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Topic: US Justice; These Interesting Times (Read 2405 times) |
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MoEnzyme
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Re:US Justice; These Interesting Times
« Reply #15 on: 2009-04-20 05:40:16 » |
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This disappoints me.  I thought it would have been more clear to just say in the first place we (US Justice) wouldn't prosecute ANYONE for torture instead of making two separate statements which in effect add up to that conclusion. Unless the administration changes its position, I suppose the best hopes for rehabiliting the credibility and competance of US justice would be 1) that these people lose their government jobs and/or professional licenses (legal or medical) and 2) any of the other thouands of more local prosecutors in the US - since torture invokes universal jurisdiction - will take up the prosecution.
Certainly the release of these memos helps to facilitate these other possibilities, so perhaps I can take some comfort in the fact that while the administration is reluctant to go after its closest enemies it doesn't seem to go out of its way to stonewall the relevant information so others can join the fight. I still find it disappointing that the most obviously appropriate prosecutor, US Justice, has chosen to pass the buck on this. Maybe the Spanish will chang their mind.
Former President George W. Bush's torture enablers off hook
Monday, April 20th 2009, 4:00 AM
WASHINGTON - The White House on Sunday said that Bush administration policymakers would get a pass along with the CIA agents who waterboarded terrorists.
full article: http://www.nydailynews.com/news/us_world/2009/04/20/2009-04-20_ws_torture_enablers_off_hook.html
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Mo Enzyme
(consolidation of handles: Jake Sapiens; memelab; logicnazi; Loki; Every1Hz; and Shadow)
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Hermit
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Re:US Justice; These Interesting Times
« Reply #16 on: 2009-04-20 06:10:00 » |
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If the Whitehouse really is unconstitutionally overriding the poorly named Justice Department, that makes this administration worse than the previous one (on grounds of mens rea), and Obama as great a war criminal as Bush. If it is not true, hopefully the justice Department will show that it is independent by bringing indictments.
If the US is truly not going to prosecute anyone for these blatant crimes, I expect other countries to begin the process, even though, as in Spain, the US may bribe and threaten them to the point where they withdraw.
Either way, it leaves the US exposed as bare-assed hypocrites anytime they criticize, let alone act, against anyone else for war crimes or crimes against humanity. Like Charles Taylor's son "Chuckie". recently prosecuted by the USA, in the USA, and sentenced to 97 years for 8 counts related to his instigating attacks on individuals opposed to his father's rule.
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With or without religion, you would have good people doing good things and evil people doing evil things. But for good people to do evil things, that takes religion. - Steven Weinberg, 1999
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Blunderov
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Re:US Justice; These Interesting Times
« Reply #17 on: 2009-04-20 10:42:54 » |
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Quote from: Hermit on 2009-04-20 06:10:00 <snip>
If the Whitehouse really is unconstitutionally overriding the poorly named Justice Department, that makes this administration worse than the previous one (on grounds of mens rea), and Obama as great a war criminal as Bush. </snip> |
[Blunderov] I was wondering about this. I think that according to Roman Dutch legal philosophy Obama would be making himself an accessory after the fact and would indeed be just as culpable as the original perpetrators. I'm also reasonably certain that the USA too has similar obstruction of justice legislation that most countries do (not to mention that the "Nuremberg Defence" is anyway a complete non-starter no matter what Obama decrees).
If Obama was faced with a law suit somewhat along these lines brought by say, the ACLU, I wonder what the reaction would be? Is there no legal means in the USA (perhaps even private prosecution?) by which officials can be forced to perform their perfectly unambiguous duties even if they really, really don't want to?
I suppose the catechism is that the public is perfectly free to elect other officials if it so chooses but, rather disappointingly, it seems to be the case that the same ones always get elected again anyway no matter how much their various faces may change.
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Re:US Justice; These Interesting Times
« Reply #18 on: 2009-04-20 16:12:25 » |
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Yes there is. It would take the form of an application for a writ of mandamus from the superior court to the one where action is demanded.
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With or without religion, you would have good people doing good things and evil people doing evil things. But for good people to do evil things, that takes religion. - Steven Weinberg, 1999
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MoEnzyme
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Re:US Justice; These Interesting Times
« Reply #19 on: 2009-04-20 18:41:18 » |
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Mandamus is normally used for simple executive functions where there are already legally established facts (via factfinder) or otherwise officially recognized facts (eg. someone won an election, a particular law was passed etc). A writ of mandamus is fairly specific and generally requires little to no discretion or expertise in its execution. In otherwords a good mandamus motion to be successful should be almost lawyer and idiot proof in its interpretation and execution. Specific prosecution is much more tricky and unlikely to be the subject of a mandamus motion. If I as a government employee have to go to law school, need a professional license and it requires professional discretion in its execution, mandamus is likely the wrong tool to force me to do it. Impeachment or other methods to relieve me of government employment would be more the order of the day in those kinds of things - or even criminally prosecuting me if possible and necessary.
