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Mohamed al-Khatani in September 2009.Mohamed al-Khatani in September 2009. [Source: US Defense Department]Military prosecutors at Guantanamo say they are going to file new war crimes charges against Mohamed al-Khatani, the so-called “20th hijacker” in the 9/11 plot. The senior official in charge of prosecutions at Guantanamo, Susan Crawford, dismissed similar charges against al-Khatani six months before (see May 13, 2008). Military officials now say that even though al-Khatani was originally interrogated using previously approved, then later disapproved, techniques (see August 8, 2002-January 15, 2003 and October 11, 2002), those previous interrogations will not make it impossible to try him. Speculation has been rife that Crawford dismissed the charges against al-Khatani over concerns that he was tortured at Guantanamo. (In 2009, Crawford will verify that al-Khatani was indeed tortured—see January 14, 2009). Colonel Lawrence Morris, the chief prosecutor at Guantanamo, says of al-Khatani, “His conduct is significant enough that he falls into the category of people who ought to be held accountable by being brought to trial.” According to evidence compiled by the 9/11 Commission, al-Khatani was slated to have been one of the “muscle hijackers” (see August 4, 2001). Lieutenant Colonel Bryan Broyles, al-Khatani’s defense lawyer, says new charges filed against his client would be disturbing. “It speaks about the moral bankruptcy of this whole process,” Broyles says, “that there’s nothing we can do to these people that is too much, that there are no consequences for our own misconduct.” [New York Times, 11/18/2008]

Entity Tags: Mohamed al-Khatani, Susan Crawford, Bryan Broyles, Lawrence J. Morris

Timeline Tags: Torture of US Captives

Federal Judge Richard Leon rules that the US government has unlawfully held five Algerian men at Guantanamo for nearly seven years (see January 18, 2002). Leon orders their release. Leon rules that the government’s case, based on a slender compilation of classified evidence, was too weak to justify the five men’s continued detention. The government’s case is based on a single “classified document from an unnamed source” for its central claim against the men, and the court has no way to accurately judge its credibility. “To rest on so thin a reed would be inconsistent with this court’s obligation,” Leon writes. He urges the Bush administration not to appeal the ruling, and recommends that they be released “forthwith.” Leon rules that a sixth Algerian, Bensayah Belkacem (see October 8, 2001), is being lawfully detained due to his demonstrable ties with al-Qaeda. The six are among the Guantanamo inmates who won a narrowly decided Supreme Court case recognizing their right to seek redress in the US court system (see June 22, 2008), and include Lakhdar Boumediene, for whom the Court’s ruling was named. Leon, a Republican appointee previously considered sympathetic to the Bush administration’s position on the detention of suspects, urges the government not to appeal his ruling: such an appeal could take as much as two years, and, he notes, “Seven years of waiting for our legal system to give them an answer to a question so important is, in my judgment, more than plenty.” If the government chooses not to appeal, the lawyers for the detainees expect them to be released into Bosnia, where they were arrested in early 2002. The Justice Department calls the ruling “perhaps an understandable consequence of the fact that neither the Supreme Court nor Congress has provided rules on how these habeas corpus cases should proceed in this unprecedented context.” One of the detainees’ lawyers, Robert Kirsch, says the case illustrates “the human cost of what can happen when mistakes are made at the highest levels of our government, and no one has the courage to acknowledge those mistakes.” Other detainee lawyers say the case is a broad repudiation of the Bush administration’s attempts to use the Guantanamo facility to avoid the scrutiny of US judges. Lawyer Zachary Katznelson, a member of the British human rights group Reprieve, says, “The decision by Judge Leon lays bare the scandalous basis on which Guantánamo has been based—slim evidence of dubious quality.” The case was not strengthened by the Bush administration’s pursuit of it: originally the six were charged with planning a bomb attack on the US Embassy in Sarajevo, Bosnia, but in October, Justice Department lawyers abruptly withdrew those accusations. [New York Times, 11/20/2008; National Review, 11/20/2008] The five will be released the following month (see December 2008).

Entity Tags: Reprieve, Bensayah Belkacem, Al-Qaeda, Bush administration (43), Lakhdar Boumediene, Zachary Katznelson, US Supreme Court, Richard J. Leon, US Department of Justice, Robert Kirsch

Timeline Tags: Civil Liberties

A former Air Force interrogator writing under the pseudonym “Matthew Alexander” pens an impassioned plea against the use of torture for the Washington Post. Alexander is a former Special Operations soldier with war experience in Bosnia and Kosovo before volunteering to serve as a senior interrogator in Iraq from February 2006 through August 2006. He writes that while he served in Iraq, his team “had successfully hunted down one of the most notorious mass murderers of our generation, Abu Musab al-Zarqawi, the leader of al-Qaeda in Iraq and the mastermind of the campaign of suicide bombings that had helped plunge Iraq into civil war.” Yet upon his return, Alexander writes that he was less inclined to celebrate American success than “consumed with the unfinished business of our mission: fixing the deeply flawed, ineffective and un-American way the US military conducts interrogations in Iraq.” Since then, Alexander has written a book, How to Break a Terrorist: The US Interrogators Who Used Brains, Not Brutality, to Take Down the Deadliest Man in Iraq (see December 2-4, 2008). He writes that interrogation techniques used against terror suspects in Iraq both “betrays our traditions” and “just doesn’t work.”
Army Used 'Guantanamo Model' of Interrogation - When he joined the team hunting for al-Zarqawi, he was astonished to find that “[t]he Army was still conducting interrogations according to the Guantanamo Bay model: Interrogators were nominally using the methods outlined in the US Army Field Manual, the interrogators’ bible, but they were pushing in every way possible to bend the rules—and often break them.… These interrogations were based on fear and control; they often resulted in torture and abuse.”
New and Different Methodology - Alexander refused to allow his interrogators to use such tactics, he writes, and instead taught them a new set of practices: “one based on building rapport with suspects, showing cultural understanding and using good old-fashioned brainpower to tease out information. I personally conducted more than 300 interrogations, and I supervised more than 1,000. The methods my team used are not classified (they’re listed in the unclassified Field Manual), but the way we used them was, I like to think, unique. We got to know our enemies, we learned to negotiate with them, and we adapted criminal investigative techniques to our work (something that the Field Manual permits, under the concept of ‘ruses and trickery’). It worked. Our efforts started a chain of successes that ultimately led to Zarqawi.” Alexander writes that his attitude, and that of his colleagues, changed during this time. “We no longer saw our prisoners as the stereotypical al-Qaeda evildoers we had been repeatedly briefed to expect; we saw them as Sunni Iraqis, often family men protecting themselves from Shi’ite militias and trying to ensure that their fellow Sunnis would still have some access to wealth and power in the new Iraq. Most surprisingly, they turned out to despise al-Qaeda in Iraq as much as they despised us, but Zarqawi and his thugs were willing to provide them with arms and money.” When Alexander pointed this out to General George Casey, then the top US commander in Iraq, Casey ignored him. Alexander writes that Casey’s successor, General David Petraeus, used some of the same “rapport-building” techniques to help boost the “Anbar Awakening,” which saw tens of thousands of Sunnis repudiate al-Zarqawi and align themselves with the US. And, the techniques persuaded one of al-Zarqawi’s associates to tell where he was hiding, giving the US a chance to find and kill him (see June 8, 2006).
Little Overall Change - Even the success in locating and killing al-Zarqawi had little effect on US interrogation methods outside of Alexander’s unit. He left Iraq still unsettled about the methods being used; shortly after his return, he was horrified at news reports that the CIA had waterboarded detainees to coerce information from them (see Between May and Late 2006). Such hard-handed techniques are not only illegal and morally reprehensible, Alexander notes, they usually don’t work. He writes: “Torture and abuse are against my moral fabric. The cliche still bears repeating: Such outrages are inconsistent with American principles. And then there’s the pragmatic side: Torture and abuse cost American lives.” He remembers one jihadist who told him: “I thought you would torture me, and when you didn’t, I decided that everything I was told about Americans was wrong. That’s why I decided to cooperate.”
Torture Breeds Terrorism - Alexander writes that while in Iraq, he learned that the primary reason foreign jihadists came to Iraq to fight Americans was because of their outrage and anger over the abuses carried out at Guantanamo and Abu Ghraib. “Our policy of torture was directly and swiftly recruiting fighters for al-Qaeda in Iraq,” he writes. “The large majority of suicide bombings in Iraq are still carried out by these foreigners. They are also involved in most of the attacks on US and coalition forces in Iraq. It’s no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse. The number of US soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001. How anyone can say that torture keeps Americans safe is beyond me—unless you don’t count American soldiers as Americans.”
Writing about His Experiences - Alexander began writing about his time in Iraq after returning to the US. When he submitted his book for the Defense Department’s review (standard procedure to ensure no classified information is being released), he writes that he “got a nasty shock.” The Pentagon delayed the review past the first scheduled printing date, then redacted what Alexander says was “an extraordinary amount of unclassified material—including passages copied verbatim from the Army’s unclassified Field Manual on interrogations and material vibrantly displayed on the Army’s own Web site.” Alexander was forced to file a lawsuit to get the review completed and to appeal the redactions. “Apparently, some members of the military command are not only unconvinced by the arguments against torture; they don’t even want the public to hear them.”
Conclusions - How we conduct ourselves in the “war on terror” helps define who we are as Americans, Alexander writes. “Murderers like Zarqawi can kill us, but they can’t force us to change who we are. We can only do that to ourselves.” It is up to Americans, including military officers directly involved in the battle against terrorist foes, “to protect our values not only from al-Qaeda but also from those within our own country who would erode them.” He continues: “We’re told that our only options are to persist in carrying out torture or to face another terrorist attack. But there truly is a better way to carry out interrogations—and a way to get out of this false choice between torture and terror.” With the ascension of Barack Obama to the White House, Alexander describes himself as “quite optimistic” that the US will renounce torture. “But until we renounce the sorts of abuses that have stained our national honor, al-Qaeda will be winning. Zarqawi is dead, but he has still forced us to show the world that we do not adhere to the principles we say we cherish. We’re better than that. We’re smarter, too.” [Washington Post, 11/30/2008]

Entity Tags: Matthew Alexander, US Department of Defense, US Department of the Air Force, US Department of the Army, Central Intelligence Agency, Barack Obama, David Petraeus, Abu Musab al-Zarqawi, Al-Qaeda in Iraq, George Casey

Timeline Tags: Torture of US Captives

Five Algerian detainees are released from Guantanamo after seven years’ imprisonment without charges ever being formally filed against them. They are released after a Supreme Court ruling ordered them granted habeas corpus rights in US courts (see June 22, 2008), and after a federal judge orders their detention to end (see November 20, 2008). The five tell reporters that their time in Guantanamo was hellish. “Nobody can imagine how horrible it was. Even the devil couldn’t have created such a bad, bad place,” says one detainee, computer technician Mustafa Ait Idir. “I was questioned and beaten more than 500 times during those seven years. The guards used to come in groups of six or seven, always using a spray against us first, and then the beatings would start.” Idir says he saw doctors participate in the abuse of prisoners: “I once saw a doctor with a group of guards. The doctor pointed to different places on a body of a prisoner saying ‘hit him here.’ After the beating, there were no visible marks on the body but that man was in such pain he couldn’t move.” Lawyer Stephen Oleskey says his client, Lakhdar Boumediene, had been force-fed through a nasal tube after he went on a seven-month hunger strike. “Twice a day he is strapped onto a chair at seven points,” says Oleskey of his client’s ordeal. “One side of his nose is broken, so they put it [the tube] in the other side… Sometimes it goes to his lung instead of his stomach. He can’t say anything because he has the mask on: that’s torture.” Idir recalls being confined in bare cells, often in complete darkness, others with powerful lights that prevented him from sleeping. [Agence France-Presse, 1/22/2009]

