting prisoner interrogations for the Pentagon in Iraq.
U.S. District Judge Gerald Bruce Lee, appointed by President Bill Clinton in 1998, denied a motion to dismiss the detainees’ claims by the contractor, CACI International. The Arlington, Virginia-based company is a major contractor to the Defense Department.
The former detainees allege multiple violations of U.S. law, including torture, war crimes and civil conspiracy.
By Jordan J. Paust
From Valparaiso University Law Review
With permission of the author