However, extradition is a different matter. If a prosecutor in some other jurisdiction (like Spain) has an indictment or other similar finding recognized by law (whether it be through treaty, or domestically), and obtains an order for extradition, THAT would more likely be something that could easily be the subject of a writ of mandamus.
The best public slogan I've heard on this torture issue, "We already know the facts, we just need a prosecutor." Yes, both Bush and Cheney have effectively and publically confessed, so it MIGHT seem like a potential mandamus subject, and certainly the kind of prosecution a newly minted lawyer should be able to handle half-asleep. However even more run-of-the-mill cases where there IS a confession still require a probable cause finding, even if its just a magistrate's finding, to progress. To order such a fact-finding ahead of time would legally defeat whatever fact finding function demanded (even in those cases where the facts seem otherwise publicly obvious).
In any case, since these crimes have universal jurisdiction, the most likely strategy to succeed would be to convince a prosecutor in any jurisdiction which has also signed these same treaties (the more credible the better - Spain was a good candidate) to get a probable cause finding, a warrant, and apply for extradition wherever the defendant can be physically found. Actually any district attorney in the US would be best, but that could get politically ticklish given that US justice (Holder) has already declined prosecution. Within the US we would need a real maverick DA - not like sycophant McCain - to move on this.
Of course if any of these "dark heroes" of torture should choose to travel outside the US, it would make things much easier. Somehow I think they know better than that.
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Re:US Justice; These Interesting Times
« Reply #20 on: 2009-04-21 01:42:32 » |
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[Hermit] The response was just to, [Blunderov] "Is there no legal means in the USA (perhaps even private prosecution?) by which officials can be forced to perform their perfectly unambiguous duties even if they really, really don't want to?
[Hermit] In general, a writ of mandamus can be used to make any official subject to any court perform their duties.
[Hermit] While there are of course ways to present particular cases to obfuscate whast precisely the duties may be, I think that the "unambiguous duty" to prosecute torture cases is quite clear to everyone except possibly to Cheney and Bush who seem to consider themselves above the law.
[Hermit] While US law in this area is not atypically as clear as mud, the post WW II treaty obligations and in particular the UN Convention Against Torture are very straightforward, and make it totally explicit that such crimes cannot be mitigated or pardoned away. Which is why an international court with jurists used to dealing with such crimes might be preferable; but the treaty also makes it clear that it is the host countries obligation to proceed and it is only in the face of their willingness to avoid prosecution that the duty devolves on all other countries.
[Hermit] In this light, I suggest that the duty to prosecute blatant cases of acknowledged crime under US law and treaties is not easily shirked.
[Hermit] And apropos of something, given that the US and China now share a reputation for torture, it is perhaps little surprise that Bush feels comfortable there. I found Canada's willingness to host international criminals much more difficult to understand.
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With or without religion, you would have good people doing good things and evil people doing evil things. But for good people to do evil things, that takes religion. - Steven Weinberg, 1999
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MoEnzyme
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Re:US Justice; These Interesting Times
« Reply #21 on: 2009-04-22 07:36:08 » |
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This was a welcome change of position. -Mo
04/22/09
Obama open to pursuing Bush lawyers over torture
WASHINGTON—President Obama on Tuesday opened the possibility of prosecuting Bush-era lawyers who authorized brutal interrogation of suspected terrorists, and he suggested that Congress might order a full investigation.
full article: http://www.buffalonews.com/180/story/647326.html
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Blunderov
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Re:US Justice; These Interesting Times
« Reply #22 on: 2009-04-24 06:05:30 » |
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[Blunderov] Not only does the UN regard the USA as guilty of having practiced torture but so does the US Senate committee!
On the subject of "duress"; ISTM the Coneheads are getting away with framing of the torture issue in terms that are favorable to them. They are being allowed to prattle about the limits they had placed upon the interrogation techniques which, they claim, means that no risk of serious injury or death actually existed and that these techniques did not therefore amount to actual torture. The point is though that the subjects were in actual fear of their lives. They had no means of knowing that there were to be any limits at all on what they were to be subjected to. The threat of execution unless information is disclosed is designed to engender mortal terror in the subject and this is quite unambiguously torture - even if it is not intended that the execution will actually be carried out. The terror induced in the subject is real. (If it wasn't it wouldn't be worth bothering with.)
http://scienceblogs.com/dispatches/2009/04/senate_committee_releases_repo.php
Senate Committee Releases Report on Torture
Posted on: April 23, 2009 9:23 AM, by Ed Brayton
The Senate Armed Services Committee, chaired by Sen. Carl Levin of Michigan, has released its final report (PDF) tracing the development of the Bush administration's policies and practices of abusing and torturing detainees after 2001. The report is based on over 200,000 classified and unclassified documents, memos and communications from within the Bush administration and interviews with more than 70 people with direct involvement in the matter. The report begins by asserting:
The abuse of detainees in U.S. custody cannot simply be attributed to the actions of "a few bad apples" acting on their own. The fact is 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. Those efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority.