Entity Tags: US Supreme Court, Lakhdar Boumediene, Stephen Oleskey, Mustafa Ait Idir

Timeline Tags: Torture of US Captives

Cover of ‘How to Break a Terrorist.’Cover of ‘How to Break a Terrorist.’ [Source: Military (.com)]Former Iraq interrogator “Matthew Alexander” (a pseudonym) publishes his book How to Break a Terrorist: The US Interrogators Who Used Brains, Not Brutality, to Take Down the Deadliest Man in Iraq. Alexander has just published an editorial in the Washington Post detailing his success in using non-coercive interrogation techniques to locate terrorist leader Abu Musab al-Zarqawi, and denouncing the use of torture by US interrogators in Iraq and Guantanamo (see November 30, 2008). Time’s Gilbert Cruz writes, “Structured around a series of interrogations, [Alexander’s book] details the battle of wills between ‘gators [Alexander’s term for interrogators] and suspects as well as the internal fight between Alexander’s team and the old-school military inquisitors used to more brutal methods of questioning.” In his book, Alexander writes that these “old-school” interrogation tactics not only failed to elicit useful information, they “led down the disastrous path to the Abu Ghraib scandal.” Cruz calls the book “a claustrophobic read,” bringing the reader into the interrogation rooms with him, his partner, and the detainee during marathon questioning sessions. However, “Alexander scarcely discusses the theories behind his interrogation strategy, its derivation, or whether the US military continues to use it.” He concludes, “[A] fuller epilogue could have broadened the story beyond this single set of circumstances.” [Time, 12/2/2008]
'Times Where You Have to be Harsher' - In an interview about the book, Fox News host Sean Hannity attempts to assert that there will be times when torture is necessary to gain critical information. Alexander refuses to agree. Hannity says: “But I do think there’s going to be times where you have to be harsher. That’s an outsider’s view. Never? It never will work?” Alexander replies: “No.… I don’t say that torture doesn’t work; it does work on occasion. But what I say is that there’s better ways to do it.” [Fox News, 12/3/2008]
'Extremely Ineffective and Counter-Productive' - In another interview the same evening, Alexander tells MSNBC’s Keith Olbermann that torture is “extremely ineffective and counter-productive to what we are trying to accomplish in both the short-term and the long-term.” He explains: “In the short-term, when you torture somebody, it hardens their resolve, the information that you get is unreliable. And if you do get reliable information, you’re able to stop a terrorist attack, al-Qaeda is then going to use the fact that we torture people to recruit new members, and then we’re going to have to deal with a whole new wave of terrorists.” In the MSNBC interview, Alexander calls for an outright ban on torture and the retraining of US interrogators in non-coercive methods of questioning. [MSNBC, 12/4/2008]

Entity Tags: Matthew Alexander, Gilbert Cruz, Keith Olbermann, Sean Hannity

Timeline Tags: Torture of US Captives

The Malaysian government releases alleged al-Qaeda operative Yazid Sufaat. Malaysian Interior Minister Datuk Seri Syed Hamid Albar announces that Sufaat and five other detained Islamist militants are being freed because “they are no longer a threat and will no longer pose a threat to public order.” Albar adds that Sufaat “has been rehabilitated and can return to society.” Sufaat was arrested in Malaysia in December 2001 (see December 19, 2001). However, he was never tried or even charged. Malaysian law allows suspects to be held for up to two years without charge, and the two year period can be renewed multiple times. But apparently the Malaysian government decided to release him rather than put him on trial or hold him another two years.
Sufaat's History - Sufaat, a Malaysian, received a biological sciences degree in the US in the 1980s. There are allegations that he led al-Qaeda’s effort to get biological and chemical weapons until his arrest (see December 19, 2001). An important al-Qaeda summit was held in his apartment in January 2000; at least two 9/11 hijackers attended (see January 5-8, 2000). Later in 2000, Sufaat hosted al-Qaeda operative Zacarias Moussaoui, and he provided papers that helped Moussaoui get in the US (see September-October 2000).
Concern about Sufaat's Release - Sufaat is supposed to be kept under close observation. However, Newsweek reports that US counterterrorism officials have “expressed doubt that Sufaat has abandoned his radical al-Qaeda views or his desire to attack the United States with biological weapons.” One unnamed official says, “This individual is considered dangerous.” [Newsweek, 12/16/2008]

Entity Tags: Yazid Sufaat, Datuk Seri Syed Hamid Albar, Zacarias Moussaoui

Timeline Tags: Complete 911 Timeline

Five high-value detainees being held at Guantanamo tell a military tribunal they wish to plead guilty to charges related to the 9/11 attacks, but refuse to enter a guilty plea at this time. The five are alleged 9/11 mastermind Khalid Shaikh Mohammed (KSM); Ramzi bin al-Shibh, who helped coordinate the attacks; Ali Abdul Aziz Ali and Mustafa Ahmed al-Hawsawi, who assisted some of the 19 hijackers in Asia; and Khallad bin Attash, who attended a meeting with two of the hijackers in January 2000 (see January 5-8, 2000). The plea is not entered at this time, because it is not yet certain bin al-Shibh and al-Hawsawi are mentally competent to stand trial, and KSM says they all want to plead together. The judge, Colonel Stephen Henley, has already ordered a probe into the two men’s mental competence. The five say that they made their decision “without being under any kind of pressure, threat, intimidations, or promise from any party,” although an investigation of potential pressure would have to be conducted before such plea could be accepted. If convicted, the five men would face the death penalty, although four of them, including KSM, have declared a desire to become martyrs. KSM also says he wants to get rid of his military lawyer, who previously served in Iraq. For the first time, the hearing is watched live in the courtroom by nine relatives of people killed in the 9/11 attacks. [BBC, 12/8/2008]

Entity Tags: Khallad bin Attash, Stephen Henley, Mustafa Ahmed al-Hawsawi, Khalid Shaikh Mohammed, Ali Abdul Aziz Ali, Ramzi bin al-Shibh

Timeline Tags: Torture of US Captives, Complete 911 Timeline, 9/11 Timeline

The Senate Armed Services Committee releases a classified 261-page report on the use of “harsh” or “enhanced interrogation techniques”—torture—against suspected terrorists by the US. The conclusion of the report will be released in April 2009 (see April 21, 2009). The report will become known as the “Levin Report” after committee chairman Carl Levin (D-MI). Though the report itself is classified, the committee releases the executive summary to the public.
Top Bush Officials Responsible for Torture - One of the report’s findings is that top Bush administration officials, and not a “few bad apples,” as many of that administration’s officials have claimed, are responsible for the use of torture against detainees in Guantanamo, Afghanistan, Iraq, and elsewhere.
Began Shortly after 9/11 - The report finds that US officials began preparing to use “enhanced interrogation” techniques just a few months after the 9/11 attacks, and well before Justice Department memos declared such practices legal. The program used techniques practiced in a US military program called Survival, Evasion, Resistance, and Escape (SERE—see December 2001), which trains US military personnel to resist questioning by foes who do not follow international bans on torture. As part of SERE training, soldiers are stripped naked, slapped, and waterboarded, among other techniques. These techniques were “reverse-engineered” and used against prisoners in US custody. Other techniques used against prisoners included “religious disgrace” and “invasion of space by a female.” At least one suspected terrorist was forced “to bark and perform dog tricks” while another was “forced to wear a dog collar and perform dog tricks” in a bid to break down their resistance.
Tried to 'Prove' Links between Saddam, Al-Qaeda - Some of the torture techniques were used before the March 2003 invasion of Iraq (see March 19, 2003). Much of the torture of prisoners, the report finds, was to elicit information “proving” alleged links between al-Qaeda and the regime of Saddam Hussein. US Army psychiatrist Major Paul Burney says of some Guantanamo Bay interrogations: “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. 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.” Others did not mention such pressure, according to the report. [Senate Armed Services Committee, 12/11/2008 pdf file; Agence France-Presse, 4/21/2009] (Note: Some press reports identify the quoted psychiatrist as Major Charles Burney.) [McClatchy News, 4/21/2009] A former senior intelligence official later says: “There were two reasons why these interrogations were so persistent, and why extreme methods were used. The main one is that everyone was worried about some kind of follow-up attack [after 9/11]. But for most of 2002 and into 2003, Cheney and Rumsfeld, especially, were also demanding proof of the links between al-Qaeda and Iraq that [former Iraqi exile leader Ahmed] Chalabi (see November 6-8, 2001) and others had told them were there.… There was constant pressure on the intelligence agencies and the interrogators to do whatever it took to get that information out of the detainees, especially the few high-value ones we had, and when people kept coming up empty, they were told by Cheney’s and Rumsfeld’s people to push harder.” [McClatchy News, 4/21/2009]
Warnings of Unreliability from Outset - Almost from the outset of the torture program, military and other experts warned that such techniques were likely to provide “less reliable” intelligence results than traditional, less aggressive approaches. In July 2002, a memo from the Joint Personnel Recovery Agency (JRPA), which oversees the SERE training program, warned that “if an interrogator produces information that resulted from the application of physical and psychological duress, the reliability and accuracy of this information is in doubt. In other words, a subject in extreme pain may provide an answer, any answer, or many answers in order to get the pain to stop” (see July 2002). [Senate Armed Services Committee, 12/11/2008 pdf file; Agence France-Presse, 4/21/2009]
Ignoring Military Objections - When Pentagon general counsel William Haynes asked Defense Secretary Donald Rumsfeld to approve 15 of 18 recommended torture techniques for use at Guantanamo (see December 2, 2002), Haynes indicated that he had discussed the matter with three officials who agreed with him: Deputy Defense Secretary Paul Wolfowitz, Undersecretary of Defense Douglas Feith, and General Richard Myers. Haynes only consulted one legal opinion, which senior military advisers had termed “legally insufficient” and “woefully inadequate.” Rumsfeld agreed to recommend the use of the tactics. [Senate Armed Services Committee, 12/11/2008 pdf file]

Entity Tags: William J. Haynes, Paul Wolfowitz, Richard (“Dick”) Cheney, Richard B. Myers, Paul Burney, Joint Personnel Recovery Agency, Douglas Feith, Donald Rumsfeld, Ahmed Chalabi, Senate Armed Services Committee, Carl Levin, US Department of Justice, Bush administration (43)

Timeline Tags: Torture of US Captives

In his first exit interview after the November 2008 elections, Vice President Dick Cheney unapologetically acknowledges that the US used waterboarding on suspected terrorists, and says that the Guantanamo Bay prison should remain open until terrorism has been eradicated. Methods such as waterboarding were indeed used on at least one subject, suspected 9/11 plotter Khalid Shaikh Mohammed (see May 2002-2003, Shortly After February 29 or March 1, 2003, March 7 - Mid-April, 2003, After March 7, 2003, and May 2003), Cheney says, but he goes on to claim that those methods do not constitute torture. “On the question of so-called torture, we don’t do torture,” he says. “We never have. It’s not something that this administration subscribes to. I think those who allege that we’ve been involved in torture, or that somehow we violated the Constitution or laws with the terrorist surveillance program, simply don’t know what they’re talking about.” Asked if he authorized the waterboarding of Mohammed, Cheney says: “I was aware of the program, certainly, and involved in helping get the process cleared, as the agency [CIA] in effect came in and wanted to know what they could and couldn’t do. And they talked to me, as well as others, to explain what they wanted to do. And I supported it.” Cheney says that waterboarding Mohammed produced critically important information: “There was a period of time there, three or four years ago, when about half of everything we knew about al-Qaeda came from that one source. So it’s been a remarkably successful effort. I think the results speak for themselves.” Cheney adds that the invasion of Iraq and the overthrow of Saddam Hussein were justified regardless of whether that nation possessed weapons of mass destruction. The only thing US intelligence got wrong, he says, “was that there weren’t any stockpiles. What they found was that Saddam Hussein still had the capability to produce weapons of mass destruction. He had the technology, he had the people, he had the basic feed stock.” [ABC News, 12/15/2008; ABC News, 12/15/2008] In the US, waterboarding has been considered a war crime at least as far back as World War II (see 1947, January 21, 1968, and November 29, 2007); in 2007, a judge concurred (see November 4, 2007). A former senior Justice Department official determined that waterboarding is torture (see Late 2004-Early 2005), as did a former deputy secretary of state who was subjected to waterboarding as part of his military training (see January 21, 2009) and a US senator who was a prisoner of war in Vietnam (see April 20, 2009). The CIA suspended the use of waterboarding in 2005 after determining that the technique was most likely ineffective and certainly illegal (see Shortly After April 28, 2004-February 2005), and banned it entirely in 2006 (see Between May and Late 2006); the CIA’s Inspector General determined that the practice was torture (see March 6, 2009). The FBI and DIA have forbidden their agents from using the technique (see May 13, 2004 and February 7, 2008). The US military banned its use in 2006 (see September 6, 2006). The king of Saudi Arabia will accuse the Bush administration of torturing prisoners in its custody (see April 24, 2009). The information derived from torturing Mohammed and other prisoners is widely considered unreliable (see August 6, 2007, April 16, 2009, December 18, 2008, and March 29, 2009), and may well have been initially designed to elicit false confessions (see April 22, 2009).

Entity Tags: Central Intelligence Agency, Al-Qaeda, Bush administration (43), Richard (“Dick”) Cheney, Saddam Hussein, Khalid Shaikh Mohammed

Timeline Tags: Torture of US Captives

Vanity Fair reporter David Rose publishes an extensive examination of the US’s use of torture to extract information from a number of suspected militant Islamists, focusing on three subjects: Abu Zubaida (see April - June 2002, Mid-April-May 2002, May 2002-2003, Mid-May, 2002, Mid-May 2002 and After, June 2002, and December 18, 2007), Khalid Shaikh Mohammed (see May 2002-2003, March 7 - Mid-April, 2003, After March 7, 2003, and August 6, 2007), and Binyam Mohamed (see May 17 - July 21, 2002, July 21, 2002 -- January 2004, and January-September 2004). The conclusion he draws, based on numerous interviews with current and former CIA, military, and administration sources, is that torture not only does not work to provide reliable intelligence, it provides so much false information that it chokes the intelligence system and renders the intelligence apparatus unreliable. One CIA official tells Rose: “We were done a tremendous disservice by the [Bush] administration. We had no background in this; it’s not something we do. They stuck us with a totally unwelcome job and left us hanging out to dry. I’m worried that the next administration is going to prosecute the guys who got involved, and there won’t be any presidential pardons at the end of it. It would be okay if it were [former Attorney Generals] John Ashcroft or Alberto Gonzales. But it won’t be. It’ll be some poor GS-13 who was just trying to do his job.”
Enormous Waste of Resources - A veteran FBI counterterrorism agent says the waste of time and resources on false leads generated through torture has been enormous. “At least 30 percent of the FBI’s time, maybe 50 percent, in counterterrorism has been spent chasing leads that were bullsh_t,” he says. “There are ‘lead squads’ in every office trying to filter them. But that’s ineffective, because there’s always that ‘What if?’ syndrome. I remember a claim that there was a plot to poison candy bought in bulk from Costco. You follow it because someone wants to cover himself. It has a chilling effect. You get burned out, you get jaded. And you think, ‘Why am I chasing all this stuff that isn’t true?’ That leads to a greater problem—that you’ll miss the one that is true. The job is 24-7 anyway. It’s not like a bank job. But torture has made it harder.”
No Proof of Efficacy of Torture - Former FBI counterterrorism specialist Dan Cloonan points to the near-total lack of proof the administration has been able to advance to show that torture works. “The proponents of torture say, ‘Look at the body of information that has been obtained by these methods,’” he says. “But if KSM [Khalid Shaikh Mohammed] and Abu Zubaida did give up stuff, we would have heard the details. What we got was pabulum.” A former CIA officer says: “Why can’t they say what the good stuff from Abu Zubaida or KSM is? It’s not as if this is sensitive material from a secret, vulnerable source. You’re not blowing your source but validating your program. They say they can’t do this, even though five or six years have passed, because it’s a ‘continuing operation.’ But has it really taken so long to check it all out?”
Propaganda Value - Officials who analyzed Zubaida’s interrogation reports say that his reports were given such credence within the White House not because of the American lives they would supposedly save, but because they could be used to rebut those who criticized the Iraq invasion. “We didn’t know he’d been waterboarded and tortured when we did that analysis, and the reports were marked as credible as they could be,” says a former Pentagon analyst. “The White House knew he’d been tortured. I didn’t, though I was supposed to be evaluating that intelligence.” He was unable to draw valid conclusions about the importance of Zubaida’s confessions without knowing how the information was extracted. “It seems to me they were using torture to achieve a political objective,” he says. “I cannot believe that the president and vice president did not know who was being waterboarded, and what was being given up.”
False Claims of Preventing London Attack - President Bush has claimed that secret CIA black site interrogations “helped foil a plot to hijack passenger planes and fly them into Heathrow [Airport] and London’s Canary Wharf” (see October 6, 2005). The former head of Scotland Yard’s anti-terrorist branch, Peter Clarke, who served through May 2008 and helped stop several jihadist attacks, says Bush’s claim is specious. Clarke says it is possible that al-Qaeda had considered some sort of project along the lines of Bush’s assertion, but if it had, it was nowhere near fruition. “It wasn’t at an advanced stage in the sense that there were people here in the UK doing it,” he says. “If they had been, I’d have arrested them.” No terror plot of which Clarke is aware has been foiled due to information gathered due to torture.
FBI Director Confirms No Plots Disrupted by Torture Interrogations - Rose concludes by quoting an interview he held with FBI Director Robert Mueller in April 2008. Rose lists a number of plots disrupted by the FBI, all “foiled by regular police work.” He asked Mueller if he was aware of any attacks on America that had been disrupted thanks to what the administration calls “enhanced techniques.” Mueller responded, “I’m really reluctant to answer that.” He paused, looked at an aide, then said quietly, “I don’t believe that has been the case.” [Vanity Fair, 12/16/2008] On April 21, 2009, a spokesman for Mueller will say, “The quote is accurate.” [New York Times, 4/22/2008]

Entity Tags: Central Intelligence Agency, Bush administration (43), Alberto R. Gonzales, Abu Zubaida, US Department of Defense, Robert S. Mueller III, Peter Clarke, Khalid Shaikh Mohammed, Federal Bureau of Investigation, David Rose, George W. Bush, Dan Cloonan, John Ashcroft, Binyam Mohamed

Timeline Tags: Torture of US Captives

Newsweek reveals that Thomas Tamm, a former high-level Justice Department official, was one of the whistleblowers who revealed the government’s illegal domestic wiretapping program, known as “Stellar Wind,” to the New York Times (see December 15, 2005). Tamm, an ex-prosecutor with a high security clearance, learned of the program in the spring of 2004 (see Spring 2004).
Intense FBI Scrutiny - As of yet, Tamm has not been arrested as one of the leakers in the criminal leak investigation ordered by President Bush (see December 30, 2005), though since the December 2005 publication, Tamm has remained under Justice Department suspicion—FBI agents have raided his home, hauled away his personal possessions, and relentlessly questioned his family and friends (see August 1, 2007). He no longer has a government job, and is having trouble finding steady work as a lawyer. He has resisted pressure to plead to a felony charge of divulging classified information. Newsweek’s Michael Isikoff writes, “[H]e is living under a pall, never sure if or when federal agents might arrest him.” Perhaps his biggest regret is the impact the FBI investigation has had on his wife and children. “I didn’t think through what this could do to my family,” he says. But, “I don’t really need anybody to feel sorry for me,” he says. “I chose what I did. I believed in what I did.”
No Decision to Prosecute Yet - The Justice Department has deferred a decision over whether to arrest and prosecute Tamm until after the Bush administration leaves office and a new attorney general takes over the department. Both President-elect Barack Obama and the incoming Attorney General, Eric Holder, have denounced the warrantless wiretapping program. In one speech Holder gave in June 2008, he said that President Bush had acted “in direct defiance of federal law” by authorizing the NSA program. Former US Attorney Asa Hutchinson, who is helping in Tamm’s defense, says: “When I looked at this, I was convinced that the action he took was based on his view of a higher responsibility. It reflected a lawyer’s responsibility to protect the rule of law.” Hutchinson has no use for the idea, promulgated by Bush officials and conservative pundits, that the Times story damaged the “war on terror” by alerting al-Qaeda terrorists to Stellar Wind and other surveillance programs. “Anybody who looks at the overall result of what happened wouldn’t conclude there was any harm to the United States,” he says. Hutchinson is hopeful that Holder’s Justice Department will drop its investigation of Tamm.
The Public 'Ought to Know' about NSA Eavesdropping - Recently Tamm decided to go public with his story, against the advice of his lawyers. “I thought this [secret program] was something the other branches of the government—and the public—ought to know about,” he tells Isikoff. “So they could decide: do they want this massive spying program to be taking place?… If somebody were to say, who am I to do that? I would say, ‘I had taken an oath to uphold the Constitution.’ It’s stunning that somebody higher up the chain of command didn’t speak up.” Tamm also admits that he leaked information to the Times in part over his anger at other Bush administration policies for the Justice Department, including its aggressive pursuit of death penalty cases, and its use of “renditions” and “enhanced” interrogation techniques against terrorist suspects. He insists that he divulged no “sources and methods” that might compromise national security when he spoke to the Times. He could not tell the Times reporters anything about the NSA program, he says, because he knew nothing specific about the program. As Isikoff writes, “All he knew was that a domestic surveillance program existed, and it ‘didn’t smell right.’” (Times reporter Eric Lichtblau refuses to confirm if Tamm was one of his sources for the stories he wrote with fellow Times reporter James Risen.) [Newsweek, 12/22/2008]