The report also notes that what the Bush administration called "enhanced interrogation" techniques were based upon the training program used in SERE (Survival, Evasion, Resistance and Escape) training in the military, techniques that were "based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions." They were used during SERE training to teach soldiers how to withstand them should they ever be captured.
Among the interesting revelations contained in this report is the fact that the military tended to be opposed to using abuse and torture to get information from detainees, arguing that it was not effective. One memo sent early on in 2002 from a lieutenant colonel at the U.S. Army Special Operations Command said:
"If individuals are put under enough discomfort, i.e. pain, they will eventually do whatever it takes to stop the pain. This will increase the amount of information they will tell the interrogator, but it does not mean the information is accurate. In fact, it usually decreases the reliability of the information because the person will say whatever he believes will stop the pain."
Maj. Paul Burney, an Army psychiatrist who was asked to evaluate whether the techniques being considered would help or hurt, wrote in a 2002 memo:
"Experts in the field of interrogation indicate the most effective interrogation strategy is a rapport-building approach. Interrogation techniques that rely on physical or adverse consequences are likely to garner inaccurate information and create an increased level of resistance...There is no evidence that the level of fear or discomfort evoked by a given technique has any consistent correlation to the volume or quality of information obtained...The interrogation tools outlined could affect the short term and/or long term physical and/or mental health of the detainee. Physical and/or emotional harm from the above techniques may emerge months or even years after their use. It is impossible to determine if a particular strategy will cause irreversible harm if employed."
Burney shows up again when the report discusses a trip by Army psychologists and psychiatrists to Ft. Bragg in September, 2002 to learn how to use those SERE techniques to elicit information from detainees. Burney said that the administration was concerned that they weren't getting enough information out of the detainees at Gitmo, particularly information tying Al Qaeda to Iraq as the administration was trying to build a case for invading that country, which is what drove the pressure to use "enhanced" techniques. Burney testified to the Army Inspector General later, saying,
"[T]his is my opinion, even though they were giving information and some of it was useful, while we were there a large part of the time we were focused on trying to establish a link between Al Qaeda and Iraq and we were not being successful in establishing a link between Al Qaeda and Iraq. The more frustrated people got in not being able to establish this link ... there was more and more pressure to resort to measures that might produce more immediate results."
In other words, the administration used techniques they knew would produce false information (Bl. My emphasis) -- that were based upon Chinese techniques employed deliberately to elicit false confessions -- to help build a false case for invading Iraq. And this was ordered by political appointees, including Paul Wolfowitz*, who is shown in the report to have called Gitmo several times to urge them to use torture to get that information, over the objections of the military.
*[Bl.] They very same day that I'm appointed world dictator will be the day that this man faces a firing squad 
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Hermit
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Re:US Justice; These Interesting Times
« Reply #23 on: 2009-04-24 11:56:58 » |
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It is also worth mentioning that despite US government attempts to suppress all related information, we know that a number of people have been tortured to death by agents of the US administration and that many others are still disappeared. So what we are seeing is a discussion limited to the nice "official torture policies", not the result of what those policies instigated and enabled. Which was premeditated unlawful killing, for which the applicable English and legal description is "murder".
For example, General Abed Hamed Mowhoush, beaten over days by U.S. Army, CIA and other non-military forces, stuffed into a sleeping bag, wrapped with electrical cord, and suffocated to death after his surrender to US forces, Manadel al-Jamadi, whose death became public during the Abu Ghraib prisoner-abuse scandal when photographs depicting prison guards giving the thumbs-up over his body were released and Nagem Sadoon Hatab strangled while in US custody.
Which means that the current, so civilized, discussions about torture completely omit the vilest aspects of it.
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With or without religion, you would have good people doing good things and evil people doing evil things. But for good people to do evil things, that takes religion. - Steven Weinberg, 1999
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Blunderov
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Re:US Justice; These Interesting Times
« Reply #24 on: 2009-04-25 03:55:42 » |
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Quote from: Hermit on 2009-04-24 11:56:58 ...Which means that the current, so civilized, discussions about torture completely omit the vilest aspects of it...
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[Blunderov] Quite. To my mind perhaps the vilest aspect of the whole affair is the so called "mosaic philosophy"; that policy whereby men known full well by the authorities to be entirely innocent were/are nevertheless detained and, one assumes, subjected to "enhanced interrogation techniques" nonetheless. I would be interested to know, as I'm sure would the American public, exactly how many of these innocent men were tortured - and how often - and who exactly was responsible? And I would like these names to become part of every school history syllabus that is taught in America from now until the crack of doom. May their names live in infamy forever.
There appears now to be some hope that there will be legal consequences for these despicable men - and women. That means Nancy Pelosi as well as Condi Rice! Maybe they can share a cell - I like my justice poetic, me.
http://www.globalresearch.ca/index.php?context=viewArticle&code=ROS20090424&articleId=13332
New Revelations Compel Obama and Congress to Prosecute Bush and Aides for War Crimes
by Sherwood Ross
Global Research, April 24, 2009
Revelations that high Bush administration officials both approved torture and knew that almost all of Guantanamo’s prisoners were innocent compel the nation to prosecute them for war crimes, a distinguished legal scholar writes.