Entity Tags: Michael Isikoff, Bush administration (43), Barack Obama, Asa Hutchinson, ’Stellar Wind’, Eric Holder, Eric Lichtblau, Newsweek, US Department of Justice, Federal Bureau of Investigation, Thomas Tamm, George W. Bush

Timeline Tags: Civil Liberties

A CIA drone strike kills two al-Qaeda leaders, Usama al-Kini and Sheikh Ahmed Salim Swedan, in Pakistan’s tribal region. Al-Kini, a Kenyan also known as Fahid Muhammad Ally Msalam, is said to be al-Qaeda’s chief of operations in Pakistan since 2007. Swedan, also a Kenyan, is al-Kini’s long-time deputy. Both men are said to be linked to a recent series of suicide bombings in Pakistan, including a September 16 bombing of the Marriott Hotel in Islamabad that killed 53 people. Both are said to have had central roles in planning the 1998 US embassy bombings (see 10:35-10:39 a.m., August 7, 1998). The FBI had a $5 million bounty for their capture. An anonymous US counterterrorism official says that al-Kini is one of the top 10 highest ranking terrorists the CIA ever killed or captured. The drone strike is said to have hit a building being used for explosives training near the town of Karikot in South Waziristan. [Washington Post, 1/9/2009]

Entity Tags: Al-Qaeda, Usama al-Kini, Sheikh Ahmed Salim Swedan, Central Intelligence Agency

Timeline Tags: Complete 911 Timeline

Judge Vaughn Walker rules that “sufficient facts” exist to keep alive a lawsuit brought by the defunct Islamic charity Al Haramain, which alleges it was subjected to illegal, warrantless wiretapping by the US government (see February 28, 2006). The lawsuit centers on a Top Secret government document accidentally disclosed to plaintiffs’ lawyers Wendell Belew and Asim Ghafoo that allegedly proves the claim of illegal wiretapping; previous court rulings forced Belew and Ghafoo to return the document to the government and prohibited its use in the lawsuit. The lawsuit is widely viewed as a test case to decide in court whether the Bush administration abused its power by authorizing a secret domestic spying program (see Spring 2004 and December 15, 2005). Jon Eisenberg, the lawyer for Belew and Ghafoo, says it does not matter whether the case pertains to the Bush administration or the incoming Obama administration. “I don’t want President Obama to have that power any more than I do President Bush,” he says. Because the lawsuit contains sufficient evidence even without the Top Secret document, Walker rules, it can continue. “The plaintiffs have alleged sufficient facts to withstand the government’s motion to dismiss,” he writes. Therefore, he adds, the law demands that they be allowed to review the classified document, and others, to determine whether the lawyers were spied on illegally and whether Bush’s spy program was unlawful. “To be more specific, the court will review the sealed document ex parte and in camera,” Walker writes. “The court will then issue an order regarding whether plaintiffs may proceed—that is, whether the sealed document establishes that plaintiffs were subject to electronic surveillance not authorized by FISA” (the Foreign Intelligence Surveillance Act—see 1978). [Wired News, 1/5/2009]

Entity Tags: Vaughn Walker, Al Haramain Islamic Foundation, Asim Ghafoo, Jon Eisenberg, Bush administration (43), Wendell Belew, Foreign Intelligence Surveillance Act, Obama administration

Timeline Tags: Civil Liberties

Newsweek publishes a range of responses to its article about Justice Department whistleblower Thomas Tamm (see December 22, 2008), who alerted the New York Times to the Bush administration’s illegal domestic wiretapping program “Stellar Wind” (see Spring 2004 and December 15, 2005). Most are extremely supportive of Tamm; Newsweek writes, “Nearly all labeled Tamm a hero.” One reader wonders why “few in the Justice Department were as troubled as Tamm about the illegality of the secret domestic wiretapping program or had the courage of his convictions.” Another notes, “Whistle-blowers like him are heroes because they are protecting ‘We the people.’” A Milwaukee reader, Harvey Jay Goldstein, suggests that President-elect Obama honor Tamm’s courage and service by “issuing him a pardon” and then “seek indictments against those involved in authorizing and carrying out the illegal program, including President Bush and Vice President Cheney.” The reader is “appalled” that Tamm “is being harassed and persecuted by the FBI (see August 1, 2007) for his part in disclosing the coverup of a program that originated in the Oval Office.” He calls Tamm “a national hero who had the guts to do what he thought was right and wasn’t intimidated by the power of the presidency.” Goldstein accuses Bush and Cheney of “undermining and circumventing the protections of the First and Fourth amendments [in what] are perhaps the most egregious attempts to consolidate absolute power within the executive branch since the dark days of Richard Nixon.” Illinois reader Leonard Kliff, a World War II veteran, writes: “It is disgusting that this man is on the run when he should be receiving a medal for his actions. I am sure the majority of Americans fully support him.” The Reverend Joseph Clark of Maryland calls Tamm “a common man doing his job—upholding the Constitution of the United States and the rule of law.… Thank God for people like Thomas Tamm who spoke when no one else was finding a voice.… This nation is made up of people like Tamm, and that is our strength.” And a former schoolmate of Tamm’s, Peter Craig, writes: “No one who attended Landon School in Bethesda, Md., in the late 1960s, as I did, will be at all surprised to learn that Tom Tamm ended up risking it all to do the right thing. In his senior year, for instance, Tom, then the president of the student council, decided to turn himself in to the rest of the council for some minor infraction unknown to anyone else (and ultimately warranting no punishment). It showed the same character and a burgeoning morality that years later would compel him to do what he did.” Only one published letter, from Bob Spickelmier, expresses the view that Tamm should go to jail for his actions. [Newsweek, 1/10/2009]

Entity Tags: Thomas Tamm, Bob Spickelmier, ’Stellar Wind’, Bush administration (43), Newsweek, Harvey Jay Goldstein, Leonard Kliff, US Department of Justice, Peter Craig, Joseph Clark

Timeline Tags: Civil Liberties

Sparked by the official confirmation that Guantanamo detainee Mohamed al-Khatani was tortured (see January 14, 2009), Amnesty International calls for the incoming Obama administration and Congress to launch an independent commission of inquiry into human rights violations in the “war on terror.” In a press release, Amnesty International writes: “Torture is a crime under international law. The USA is obliged as a party to the UN Convention against Torture (see October 21, 1994) to investigate ‘wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.’ The same treaty requires it to submit the case to its competent authorities for the purpose of prosecution. The treaty, and international law more generally, precludes the invocation of exceptional circumstances or superior orders as justification for torture. Anyone who has authorized, committed, is complicit, or participated in torture must be brought to justice, no matter their level of office or former level of office. Yet the public acknowledgement that the USA has tortured al-Khatani was not accompanied by any news of efforts to bring those responsible to justice.” Such a government commission “must not be used to block or delay the prosecution of any individual against whom there is already sufficient evidence of wrongdoing. A criminal investigation into the torture of Mohamed al-Khatani is already long overdue.” The incoming president, Barack Obama, has already acknowledged that waterboarding, one of the “harsh interrogation techniques” used against Guantanamo detainees, is torture. “Next week, then, the USA will have a president who considers that torture has been committed by the USA,” Amnesty writes. “He will be under an obligation to ensure full individual and institutional accountability. There must be no safe havens for torturers.” As for al-Khatani, Amnesty believes the US should either release him or try him “in accordance with international fair trial standards in an independent and impartial court—not a military commission. No information obtained under torture, cruel, inhuman or degrading treatment should be admitted in any proceedings, except against the perpetrators of any such treatment as evidence that it occurred.” [Amnesty International, 1/14/2009]

Entity Tags: Barack Obama, Amnesty International, Obama administration, Mohamed al-Khatani

Timeline Tags: Torture of US Captives, Civil Liberties

Steven Bradbury, the outgoing head of the Justice Department’s Office of Legal Counsel (OLC), issues a legal opinion finding certain earlier opinions from the OLC invalid. Bradbury is referring to several memos issued by former OLC lawyers John Yoo, Jay Bybee, and others after the 9/11 attacks (see March 2, 2009).
'Doubtful Nature' - Bradbury writes that these opinions had not been relied upon since 2003, and notes that it is important to acknowledge in writing “the doubtful nature of these propositions.” The opinions “do not currently reflect, and have not for some years reflected, the views of the” OLC, Bradbury writes, “and on several occasions we have already acknowledged the doubtful nature of these propositions.”
President's Position - One portion of Bradbury’s memo says it is “not sustainable” to argue that the president’s power as commander in chief “precludes Congress from enacting any legislation concerning the detention, interrogation, prosecution, and transfer of enemy combatants.” Bradbury is referring to a 2002 memo that claimed President Bush could order the “rendition” of detainees to other countries without regard to Congressional legislation (see March 13, 2002).
'Novel and Complex Questions' - In repudiating the memos, Bradbury writes that they were the product of Yoo and others confronting what he calls “novel and complex questions in a time of great danger and under extraordinary time pressure.” [US Department of Justice, 1/15/2009 pdf file; New York Times, 3/2/2009; Reuters, 3/2/2009]
Response - Yale law professor Jack Balkin later notes that the memo does not repudiate “any of the Bush administration’s specific policies regarding surveillance, detention, and interrogation.” [Jack Balkin, 3/3/2009] In 2004, the Justice Department repudiated the so-called “golden shield” memo, written by Yoo and the then-chief counsel for Vice President Cheney, David Addington, which gave US personnel almost unlimited authority to torture prisoners (see August 1, 2002). The New York Times writes that Bradbury’s last-minute memo “appears to have been the Bush lawyers’ last effort to reconcile their views with the wide rejection by legal scholars and some Supreme Court opinions of the sweeping assertions of presidential authority made earlier by the Justice Department.” Walter Dellinger, who headed the OLC during the Clinton administration, says that Bradbury’s memo “disclaiming the opinions of earlier Bush lawyers sets out in blunt detail how irresponsible those earlier opinions were.” Dellinger says it is important to note that the Bush administration’s assertions “that Congress had absolutely no role in these national security issues was contrary to constitutional text, historical practice, and judicial precedent.” [New York Times, 3/2/2009] Bradbury, who like Yoo and Bybee may face disbarment, is careful to note that while the legal opinions are invalid, he is not suggesting that the authors did not “satisfy” professional standards. [Washington Post, 3/3/2009]

Entity Tags: John C. Yoo, Steven Bradbury, Office of Legal Counsel (DOJ), New York Times, Walter Dellinger, Jay S. Bybee, Jack Balkin, US Department of Justice