Instead, the Obama administration and Congress have been “running away” from the prosecution of the Bush officials, writes Lawrence Velvel, dean of the Massachusetts School of Law in his blog VelvelonNationalAffairs.
For from discussing prosecutions, “we are hearing about possible, almost surely secret, investigations---which will keep facts away from the American public---in order to find out whether the Bush Administration kept information from Congress---which we already have known for years it certainly did,” Velvel writes.
“And we are hearing about truth and reconciliation commissions, with immunity given to arch criminals in exchange for testimony, in order to find out the facts---which already are largely known and, to the extent not known, would come out in criminal prosecutions,” he added.
The reason politicians are running may be because many of the members of Congressional intelligence committees “received briefings on what was going on” and are complicit.” Thus, ” Velvel writes, “The word on the street is that Nancy Pelosi and Jay Rockefeller are especially terrified and are working behind the scenes to kill any possibility of prosecutions.”
One of the revelations that compel prosecution, Velvel says, is author Mark Danner’s article in a recent The New York Review of Books leaking a secret Red Cross report on the details of the American program of torture and abuse of detainees. That report was sent to CIA General Counsel John Rizzo who, Velvel says, “was himself one of the criminals.”
The other revelation was that of Col. Lawrence Wilkerson, former aide to Secretary of State Colin Powell, that, “almost from day one, the very highest American officials knew that almost all of the prisoners at Guantanamo were innocent, but decided to keep these innocent people at Guantanamo anyway for the duration----for many, many years, for a period outlasting Bush’s terms in office----because they were scared to death at being revealed yet again to be incompetent,” Velvel writes.
“So innocent people,” Velvel continued, those having “no intelligence value in actuality---were kept locked up for years for the self protective purposes of political men, just as was done in the worst dictatorships, just as was done under Hitler and Stalin.”
Vice President Dick Cheney and Defense Secretary Donald Rumsfeld, Velvel says, rationalized these arrests under the “mosaic philosophy,” that if a man was captured in or near areas of operations he must know at least “something” about events that, when combined with other snippets, could be combined into a “mosaic” of useful intelligence.
“Thus,” Velvel quotes Col. Wilkerson as saying, “as many people as possible had to be kept in detention for as long as possible to allow the philosophy of intelligence gathering to work. The detainees’ innocence was inconsequential. After all, they were ignorant peasants for the most part and mostly Muslim to boot.” (Emphasis in original text.)
Velvel writes that while “a lot of Americans” would not object to the torture of hard-core terrorists of Al-Qaeda, they would recoil at holding known innocent people for years on end at a facility such as Guantanamo prison in Cuba where there was regular torture and abuse. He added, “Yet despite this…the mainstream media, as far as I can see, has largely ignored what Wilkerson said.”
Col. Wilkerson opined that Cheney and his like “are evil people”, to which Velvel adds, “Letting people like that go unprosecuted, letting them continue to walk free---often as wealthy men, no less…even though they locked up innocent people for years to serve their own selfish political purposes….is just as bad (or worse) as it would be to let Bernard Madoff walk free…” Velvel concluded, “We must either choose prosecutions to uphold decency, or no prosecutions, which would reward indecency.”
Velvel is dean and cofounder of the Massachusetts School of Law at Andover, purposefully dedicated to providing a rigorous, affordable legal education to students from minority, low-income and immigrant backgrounds that otherwise would not be able to enter the legal profession. The school has been hailed as a pioneer in legal education reform and dean Velvel has been honored for his contributions by the National Law Journal and cited as a leading legal reformer by National Jurist magazine. #
Reach dean Velvel at velvel@mslaw.edu or Sherwood Ross at sherwoodr1@yahoo.com )
Ross Associates, Suite 403, 102 SW 6th Ave., Miami, FL 33130
Sherwood Ross is a frequent contributor to Global Research.
[Bl.] A glimmer of hope for the rule of law?
http://www.opednews.com/articles/The-Third-Branch-Alive-an-by-William-Fisher-090424-388.html
The Third Branch: Alive and Well!
by William Fisher
www.opednews.com
As the debate heats up over what to do about recent disclosures of widespread abuse of war-on-terror prisoners, the "third branch" of the U.S. government - the Judiciary -- continues to assert its independence from the other two branches - the Executive and the Legislative.
In one recent decision, a federal court has refused the Obama Administration's efforts to delay a hearing for a Guantanamo prisoner. In a second, another federal court has ordered the release of a "substantial number" of photos depicting abuse of prisoners by U.S. personnel in Iraq and Afghanistan.
In the Guantanamo case, a federal judge has denied the Justice Department's motion to dismiss or delay a challenge to the unlawful detention of Mohammed Jawad, a Guantánamo prisoner who has been held in U.S. custody since he was a teenager.
In February, the government filed a motion continuing Bush administration efforts to deny Jawad his right to challenge his detention in federal court until after the Guantánamo military commission case against him is complete, even though President Obama has ordered a halt to all military commission proceedings.
"Today's ruling is vindication of the right to challenge indefinite detention," said Jonathan Hafetz, staff attorney with the American Civil Liberties Union (ACLU) National Security project and counsel in Jawad's habeas case.
Hafetz told us, "Mohammed Jawad's case embodies the complete injustice and failure of Guantanamo. Mr. Jawad has been unlawfully detained for more than six years based on evidence that a military commission judge ruled was the product of torture. Yet, the government persists in imprisoning Mr. Jawad. We intend to vigorously contest that detention in federal court in light of the district judge's recent ruling that his case must proceed promptly."
He added that the court order "emphasizes the importance of independent judicial review for prisoners who have been held for years with no legal recourse. A prompt habeas hearing is especially necessary because Mr. Jawad's mental and physical well-being continue to be jeopardized by the harsh conditions in which he is being held at Guantánamo. This order upholds Mr. Jawad's right to have his day in court."
The Supreme Court ruled last year that Guantanamo detainees have the right to challenge their imprisonment in U.S. civilian courts. The decision was one of several major rebukes by the High Court to the Bush Administration.
In the order, U.S. District Court Judge Ellen S. Huvelle of the District of Columbia said that earlier cases asserting the right of prisoners to challenge their detention require "prompt adjudication of Guantánamo detainees' habeas cases."
Jawad has been in U.S. custody since he was captured when he was possibly as young as 14, and is one of two Guantánamo prisoners the U.S. is prosecuting for war crimes allegedly committed when they were children.
Jawad's former military commission prosecutor, Lt. Col. Darrel Vandeveld, submitted a 14-page statement in support of the ACLU's habeas corpus challenge stating that the flaws in the commission system make it impossible "to harbor the remotest hope that justice is an achievable goal." Lt. Col. Vandeveld's statement describes torture Jawad suffered in U.S. custody.
In the second court decision, the Defense Department has been ordered to release a "substantial number" of photos depicting abuse of prisoners by U.S. personnel in Iraq and Afghanistan.
The photos' release is in response to a Freedom of Information Act lawsuit filed by the ACLU in 2004 and will include images from prisons in Iraq and Afghanistan at locations other than Abu Ghraib, the ACLU said. The photos will be made available by May 28.
"These photographs provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib," according to Amrit Singh, a staff attorney with the ACLU.
"Their disclosure is critical for helping the public understand the scope and scale of prisoner abuse as well as for holding senior officials accountable for
authorizing or permitting such abuse," she said.
Since the ACLU's FOIA request in 2003, the Bush administration had refused to disclose these images, the ACLU said. The administration claimed that disclosure of such evidence would generate outrage and would violate U.S. obligations toward detainees under the Geneva Conventions, the ACLU said.
But, in September of 2008, a U.S. Appeals Court ruled that disclosure of the photos was required, thus rejecting the Bush administration's position. The court ruled that there was significant public interest in disclosure of the photographs. The Bush administration's appeal to the full appeals court was denied on March 11 of this year.
"The disclosure of these photographs serves as a further reminder that abuse of prisoners in U.S.-administered detention centers was systemic," said Jameel Jaffer, director of the ACLU National Security Project. "Some of the abuse occurred because senior civilian and military officials created a culture of impunity in which abuse was tolerated, and some of the abuse was expressly authorized. It's imperative that senior officials who condoned or authorized abuse now be held accountable for their actions."
Conservative critics are forever seeking ways to attack "activist judges" (read Liberal). But these two decisions are neither conservative nor liberal. They are the result of what judges are supposed to do: follow the law.
It's refreshing to know that they're still in business.
[Bl.] The General sums up the situation:
http://patriotboy.blogspot.com/2009/04/opinuary-column_24.html
The Opinuary Column
24 April 2009, 19:04:00 | noreply@blogger.com (mjs)
The Opinion (that) The United States does not torture died yesterday from a variety of so-called enhanced interrogation techniques, up to and including being repeatedly slammed into a false wall, simulated drowning, stress positions and sleep deprivation. The Opinion had a long, full life, and it is with sorrow and regret that we note its passing.
Family and friends will join together to celebrate the life of the Opinion at an undisclosed detention facility next week. The general public is not welcome. Period. If anyone not specifically invited to this event shows up such a person will be placed in a small, dark box with a variety of arachnids tossed inside. You and your spider friends will be left there for a period not so long as to cause prolonged mental anguish or undue suffering, but long enough to totally freak you out. Additionally, you will be so close to organ failure that you could taste it.
In lieu of flowers the family has asked that would-be donors go to the closest window in their home or workplace or what-have-you, throw said windows open and howl in abject horror so that the whole world should hear their wailing, indeed scream from the very core of their beings until the mountains of our nation shake with despair, our fresh water lakes, rivers and streams dry up from shame, and our guilty, besotted souls are dashed upon the flesh-rending rocks that line the abject hollows of eternity.
++++
The Opinuary Column appears every Friday afternoon at Jesus' General.