Timeline Tags: Civil Liberties

Neal Katyal.Neal Katyal. [Source: PBS]Georgetown law professor Neal Katyal is to be named the Justice Department’s deputy solicitor general. Katyal successfully argued for the defense in the landmark Hamdan v. Rumsfeld trial before the Supreme Court (see June 30, 2006). Legal Times reporter Joe Palazzolo writes, “Katyal’s appointment is another strong signal of President-elect Barack Obama’s intentions to depart sharply from the terrorist detention and interrogation policies of the Bush administration.” The Hamdan case, “which marked Katyal’s first appearance before the high court, was a stinging rebuke to [President Bush’s] broad assertion of wartime power.” Katyal’s boss, Harvard Law School dean Elena Kagan, was named earlier in the month. Katyal was incoming Attorney General Eric Holder’s national security adviser in the Justice Department from 1998 to 1999, when Holder was deputy attorney general for the Clinton administration. Katyal also served as one of the co-counsels for Vice President Gore in the Supreme Court election dispute of December 2000. He once clerked for Supreme Court Justice Stephen Breyer. [Legal Times, 1/17/2009]

Entity Tags: US Department of Justice, Elena Kagan, Neal Katyal, Joe Palazzolo

Timeline Tags: Torture of US Captives, Civil Liberties

As one of its last official acts, the Bush administration asks federal judge Vaughn Walker to stay his ruling that keeps alive a lawsuit testing whether a sitting president can bypass Congress and eavesdrop on Americans without warrants. The request, filed at 10:56 p.m. on President Bush’s last full day in office, asks Walker to stay his ruling and allow the federal government to appeal his ruling that allows the al-Haramain lawsuit to proceed (see February 28, 2006). The warrantless wiretapping alleged in the lawsuit took place in 2004, well before Congress’s 2008 authorization of the government’s spy program. The Obama administration’s incoming Attorney General, Eric Holder, says the Justice Department will defend the spy program because Congress made it legal (see January 15, 2009). It is not clear whether the Justice Department under Holder will continue to fight the Al Haramain lawsuit. The Bush administration wants Walker to reverse his decision to let plaintiffs’ lawyers Wendell Belew and Asim Ghafoo use a Top Secret document that was accidentally disclosed to them in 2004 (see January 5, 2009); that document, which allegedly proves the warrantless and illegal nature of the wiretapping performed against the Al Haramain charity, is at the center of the lawsuit. Previous rulings disallowed the use of the document and forced the defense lawyers to return it to the government, but Walker ruled that other evidence supported the claim of warrantless wiretapping, and therefore the document could be used. In its request for a stay, the Bush administration asserts that allowing the document to be used in the lawsuit would jeopardize national security, and that the document is protected under the state secrets privilege (see March 9, 1953). Administration lawyers say that Walker should not be allowed to see the document, much less the defense lawyers. “If the court were to find… that none of the plaintiffs are aggrieved parties, the case obviously could not proceed, but such a holding would reveal to plaintiffs and the public at large information that is protected by the state secrets privilege—namely, that certain individuals were not subject to alleged surveillance,” the administration writes in its request. If the lawsuit continues, the government says, that decision “would confirm that a plaintiff was subject to surveillance” and therefore should not be allowed: “Indeed, if the actual facts were that just one of the plaintiffs had been subject to alleged surveillance, any such differentiation likewise could not be disclosed because it would inherently reveal intelligence information as to who was and was not a subject of interest, which communications were and were not of intelligence interest, and which modes of communication were and were not of intelligence interest, and which modes of communication may or may not have been subject to surveillance.” Jon Eisenberg, the lawyer for Belew and Ghafoo, says: “We filed this lawsuit to establish a judicial precedent that the president cannot disregard Congress in the name of national security. Plaintiffs have a right to litigate the legality of the surveillance.” [Wired News, 1/20/2009]

Entity Tags: Jon Eisenberg, Asim Ghafoo, Al Haramain Islamic Foundation, Bush administration (43), Obama administration, Eric Holder, Wendell Belew, Vaughn Walker, US Department of Justice, George W. Bush

Timeline Tags: Civil Liberties

Constitutional lawyer and author Bruce Fein, a former official in the Justice Department under Ronald Reagan, writes that if President Obama wants to “restore the rule of law and to prevent future wrongdoing by high-level government officials,” he “should investigate, among others, former President George W. Bush, former Vice President Dick Cheney, former Defense Secretary Donald Rumsfeld, former Attorney General John Ashcroft, former White House counsel and Attorney General Alberto Gonzales, and former White House political adviser Karl Rove. The crimes to be investigated should include complicity in torture, illegal surveillance, illegal detention, perjury, obstruction of justice, and contempt of Congress. Prosecutions should follow if the evidence convinces a grand jury to indict.” Fein states that “[t]he best way to deter government criminality and to teach citizens the rule of law is to punish the perpetrators who are unanimously found guilty beyond a reasonable doubt by independent and impartial jurors.”
FBI, CIA Feared Prosecution for Torture - He notes that the FBI refused to participate in “enhanced interrogation techniques,” including waterboarding, for fear of being charged with war crimes. And the CIA required specific legal opinions from the Bush Justice Department—the so-called “golden shield” (see August 1, 2002)—and specific presidential authorization before it would allow its agents to torture detainees. And the White House ordered an end to waterboarding after it was warned that such tactics left its officials open to charges of torture and war crimes.
Attorney General Feared Prosecution under FISA - He goes on to note that Justice Department officials such as acting Attorney General James Comey “balked at approving… Bush’s warrantless surveillance program without modification in March 2004 probably because he feared criminal prosecution under the Foreign Intelligence Surveillance Act” (see 1978).
'Unpunished Lawlessness by Government Officials Invites Lawlessness Generally' - Fein asserts that “unpunished lawlessness by government officials invites lawlessness generally.” He quotes former Supreme Court Justice Louis Brandeis: “Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” The best way to deter criminal behavior, he says, is to prosecute alleged criminals, and that process must start with government officials. [Washington Times, 1/20/2009]

Entity Tags: Bruce Fein

Timeline Tags: Civil Liberties

In an interview for the German television program Frontal 21, broadcast on ZDF, Professor Manfred Nowak, the United Nations rapporteur responsible for torture, states that with George W. Bush’s head of state immunity now terminated, the new government of Barack Obama is obligated by international law to commence a criminal investigation into Bush’s torture practices. “The evidence is sitting on the table,” Nowak says. “There is no avoiding the fact that this was torture.” Nowak cites the Convention Against Torture (see October 21, 1994), which obligates a signatory country such as the US to criminally prosecute anyone who tortures a person, or extradites a person to a country which will torture him. “The government of the United States is required to take all necessary steps to bring George W. Bush and Donald Rumsfeld before a court,” Nowak says. Nowak headed a 2006 study of conditions at Guantanamo that concluded the practices used at that facility and approved by the Bush administration violated human rights norms and constituted torture. ZDF also interviews attorney Wolfgang Kaleck, who brought charges against former Defense Secretary Donald Rumsfeld before German prosecutors. The Obama administration is “off to a good beginning” with its explicit renunciation of torture, Kaleck says, but has yet to show how it will hold Bush, Rumsfeld, and others accountable for their crimes, nor has it demonstrated its legally obligated duty to provide compensation to torture victims. Lastly, law professor Dietmar Herz confirms that Bush bears personal responsibility for the introduction and use of torture. Herz confirms that once Bush lost his immunity from prosecution as a head of state, the US is obligated to prosecute him for crimes against humanity. [Harper's, 1/21/2009]

Entity Tags: Wolfgang Kaleck, Donald Rumsfeld, Barack Obama, Convention Against Torture, Dietmar Herz, Manfred Nowak, George W. Bush, United Nations

Timeline Tags: Civil Liberties

President Barack Obama signs a series of executive orders mandating the closure of the Guantanamo Bay detention facility within one year’s time, and declares that prisoners at that facility will be treated within the parameters of the Geneva Conventions. Obama’s order also mandates the closure of the CIA’s secret prisons overseas. Another element of those orders bans the practice of torture on detainees (see January 22, 2009). Obama calls the order the first move by his administration to reclaim “the moral high ground” vacated by the previous administration. Americans understand that battling terrorism cannot continue with a “false choice between our safety and our ideals,” he says. [Los Angeles Times, 1/23/2009; Washington Post, 1/23/2009] “We can no longer afford drift, and we can no longer afford delay, nor can we cede ground to those who seek destruction,” he adds. [Associated Press, 1/22/2009] “We believe we can abide by a rule that says, we don’t torture, but we can effectively obtain the intelligence we need.” [New York Times, 1/23/2009] The Washington Post reports that the orders essentially end the “war on terror” as it has been managed by the Bush administration, and writes, “[T]he notion that a president can circumvent long-standing US laws simply by declaring war was halted by executive order in the Oval Office.” However, Obama’s order does not detail what should be done with the detainees currently housed at Guantanamo. According to a White House summary, Obama’s orders “set… up an immediate review to determine whether it is possible to transfer detainees to third countries, consistent with national security.” If a prisoner cannot be transferred, “a second review will determine whether prosecution is possible and in what forum.” Obama says, “The message that we are sending the world is that the United States intends to prosecute the ongoing struggle against violence and terrorism and we are going to do so vigilantly and we are going to do so effectively and we are going to do so in a manner that is consistent with our values and our ideals.” The US will now “observe core standards of conduct, not just when it’s easy, but also when it’s hard,” he adds. The orders do not specifically ban the practice of “rendition,” or secretly transferring prisoners to the custody of other nations, some of which practice torture. “There are some renditions that are, in fact, justifiable, defensible,” says a senior Obama administration official. “There’s not going to be rendition to any country that engages in torture.”
Republicans, Conservatives Object - Representative Peter Hoekstra (R-MI), a supporter of torture by the Bush administration, says Obama’s orders are imprecise and vague: “This is an executive order that places hope ahead of reality—it sets an objective without a plan to get there.” [Los Angeles Times, 1/23/2009; Washington Post, 1/23/2009] “What do we do with confessed 9/11 mastermind Khalid Shaikh Mohammed and his fellow terrorist conspirators.” Hoekstra asks, “offer them jail cells in American communities?” [Financial Times, 1/22/2009] Conservative news outlet Fox News tells its viewers, “The National Security Council told Fox that for now even [O]sama bin Laden or a high-ranking terrorist planner would be shielded from aggressive interrogation techniques that the CIA says produced lifesaving intelligence from… Mohammed.” [US News and World Report, 1/23/2009]
'A New Era for America' - Newly installed Secretary of State Hillary Clinton has a different view. “I believe with all my heart that this is a new era for America,” she tells reporters as she assumes her duties at the State Department. [Agence France-Presse, 1/22/2009] Former Bush official John Bellinger, the National Security Council’s top legal adviser, praises Obama’s orders, calling them “measured” and noting that they “do not take any rash actions.” Bellinger adds: “Although the Gitmo order is primarily symbolic, it is very important. It accomplishes what we could never accomplish during the Bush administration.” [New York Times, 1/23/2009] Retired admiral John Hutson agrees. “It is a 180 degree turn,” says Hutson. “It restores our status in the world. It enables us to be proud of the way we are prosecuting the war.” Closing the Guantanamo prison camp and banning torture “is the right thing to do morally, diplomatically, militarily and constitutionally,” Hutson adds, “but it also makes us safer.” Senator John Kerry (D-MA) calls the move “a great day for the rule of law.” [Financial Times, 1/22/2009; New York Times, 1/23/2009]

Entity Tags: Peter Hoekstra, Hillary Clinton, John Bellinger, Obama administration, John D. Hutson, John Kerry, Khalid Shaikh Mohammed, National Security Council, Fox News, Washington Post, Bush administration (43), Barack Obama, Central Intelligence Agency