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Hermit
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Re:US Justice; These Interesting Times
« Reply #25 on: 2009-05-03 15:56:23 » |
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Nothing but the Truth on Torture
Source: NY Times
Authors: Albert R. Hunt
Dated: 2009-05-03
Albert R. Hunt is a columnist for Bloomberg News.
Alberto Mora says it's "politically unthinkable" to criminally prosecute the top Bush administration officials who sanctioned torture. He also says it's "legally unthinkable" not to hold them accountable.
Few Americans better understand the precarious stakes of looking into what role torture played in the "war on terror" than Mr. Mora, a once-staunch political conservative whom President George W. Bush appointed as general counsel of the U.S. Navy in 2001. Mr. Mora was horrified at the legal justifications for the "enhanced interrogation" techniques like waterboarding. After he left, he became an outspoken critic.
He argues passionately and persuasively that the Bush-Cheney practices broke international law, hurt the United States' standing in the world and fundamentally violated American values.
Mr. Mora, a Republican, has no desire to see former Vice President Dick Cheney or the authors of the secret legal opinions tried for war crimes.
That would tear the country apart and set a dreadful precedent.
Yet the issue is so bitter that leaving it to the ordinary congressional and legal processes is untenable. Just witness the clumsy back and forth of President Barack Obama and the White House over who should and who shouldn't be subject to prosecution. The president, a former law school professor, should have known better than to wade into this.
This, then, is one of those rare occasions that necessitate a special commission of prestigious members with full authority to issue subpoenas.
Its jurisdiction should include the use of torture and other cruel or inhuman treatment that violate the Geneva Conventions, as well as rendition and surveillance.
Anyone who testifies before that panel -- as the Senate Judiciary Committee chairman, Patrick Leahy, suggests -- should receive immunity from prosecution. [ Hermit : I wonder if this author has studied, e.g. The UN Convention on Torture - according to which, torture cannot be pardoned and torturers cannot be immunized. ]
Transparency and accountability are the objectives, not criminalization.
The political right will go ballistic over any serious inquiry, while the political left will reject immunity.
The bitterness is evident with a glance at blog sites. On the liberal side, there are pictures of obscene practices, shrill denunciations of Mr. Cheney, and headlines like, "Torture is foreplay for war."
On conservative sites, the analyst Bill Kristol boasts, "Bring it on." There are headlines like "Declassify Obama's native-birth along with torture memos."
The agenda for much of the left is vengeance, to thoroughly discredit the Bush administration. For much of the right, including Mr. Cheney, it's to play on fears that America is vulnerable because Mr. Obama isn't tough enough on terrorists.
The issue won't go away.
Torture was used extensively on some captives in 2002 and 2003, with dubious legal justification and debatable results, and the U.S. government lied to its citizens. Critics contend it would be harmful to U.S. intelligence and foreign relations to expose policies and techniques that may prove embarrassing while the United States is in the middle of a war. They forget that the Roberts Commission was established to investigate the Japanese assault on Pearl Harbor 11 days after the surprise attack.
Others suggest that this is a partisan witch hunt. That ignores that many top Republican officials, at the time and since then, vehemently opposed these practices. The infamous legal justifications for the policy crafted by the Justice Department's Office of Legal Counsel, then headed by Jay Bybee, now a federal judge, and John Yoo, were ridiculed and overturned by subsequent Bush appointees to that office.
Ali Soufan, a Federal Bureau of Investigation expert on Al Qaeda, revealed that he got more information from one of the captured terrorists using conventional methods. He was so appalled when Central Intelligence Agency contractors started using torture that he objected and reported it back to F.B.I. headquarters. The F.B.I. director, Robert Mueller, ordered him to return to Washington, and the bureau refused to participate in any more of these rogue operations.
The policy was anathema to military people, starting with Colin Powell, a retired general and secretary of state in the first Bush term.
Says Mr. Mora: "I never met a senior military officer that didn't object to these policies. They caused the senior military to hold the Bush administration in contempt."
Given the partisan rancor, any commission would have to be headed by establishment figures with credibility across the political divide: former Supreme Court Justice Sandra Day O'Connor, former Senator Sam Nunn, or the Sept. 11 commission leaders, Tom Kean and Lee Hamilton. It would also need to include some prominent former military officers.
A lot of information is already out about these practices, which Mr. Bush once tried to present as an "alternative set of procedures," through released memos, limited congressional inquiries, a Red Cross report, press revelations and books like "The Dark Side" by Jane Mayer.
Yet there are critical unanswered questions that an empowered commission might be able to answer. Was the sole purpose of torture to extract information to go after Al Qaeda and head off any subsequent attacks? Was some of it aimed at pressuring suspects to implicate Saddam Hussein to justify the invasion of Iraq? What effect did this have on cooperative intelligence-gathering and even military issues with other countries? Were congressional Democrats fully briefed?