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

News columnist Ann Woolner writes that with President Obama’s executive orders to close Guantanamo (see January 22, 2009) and stop torture of terror suspects (see January 22, 2009), “I am beginning to recognize my country again.” Referring to the infamous picture of the hooded Abu Ghraib prisoner with electric wires attached to his body (see April 29-30, 2004), “It’s time to lift the hood and let the man under it step off that box.” [Bloomberg, 1/23/2009]

Entity Tags: Ann Woolner

Timeline Tags: Torture of US Captives

White House counsel Greg Craig says that the executive orders given by President Obama in his first days in office, particularly those outlawing torture (see January 22, 2009) and closing Guantanamo (see January 22, 2009) have been in the works for over a year. Craig also notes that Obama has not finished issuing reforms, and has deliberately put off grappling with several of the most thorny legal issues. Craig says that as Obama prepared to issue the orders, he was “very clear in his own mind about what he wanted to accomplish, and what he wanted to leave open for further consultation with experts.”
Process Began before First Presidential Caucus - Craig says that the thinking and discussion behind these orders, and orders which have yet to be issued, began in Iowa in January 2008, before the first presidential caucus. Obama met with former high-ranking military officers who opposed the Bush administration’s legalization of harsh interrogation tactics, including retired four-star generals Dave Maddox and Joseph Hoar. They were sickened at the abuses committed at Abu Ghraib prison, and, as reporter Jane Mayer writes, “disheartened by what they regarded as the illegal and dangerous degradation of military standards.” They had formed what Mayer calls “an unlikely alliance with the legal advocacy group Human Rights First, and had begun lobbying the candidates of both parties to close the loopholes that Bush had opened for torture.” The retired flag officers lectured Obama on the responsibilities of being commander in chief, and warned the candidate that everything he said would be taken as an order by military personnel. As Mayer writes, “Any wiggle room for abusive interrogations, they emphasized, would be construed as permission.” Craig describes the meeting as the beginning of “an education process.”
'Joy' that US is 'Getting Back on Track' - In December 2008, after Obama’s election, the same group of retired flag officers met with Craig and Attorney General-designate Eric Holder. Both Craig and Holder were impressed with arguments made by retired Marine general and conservative Republican Charles Krulak, who argued that ending the Bush administration’s coercive interrogation and detention regime was “right for America and right for the world.” Krulak promised that if the Obama administration would do what he calls “the right thing,” which he acknowledged will not be politically easy, that he would personally “fly cover” for it. Sixteen of those flag officers joined Obama for the signing of the executive order banning torture. After the signing, Obama met with the officers and several administration officials. “It was hugely important to the president to have the input from these military people,” Craig says, “not only because of their proven concern for protecting the American people—they’d dedicated their lives to it—but also because some had their own experience they could speak from.” During that meeting, retired Major General Paul Eaton called torture “the tool of the lazy, the stupid, and the pseudo-tough. It’s also perhaps the greatest recruiting tool that the terrorists have.” Retired Admiral John Hutson said after the meeting that the feeling in the room “was joy, perhaps, that the country was getting back on track.”
Uncertainty at CIA - Some CIA officials are less enthusiastic about Obama’s changes. They insist that their so-called “enhanced interrogation techniques” have provided critical intelligence, and, as Craig says, “They disagree in some respect” with Obama’s position. Many CIA officials wonder if they will be forced to follow the same interrogation rules as the military. Obama has indeed stopped torture, Craig says, but the president “is somewhat sympathetic to the spies’ argument that their mission and circumstances are different.” Craig says that during the campaign, Obama’s legal, intelligence, and national security advisers visited CIA headquarters in Langley for two intensive briefings with current and former intelligence officials. The issue of “enhanced interrogation tactics” was discussed, and the advisers asked the intelligence veterans to perform a cost-benefit analysis of such tactics. Craig says, “There was unanimity among Obama’s expert advisers that to change the practices would not in any material way affect the collection of intelligence.” [New Yorker, 1/25/2009]

Entity Tags: Paul Eaton, Dave Maddox, Charles Krulak, Central Intelligence Agency, Barack Obama, Eric Holder, Greg Craig, Human Rights First, Jane Mayer, Joseph Hoar, John D. Hutson, Obama administration

Timeline Tags: Civil Liberties

Former Attorney General Alberto Gonzales tells an NPR reporter that he never allowed the Justice Department (DOJ) to become politicized, and that he believes the historical judgment of his tenure in the department will be favorable. He acknowledges making some errors, including failing to properly oversee the DOJ’s push to fire nine US attorneys in 2008, a process many believe was orchestrated by the White House with the involvement of Gonzales and then-White House political guru Karl Rove.
Failure to Engage - “No question, I should have been more engaged in that process,” he says, but adds that he is being held accountable for decisions made by his subordinates. “I deeply regret some of the decisions made by my staff,” he says, referring to his former deputy Paul McNulty, who resigned over the controversy after telling a Senate committee that the attorney firings were performance-related and not politically motivated. Gonzales says his then-chief of staff, Kyle Sampson, was primarily responsible for the US attorney review process and for working with McNulty. “If Paul McNulty makes a recommendation to me—if a recommendation includes his views—I would feel quite comfortable that those would be good recommendations coming to me” about the qualifications of the US attorneys under question, Gonzales says. He adds that he has “seen no evidence” that Rove or anyone at the White House tried to use the US attorneys to politicize the work at the DOJ. A review by the DOJ’s Inspector General found that the firing policy was fundamentally flawed, and that Gonzales was disengaged and had failed to properly supervise the review process.
Claims He Was Unfairly Targeted by 'Mean-Spirited' Washington Insiders - Gonzales says he has been unfairly held responsible for many controversial Bush administration policies, including its refusal to abide by the Geneva Conventions (see Late September 2001, January 9, 2002, January 18-25, 2002, January 25, 2002, August 1, 2002, November 11, 2004, and January 17, 2007) and its illegal eavesdropping on US citizens (see Early 2004, March 9, 2004, December 19, 2005, Early 2006, and February 15, 2006), because of his close personal relationship with former President Bush. Washington, he says, is a “difficult town, a mean-spirited town.” He continues: “Sometimes people identify someone to target. That’s what happened to me. I’m not whining. It comes with the job.”
Visiting Ashcroft at the Hospital - In 2004, Gonzales, then the White House counsel, and White House chief of staff Andrew Card raced to the bedside of hospitalized Attorney General John Ashcroft to persuade, or perhaps coerce, Ashcroft to sign off on a secret government surveillance program (see March 10-12, 2004). The intervention was blocked by Deputy Attorney General James Comey (see March 12-Mid-2004). Gonzales says he has no regrets about the incident: “Neither Andy nor I would have gone there to take advantage of somebody who was sick. We were sent there on behalf of the president of the United States.” As for threats by Justice Department officials to resign en masse over the hospital visit (see Late March, 2004), Gonzales merely says, “Lawyers often disagree about important legal issues.”
Warning about Plain Speaking - Gonzales says Obama’s attorney general nominee, Eric Holder, should refrain from making such statements as Holder made last week when he testified that waterboarding is torture. “One needs to be careful in making a blanket pronouncement like that,” Gonzales says, adding that such a statement might affect the “morale and dedication” of intelligence officials and lawyers who are attempting to make cases against terrorism suspects. [National Public Radio, 1/26/2009]

Entity Tags: US Department of Justice, Eric Holder, Bush administration (43), Andrew Card, Alberto R. Gonzales, Geneva Conventions, George W. Bush, James B. Comey Jr., Karl C. Rove, Paul J. McNulty, D. Kyle Sampson

Timeline Tags: Civil Liberties

John Yoo, the former Bush administration legal adviser who authored numerous opinions on the legality of torture, detentions without legal representation, and warrantless wiretapping (see November 6-10, 2001, December 28, 2001, January 9, 2002, August 1, 2002, and August 1, 2002, among others), writes an op-ed for the Wall Street Journal opposing the Obama administration’s intent to close the Guantanamo Bay detention facility (see January 20, 2009 and January 22, 2009)) and restrict the CIA’s ability to torture detainees (see January 22, 2009). Yoo, now a law professor and a member of the neoconservative American Enterprise Institute, writes that while President Obama’s decision “will please his base” and ease the objections to the Bush “imperial presidency,” it will “also seriously handicap our intelligence agencies from preventing future terrorist attacks.” Yoo writes that the Obama decisions mark a return “to the failed law enforcement approach to fighting terrorism that prevailed before Sept. 11, 2001.” Yoo recommends that Obama stay with what he calls “the Bush system” of handling terror suspects. Yoo fails to note that the US law enforcement system prevented, among others, the “millennium bombing” plot (see December 14, 1999), the plot to bomb New York City’s Lincoln and Holland Tunnels (see June 24, 1993), and Operation Bojinka (see January 6, 1995).
Obama Needs to be Able to Torture Prisoners Just as Bush Did, Yoo Declares - And by eschewing torture, Obama is giving up any chance on forcing information from “the most valuable sources of intelligence on al-Qaeda” currently in American custody. The Bush administration policies prevented subsequent terrorist attacks on the US, Yoo contends, and Obama will need the same widespread latitude to interrogate and torture prisoners that Bush employed: “What is needed are the tools to gain vital intelligence, which is why, under President George W. Bush, the CIA could hold and interrogate high-value al-Qaeda leaders. On the advice of his intelligence advisers, the president could have authorized coercive interrogation methods like those used by Israel and Great Britain in their antiterrorism campaigns. (He could even authorize waterboarding, which he did three times in the years after 9/11.)” It is noteworthy that Yoo refused to confirm that Bush ordered waterboarding of suspects during his previous Congressional hearings (see June 26, 2008).
Interrogations Must be 'Polite' - According to Yoo, in forcing the CIA and other US interrogators to follow the procedures outlined in the Army Field Manual, they can no longer use “coercive techniques, threats and promises, and the good-cop bad-cop routines used in police stations throughout America.… His new order amounts to requiring—on penalty of prosecution—that CIA interrogators be polite. Coercive measures are unwisely banned with no exceptions, regardless of the danger confronting the country.” [Wall Street Journal, 1/29/2009] Yoo is incorrect in this assertion. The Army Field Manual explicitly countenances many of the “coercive techniques, threats and promises, and the good-cop bad-cop routines” Yoo says it bans. Further, the Field Manual says nothing about requiring interrogators to be “polite.” [Army, 9/2006] And actual field interrogators such as the Army’s Matthew Alexander have repeatedly said that torturing prisoners is ineffective and counterproductive, while building relationships and treating prisoners with dignity during interrogations produces usable, reliable intelligence (see November 30, 2008).
Shutting Down Military Commissions - Obama’s order to stay all military commission trials and to review the case of “enemy combatant” Ali Saleh al-Marri (see June 23, 2003) is also mistaken, Yoo writes. Yoo fears that Obama will shut down the military commissions in their entirety and instead transfer detainees charged with terrorist acts into the US civilian court system. He also objects to Obama’s apparent intent to declare terrorists to be prisoners of war under the Geneva Conventions, instead of following the Bush precedent of classifying terrorists “like pirates, illegal combatants who do not fight on behalf of a nation and refuse to obey the laws of war.” To allow terror suspects to have rights under Geneva and the US legal system, Yoo asserts, will stop any possibility of obtaining information from those suspects. Instead, those suspects will begin using the legal system to their own advantage—refusing to talk, insisting on legal representation and speedy trials instead of cooperating with their interrogators. “Our soldiers and agents in the field will have to run more risks as they must secure physical evidence at the point of capture and maintain a chain of custody that will stand up to the standards of a civilian court,” Yoo writes. [Wall Street Journal, 1/29/2009] In reality, the Supreme Court’s ruling in Hamdan v. Rumsfeld (see June 30, 2006), as well as the Detainee Treatment Act (see December 15, 2005) and the Military Commissions Act (see October 17, 2006), all mandate that detainees must be handled according to the Geneva Conventions.
Risk to Americans - Another effect of transferring detainees into the civilian justice system, Yoo claims, is to allow “our enemies to obtain intelligence on us.” Defense lawyers will insist on revealing US intelligence—information and methods—in open court, and will no doubt force prosecutors to accept plea bargains “rather than risk disclosure of intelligence secrets.”
Obama 'Open[ed] the Door to Further Terrorist Acts on US Soil' - Obama said in his inaugural speech that the US must “reject as false the choice between our safety and our ideals.” Yoo calls that statement “naive,” and writes, “That high-flying rhetoric means that we must give al-Qaeda—a hardened enemy committed to our destruction—the same rights as garden-variety criminals at the cost of losing critical intelligence about real, future threats.” By making his choices, Yoo writes, “Mr. Obama may have opened the door to further terrorist acts on US soil by shattering some of the nation’s most critical defenses.” [Wall Street Journal, 1/29/2009]