Mr. Cheney wants a selective release of data to demonstrate that valuable information was gained from the terrorists who were waterboarded. That seems to be demonstrably true. Useful facts clearly emerged from some of these interrogations. What is far less clear is whether that information could have been gotten using more sophisticated, legal methods. And what price did America pay for acting this way?
"Torture is antithetical to our values, the rule of law and our national security interests," Mr. Mora says.
Nevertheless, as he realizes, selective prosecution is dangerous. What is the rationale for prosecuting a John Yoo or a Jay Bybee while excusing those they sought to please, like the former vice president and his staff, who ordered or implemented the practices? (Congress can impeach Judge Bybee if it wishes.) Given the ill will, reconciliation will take a long time, and may never come. Nothing will be possible, though, without first arriving at the truth.
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With or without religion, you would have good people doing good things and evil people doing evil things. But for good people to do evil things, that takes religion. - Steven Weinberg, 1999
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MoEnzyme
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Re:US Justice; These Interesting Times
« Reply #26 on: 2009-05-03 23:19:22 » |
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This has been an instructive topic on understanding Obama, these torture memos that is. While I refuse to label him as a dismal failure, I remain well aware of the ways in which Obama has still declined to come into full compliance with quite a lot of treaties that we once endorsed completely. However I like that he has embarked on a bit of a trajectory that we will never be able to stand down as long as he doesn't. On a cultural level, I think we still retain enough significant memetic DNA that everyone who really matters knows better re: torture if simply influenced in the right ways.
Releasing the memos was the first step. Backing off on his declaration that he wouldn't prosecute the authors of the memos . . . to me it displayed exactly the proper kind of flip-flop discretion that I hope for out of any worthy political leader. I expect that Obama may yet change his position a few more times for the media, but I think as a smart politician he knows what he ultimately signed up for the moment those memos hit the internets. I still expect a few feeble roadblocks from the Obama administration before he finally and ever so patiently decapitates (metaphorically of course) all remaining serious opposition to this final moral imperative which the meme demands.
Indeed, I'd like to prepare the CoV for a likely intermediate position. Some remaining media loudmouths may wail enough that Obama finally commits to only going after the professional licenses of those involved in the pollicy creation. Maybe even promising to not do anything more. Of course he wouldn't need to, and certainly no neo-con could be heard to complain since Bill Clinton himself surrendered his law license over his Monica Lewinsky testimony. And that's all Obama really needs to do, because the process would lay bare all the essential facts for every other prosecutor in the world with jurisdiction (which is most of them including many others in the US not directly in the federal system) to simply piggyback on.
Heck depending on how ugly it gets, he could probably even go back on his word especially if the US AG can seem to pressure him to do so, possibly even after some more local DA's jump the gun . . . who cares how it happens, but to my thinking the meme demands that it ultimately happens. And I think Obama understood that before he set it free.
-Mo
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Re:US Justice; These Interesting Times
« Reply #27 on: 2009-05-04 19:41:18 » |
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Prosecute This: Torture Was Used to Try to Link Saddam with 9/11
Obama's intent to immunize those who broke the law violates his constitutional duty to "take Care that the Laws be faithfully executed."
Source: AlterNet
Authors: Marjorie Cohn
Dated: 2009-05-01
Marjorie Cohn is a professor at Thomas Jefferson School of Law and president of the National Lawyers Guild. She is author of Cowboy Republic: Six Ways the Bush Gang Has Defied the Law and co-author of the new book, Rules of Disengagement: The Politics and Honor of Military Dissent. Her articles are archived at http://www.marjoriecohn.com.
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 that 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 the newly released report of the Senate Armed Services Committee. That link was never established.
President Obama released the four memos in response to a Freedom of Information Act request by the ACLU. They 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.
"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 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 Jay 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." 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.
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.
"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.
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."U.S. 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 compels us to refer all torture cases for prosecution or extradite the suspect to a country that will undertake a criminal investigation.Obama has made a political calculation to seek amnesty for the CIA torturers. 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.
The Senate Intelligence Committee revealed that Condoleezza Rice approved waterboarding in July 17, 2002 "subject to a determination of legality by the OLC." She got it two weeks later from 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.
Obama told AP's Jennifer Loven in the Oval Office: "With respect to those who formulated those legal decisions, I would say that is going to be more of a decision for the Attorney General within the parameters of various laws, and I don't want to prejudge that." 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 President must fulfill his constitutional duty to ensure that the laws are faithfully executed. 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.
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With or without religion, you would have good people doing good things and evil people doing evil things. But for good people to do evil things, that takes religion. - Steven Weinberg, 1999
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Re:US Justice; These Interesting Times
« Reply #28 on: 2009-05-05 19:22:48 » |
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This isn't official yet, although it wouldn't surprise me. I think some congressional democrats could pressure a change of mind if they open their own investigation. If and when US justice finally does the competant and right thing starting with the memo authors, it will probably be after several more political clashes. I do like, however, that they will move to revoke professional licenses. That's not nearly enough, but it is a start. -Mo
Source: No criminal charges expected against Bush-era lawyers who wrote torture memos
By DEVLIN BARRETT Associated Press Writer
WASHINGTON May 5, 2009 (AP)
Quote:| Justice Department officials have stopped short of recommending criminal charges against Bush administration lawyers who wrote secret memos approving harsh interrogation techniques of terror suspects. A person familiar with the inquiry, who spoke on condition of anonymity, says investigators recommended referring two of the three lawyers to state bar associations for possible disciplinary action. The person was not authorized to discuss the inquiry. |
full article: http://abcnews.go.com/Politics/wireStory?id=7508844
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Re:US Justice; These Interesting Times
« Reply #29 on: 2009-05-06 05:55:49 » |
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HENTOFF: Still a nation of laws, not men?