Entity Tags: John C. Yoo, Barack Obama, American Enterprise Institute, Wall Street Journal, Obama administration

Timeline Tags: Torture of US Captives, Civil Liberties

Several Republican senators plan to visit the Guantanamo Bay detention facility and report their findings. They are expected to continue their calls for keeping Guantanamo open indefinitely. Senators Jim Inhofe (R-OK), David Vitter (R-LA), Pat Roberts (R-KS), Richard Burr (R-NC), and Mel Martinez (R-FL) decided to make the trip after President Obama issued an executive order mandating that the prison be closed within a year (see January 22, 2009). “I’ve always looked at [the prison] as being a real valuable asset,” says Inhofe. He admits he does not “have a solution to what we’re going to ultimately do” with the prisoners deemed most dangerous. “I’m not addressing that problem,” he says. Inhofe says Obama’s order to close the prison “failed to take into consideration the implications of closing [Guantanamo]—what happens to current detainees, what the military will do with detainees held in other military prisons around the world and what judicial process is going to be used.” Obama has asked for a “comprehensive interagency review” to settle those questions. [Daily Oklahoman, 1/30/2009; Bixby Bulletin, 1/30/2009] Burr says that he is “so far unconvinced that moving trained terrorists to the United States is in the best national security interests of our nation.” And Vitter notes that he is “very disappointed in President Obama’s decision to close the detention facility at Guantanamo.” He continues: “This facility should not be closed, and these individuals should not be released until we can determine the extent of their potential involvement in terrorist activities. And we most certainly should use every available measure to ensure that they do not make their way into the United States if in fact they are released.” [Bixby Bulletin, 1/30/2009]
Worry about Housing Detainees in US Prisons - Like Inhofe, Roberts is concerned that some Guantanamo inmates will be transferred into prisons in his home state. Kansas is the home of Fort Leavenworth, which houses a large Army prison. “I am especially concerned with ridiculous speculation that Ft. Leavenworth is equipped to handle these detainees, some of the most dangerous terrorists in the world,” he says. “I am convinced these terrorists cannot and will not be housed in Kansas.” [KansasCW, 1/30/2009]
Advocating Continued Detentions without Trials - In an interview with Fox News, Vitter goes further than his Senatorial colleagues, saying that he favors continuing to detain some suspects without trials. “We need the ability to deal with these folks adequately,” he says. “To me, that has to include the ability to detain some—without trial—to continue proper interrogation.… I’d like to have Gitmo stay open. But certainly, we need detention facilities where we can detain dangerous terrorists without trial, continue to interrogate them.” [Think Progress, 1/30/2009] Fellow Republican Senator Lindsey Graham (R-SC) has already made the same recommendation (see January 21, 2009).

Entity Tags: Richard Burr, Lindsey Graham, James M. Inhofe, David Vitter, Barack Obama, Mel Martinez, Pat Roberts

Timeline Tags: Torture of US Captives, Civil Liberties

Reflecting on the Bush administration’s decision to create “military commissions” to try terror suspects (see November 13, 2001), John Bellinger, the former legal adviser to the National Security Council during much of the Bush administration, says: “A small group of administration lawyers drafted the president’s military order establishing the military commissions, but without the knowledge of the rest of the government, including the national security adviser, me, the secretary of state, or even the CIA director. And even though many of the substantive problems with the military commissions as created by the original order have been resolved by Congress in response to the Supreme Court’s decision in the Hamdan case (see June 30, 2006), we have been suffering from this original process failure ever since.” [Vanity Fair, 2/2009]

Entity Tags: Condoleezza Rice, Bush administration (43), Colin Powell, US Supreme Court, George J. Tenet, National Security Council, John Bellinger

Timeline Tags: Civil Liberties

Attorney General-nominee Eric Holder says that if he is confirmed, he intends to review current litigation in which the Bush administration asserted the so-called “state secrets” privilege (see March 9, 1953), and that he intends to minimize the use of the privilege during his tenure. “I will review significant pending cases in which DOJ [the Justice Department] has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations,” he writes in a response to pre-confirmation questions. (Shortly after Holder’s testimony, the Justice Department again asserts the “state secrets” privilege in a case involving a Guantanamo detainee—see February 9, 2009). Holder adds: “I firmly believe that transparency is a key to good government. Openness allows the public to have faith that its government obeys the law.” To a related question, he asserts his belief that the Office of Legal Counsel (OLC) must disclose as many of the opinions it generates as possible: “Once the new assistant attorney general in charge of the Office of Legal Counsel is confirmed, I plan to instruct that official to review the OLC’s policies relating to publication of its opinions with the [objective] of making its opinions available to the maximum extent consistent with sound practice and competing concerns.” [Federation of American Scientists, 2/2/2009; Senate Judiciary Committee, 2/2/2009] Weeks later, the Justice Department will release nine controversial OLC memos from the Bush administration (see March 2, 2009).

Entity Tags: Eric Holder, Bush administration (43), Office of Legal Counsel (DOJ), US Department of Justice

Timeline Tags: Civil Liberties

George W. Bush’s former political guru Karl Rove echoes incorrect statements made by former Bush lawyer John Yoo. In an op-ed, Yoo claimed that President Obama’s prohibition against torture, and the mandate for US interrogators to use the Army Field Manual as their guide, prevents interrogators from using long-established, non-invasive techniques to question prisoners (see January 29, 2009). In an address at Loyola Marymount University, Rove tells his listeners: “The Army Field Manual prohibits ‘good cop, bad cop.’ All that stuff you see on CSI—the Army Field Manual prohibits it.… If you stop collecting that information, you begin to make America more at risk.” [Torrance Daily Breeze, 2/3/2009] Both Rove and Yoo are wrong. The Army Field Manual explicitly permits many of the “coercive techniques, threats and promises, and the good-cop bad-cop routines” Yoo and Rove claim it bans. [Army, 9/2006]

Entity Tags: Karl C. Rove

Timeline Tags: Torture of US Captives, Civil Liberties

Former Vice President Dick Cheney says that because of the Obama administration’s new policies, there is what he calls a “high probability” that terrorists will attempt a catastrophic nuclear or biological attack in coming years. “If it hadn’t been for what we did—with respect to the terrorist surveillance program (see After September 11, 2001 and December 15, 2005), or enhanced interrogation techniques for high-value detainees (see September 16, 2001 and November 14, 2001, among others), the Patriot Act (see October 26, 2001), and so forth—then we would have been attacked again,” says Cheney. “Those policies we put in place, in my opinion, were absolutely crucial to getting us through the last seven-plus years without a major-casualty attack on the US.” The situation has changed, he says. “When we get people who are more concerned about reading the rights to an al-Qaeda terrorist (see January 22, 2009) than they are with protecting the United States against people who are absolutely committed to do anything they can to kill Americans, then I worry,” he says. Protecting the country’s security is “a tough, mean, dirty, nasty business,” he continues. “These are evil people. And we’re not going to win this fight by turning the other cheek.” He calls the Guantanamo detention camp, which President Obama has ordered shut down (see January 22, 2009), a “first-class program” and a “necessary facility” that is operated legally and provides inmates better living conditions than they would get in jails in their home countries. But the Obama administration is worried more about its “campaign rhetoric” than it is protecting the nation: “The United States needs to be not so much loved as it needs to be respected. Sometimes, that requires us to take actions that generate controversy. I’m not at all sure that that’s what the Obama administration believes.” Cheney says “the ultimate threat to the country” is “a 9/11-type event where the terrorists are armed with something much more dangerous than an airline ticket and a box cutter—a nuclear weapon or a biological agent of some kind” that is deployed in the middle of an American city. “That’s the one that would involve the deaths of perhaps hundreds of thousands of people, and the one you have to spend a hell of a lot of time guarding against. I think there’s a high probability of such an attempt. Whether or not they can pull it off depends whether or not we keep in place policies that have allowed us to defeat all further attempts, since 9/11, to launch mass-casualty attacks against the United States.” [Politico, 2/4/2009] Cheney has warned of similarly dire consequences to potential Democratic political victories before, before the 2004 presidential elections (see September 7, 2004) and again before the 2006 midterm elections (see October 31, 2006).