The 'dark side' will not lie quiet
Source: The Washington Times
Authors: Nat Hentoff
Dated: 2009-05-04
Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights. He is a member of the Reporters Committee for Freedom of the Press and a senior fellow at the Cato Institute.
President Obama insists he will not prosecute CIA operatives who engaged in the Bush administration's "enhanced interrogations" - although he recently released many of those authorizing "torture memos." In doing so, he admitted they reveal "our losing our moral bearings" (The Washington Post, April 21).
Yet the president also decided not to urge an investigation of those lawyers and others who "legitimized" these techniques because that would "involve a host of very complicated issues."
Mr. President, allow me to uncomplicate - for you and other interested Americans - the actual, specific U.S. laws and international treaties the CIA has systematically violated during interrogation of terrorism suspects. But weren't the CIA operators acting with legal approval from the very top of the chain of command? On April 22, the Senate Armed Services Committee, after a very extended investigation, released an answer to that use of the Nuremberg Defense. ("We were following orders.") "The fact is," the report made clear, "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." There was never a lawful basis for torture.
This, therefore, is the first of an intermittent series on what these war crimes were, and under which laws. In citing violations of international treaties we have signed and ratified, I remind the president that under Article 6 of the U.S. Constitution, "all treaties made, or which shall be made, under Authority of the United States, shall be the supreme law of the land."
To begin: The U.N. Convention Against Torture and Other Cruel, Inhuman Degrading Treatment or Punishment is the primary international law on torture. Signed by President Reagan in 1988, it was ratified by the Senate in 1994. It states: "Each State Party (signatory) shall ensure that all acts of torture are offenses under its criminal law." We have done that in the U.S. War Crimes Act (1996) and the Torture Victims Protection Act (1991).
The Convention Against Torture adds - very significantly for the current debate - "No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture. ... An order from a superior officer or a public authority may not be invoked as a justification of torture." We also have signed the Geneva Conventions, Article 146 of which mandates that each contracting party "shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, grave breaches [of the Geneva Conventions] - and shall bring such persons, regardless of their nationality, before its own courts."
You hear that, Mr. President? Moreover, Article 3 of the 1949 Geneva Conventions, which has been made part of our law, requires that any person - whether a prisoner of war, unprivileged belligerent, terrorist or noncombatant, is guaranteed freedom from "cruel treatment and torture" and "outrages upon personal dignity, in particular, humiliating and degrading treatment," including denial of process in case of trial.
These guarantees, Mr. President, apply "in all circumstances" and "at any time and in any place whatsoever." Maybe when professor Barack Obama was teaching constitutional law at the University of Chicago, he did not have occasion to teach a course in international treaties that have become embedded in U.S. law.
And former constitutional law litigator Glenn Greenwald (Salon, April 17) reminds us of the Charter of the International Tribunal at Nuremberg (Article  , in which we were involved. "The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires." But there was a much-praised tribunal at Nuremberg, and that defense didn't work there.
With regard to the authorizing Justice Department lawyers who creatively invented ways to leap over these laws and treaties, International law professor Jordan J. Paust of the University of Houston - in his essential book "Beyond the Law" (Cambridge University Press) - documents that "not since the Nazi era have so many lawyers been so clearly involved in international crimes concerning the treatment and interrogation of persons detained during war ... "[These were lawyers] directly advising how to deny protections in the future, [and such] denials are violations of the laws of war and [of] war crimes." Mr. Paust adds: "The full truth about conspiratorial and complicit involvement, and the embrace of what [former] Vice President Cheney has correctly described as 'the dark side,' remains partly hidden." But, Mr. Obama, more and more of the truth will break through because, as you said on April 16, "the United States is a nation of laws." Yet you keep saying you prefer to "look forward and not engage in retribution." Being believable again as a nation of laws is "retribution"?
As Rep. John Conyers, Michigan Democrat and chairman of the House Judiciary Committee, promises (the New York Times, April 18): "If our leaders are found to have violated the strict laws against torture, either by ordering those techniques without proper legal authority or by knowingly crafting fictions to justify the torture, they should be criminally prosecuted." [ Hermit : Unfortunately it seems more and more likely that the US is not going to even attempt to wash its own filthy linen. Sad.]
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With or without religion, you would have good people doing good things and evil people doing evil things. But for good people to do evil things, that takes religion. - Steven Weinberg, 1999
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