Entity Tags: Barack Obama, Al-Qaeda, Obama administration, Richard (“Dick”) Cheney

Timeline Tags: Complete 911 Timeline, Domestic Propaganda, 2010 Elections

MSNBC host Keith Olbermann slams former Vice President Dick Cheney for Cheney’s recent warnings concerning the policies of President Obama (see February 4, 2009). Olbermann calls Cheney’s remarks a “destructive and uninformed diatribe… that can only serve to undermine the nation’s new president, undermine the nation’s effort to thwart terrorism, and undermine the nation itself.” Cheney said that the Obama administration seems “more concerned about reading the rights to an al-Qaeda terrorist than they are with protecting the United States against people who are absolutely committed to do anything they can to kill Americans.” Olbermann responds by asking: “What delusion of grandeur makes you think you have the right to say anything like that? Because a president, or an ordinary American, demands that we act as Americans and not as bullies; demands that we play by our rules; that we preserve, protect, and defend the Constitution of the United States; you believe we have chosen the one and not the other? We can be Americans, or we can be what you call ‘safe’—but not both?” Olbermann says that the Bush-Cheney policies—the so-called “Bush System,” as recently dubbed by former Bush administration lawyer John Yoo (see January 29, 2009)—“[s]tart[ed] the wrong war, detain[ed] the wrong people, employ[ed] the wrong methods, pursue[d] the wrong leads, utilize[d] the wrong emotions.” He continues: “We, sir, will most completely assure our security not by maintaining the endless, demoralizing, draining, life-denying blind fear and blind hatred which you so thoroughly embody. We will most easily purchase our safety by repudiating the ‘Bush System.’ We will reserve the violence for which you are so eager, sir, for any battlefield to which we truly must take, and not for unconscionable wars which people like you goad and scare and lie us into. You, Mr. Cheney, you terrified more Americans than did any terrorist in the last seven years, and now it is time for you to desist, or to be made to desist. With damnable words like these, sir, you help no American, you protect no American, you serve no American—you only aid and abet those who would destroy this nation from within or without.” [MSNBC, 2/5/2009]

Entity Tags: Richard (“Dick”) Cheney, Barack Obama, Bush administration (43), John C. Yoo, Keith Olbermann

Timeline Tags: Domestic Propaganda

Binyam Mohamed.Binyam Mohamed. [Source: Independent]A lawyer for a Guantanamo detainee demands the release of her client because he is near death. Lieutenant Colonel Yvonne Bradley is in London to ask that her client, British resident Binyam Mohamed (see May-September, 2001), who is still in Guantanamo even though all charges against him have been dropped (see October-December 2008), be released. Through Bradley, Mohamed claims that he has been repeatedly tortured at the behest of US intelligence officials (see April 10-May, 2002, May 17 - July 21, 2002, July 21, 2002 -- January 2004, and January-September 2004). Bradley says that Mohamed is dying in his cell. Mohamed and some twenty other detainees are so unhealthy that they are on what Bradley calls a “critical list.”
Hunger Strike, Beatings - Fifty Guantanamo detainees, including Mohamed, are on a hunger strike, and are being strapped to chairs and force-fed; those who resist, witnesses say, are beaten. Mohamed has suffered drastic weight loss, and has told his lawyer that he is “very scared” of being attacked by guards after witnessing what The Guardian describes as “a savage beating for a detainee who refused to be strapped down and have a feeding tube forced into his mouth.” Bradley is horrified at Mohamed’s description of the state of affairs in the prison. She says: “At least 50 people are on hunger strike, with 20 on the critical list, according to Binyam. The JTF [the Joint Task Force running Guantanamo] are not commenting because they do not want the public to know what is going on. Binyam has witnessed people being forcibly extracted from their cell. SWAT teams in police gear come in and take the person out; if they resist, they are force-fed and then beaten. Binyam has seen this and has not witnessed this before. Guantanamo Bay is in the grip of a mass hunger strike and the numbers are growing; things are worsening. It is so bad that there are not enough chairs to strap them down and force-feed them for a two- or three-hour period to digest food through a feeding tube. Because there are not enough chairs the guards are having to force-feed them in shifts. After Binyam saw a nearby inmate being beaten it scared him and he decided he was not going to resist. He thought, ‘I don’t want to be beat, injured or killed.’ Given his health situation, one good blow could be fatal.… Binyam is continuing to lose weight and he is going to get worse. He has been told he is about to be released, but psychologically and physically he is declining.”
Demanding Documents to Prove Torture, Rendition - Bradley is also demanding documents that she says will prove her client was tortured, and may also prove British complicity in Mohamed’s treatment (see February 24, 2009). An American court in San Francisco is also slated to hear evidence that Mohamed was subjected to “extraordinary rendition” by the CIA, where Mohamed and other prisoners were sent to other countries that tortured them. That lawsuit was originally dismissed when the Bush administration asserted “state secrets privilege” (see March 9, 1953), but lawyers for Mohamed refiled the case hoping that the Obama administration would be less secretive.
US Intelligence Wants Mohamed Dead? - The Guardian also notes that “some sections of the US intelligence community would prefer Binyam did die inside Guantanamo.” The reason? “Silenced forever, only the sparse language of his diary would be left to recount his torture claims and interviewees with an MI5 officer, known only as Witness B. Such a scenario would also deny Mohamed the chance to personally sue the US, and possibly British authorities, over his treatment.” [Guardian, 2/8/2009]

Entity Tags: Yvonne Bradley, Binyam Mohamed, Bush administration (43), Obama administration

Timeline Tags: Torture of US Captives, Civil Liberties

A Justice Department official says that the Obama administration will continue to assert the so-called “state secrets privilege” (see March 9, 1953) in a lawsuit filed by Guantanamo detainee Binyam Mohamed (see February 8, 2009). In the case Mohamed et al v Jeppesen Dataplan, Inc, Mohamed and four former detainees are suing a Boeing subsidiary, Jeppesen Dataplan, for cooperating with the CIA in subjecting them to “extraordinary rendition,” flying them to foreign countries and secret overseas CIA prisons where, they say, they were tortured. The case was thrown out a year ago, but the American Civil Liberties Union (ACLU) has appealed it. According to a source inside the Ninth US District Court, a Justice Department lawyer tells the presiding judge that its position has not changed, that the new administration stands behind arguments that the previous administration made, with no ambiguity at all. The lawyer says the entire subject matter remains a state secret. According to Justice Department spokesman Matt Miller, “It is the policy of this administration to invoke the state secrets privilege only when necessary and in the most appropriate cases, consistent with the United States Supreme Court’s decision in Reynolds that the privilege not ‘be lightly invoked.’” Miller adds that Attorney General Eric Holder is conducting a review of all state secret privilege matters. “The Attorney General has directed that senior Justice Department officials review all assertions of the State Secrets privilege to ensure that the privilege is being invoked only in legally appropriate situations,” Miller says. “It is vital that we protect information that, if released, could jeopardize national security. The Justice Department will ensure the privilege is not invoked to hide from the American people information about their government’s actions that they have a right to know. This administration will be transparent and open, consistent with our national security obligations.” The ACLU’s Anthony Romero says that the Obama administration is doing little besides offering “more of the same.” He continues: “Eric Holder’s Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition, and the most grievous human rights violations committed by the American government. This is not change. This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again.” ACLU attorney Ben Wizner, who argued the case for Mohamed and the other plaintiffs, adds: “We are shocked and deeply disappointed that the Justice Department has chosen to continue the Bush administration’s practice of dodging judicial scrutiny of extraordinary rendition and torture. This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course. Now we must hope that the court will assert its independence by rejecting the government’s false claims of state secrets and allowing the victims of torture and rendition their day in court.” [ABC News, 2/9/2009]

Entity Tags: Binyam Mohamed, Anthony D. Romero, American Civil Liberties Union, Ben Wizner, US Department of Justice, Obama administration, Eric Holder, Central Intelligence Agency, Matthew Miller, Jeppesen Dataplan

Timeline Tags: Civil Liberties

A newly released government threat analysis shows that slain trust-fund millionaire James G. Cummings, an American Nazi sympathizer from Maine who was killed by his wife Amber in December 2008, possessed the radioactive components necessary to build a so-called “dirty bomb.” Cummings, infuriated by the election of Barack Obama to the presidency, purchased depleted uranium over the Internet from an American company.
FBI Confiscates Radioactive Materials - The Bangor Daily News reports, “According to an FBI field intelligence report from the Washington Regional Threat and Analysis Center posted online by WikiLeaks, an organization that posts leaked documents, an investigation into the case revealed that radioactive materials were removed from Cummings’s home after his shooting death on December 9.” According to the Washington Regional Threat and Analysis Center: “Amber [Cummings] indicated James was very upset with Barack Obama being elected president. She indicated James had been in contact with ‘white supremacist group(s).’ Amber also indicated James mixed chemicals in the kitchen sink at their residence and had mentioned ‘dirty bombs.’” An FBI search of the Cummings home found four jars of depleted uranium-238 labeled “uranium metal” and the name of an unidentified US corporation, another jar labeled “thorium” and containing that material, and a second, unlabeled jar which also contained thorium-232. Other materials found in Cummings’s home were consistent with the manufacture of an explosive device, which if detonated could have spread radioactive debris throughout a relatively large local area. The FBI also found information on how to build “dirty bombs,” and information about cesium-137, strontium-90, cobalt-60, and other radioactive materials. FBI evidence shows Cummings had numerous ties to a variety of right-wing white supremacist groups. Cummings also owned a collection of Nazi memorabilia which, according to local tradesmen, he proudly displayed throughout his home. Police reports show that Cummings has a long history of violence. Amber Cummings contends she is innocent of her husband’s murder by reason of insanity, and claims she suffered years of mental, physical, and sexual abuse at his hands. The Department of Homeland Security has refused to comment on the incident. [Bangor Daily News, 2/10/2009; Raw Story, 3/9/2009] Local law enforcement officials downplay the threat Cummings posed, and the national media virtually ignores the story. [Time, 9/30/2010]
Later Information Shows Depth of Threat Posed by Cummings - Additional information gleaned by Time reporter Barton Gellman from Cummings’s notes and records later shows that the threat posed by Cummings was even more serious than initially reported. Cummings had applied to join the National Socialist Party (the American Nazi organization), and had detailed plans on how to assassinate President-elect Obama. Gellman will call Cummings “a viciously angry and resourceful man who had procured most of the supplies for a crude radiological dispersal device and made some progress in sketching a workable design.” Gellman says that in his attempt to construct a nuclear weapon, Cummings “was far ahead of Jose Padilla, the accused al-Qaeda dirty-bomb plotter (see June 10, 2002), and more advanced in his efforts than any previously known domestic threat involving a dirty bomb.” The materials were later confirmed to be the radioactive materials they were labeled as being; Amber Cummings will say that her husband bought them under the pretense of conducting legal research for a university. Although the materials Cummings had would not, themselves, succeed in unleashing large amounts of radiation over a large area, he was actively searching for three ingredients that would serve such a purpose: cobalt-60, cesium-137, and strontium-90. He had succeeded in manufacturing large amounts of TATP, an explosive favored by Islamist suicide bombers and brought on board an aircraft by “shoe bomber” Richard Reid (see December 22, 2001). “His intentions were to construct a dirty bomb and take it to Washington to kill President Obama,” Amber Cummings says. “He was planning to hide it in the undercarriage of our motor home.” She says her husband had practiced crossing checkpoints with dangerous materials aboard, taking her and their daughter along for an image of innocence. Maine state police detective Michael McFadden, who participated in the investigation throughout, says he came to believe that James Cummings posed “a legitimate threat” of a major terrorist attack. “When you’re cooking thorium and uranium under your kitchen sink, when you have a couple million dollars sitting in the bank and you’re hell-bent on doing something, I think at that point you become someone we want to sit up and pay attention to,” he says. “If she didn’t do what she did, maybe we would know Mr. Cummings a lot better than we do right now.” [Time, 9/30/2010]

Entity Tags: Washington Regional Threat and Analysis Center, US Department of Homeland Security, Michael McFadden, Jose Padilla, Amber Cummings, Federal Bureau of Investigation, James G. Cummings, Richard C. Reid, WikiLeaks

Timeline Tags: Domestic Propaganda, US Domestic Terrorism

The Justice Department is holding back on publicly releasing an internal department report on the conduct of former department officials involved in approving waterboarding and other torture techniques. The department’s Office of Professional Responsibility (OPR), led by H. Marshall Jarrett, completed the report in the final weeks of the Bush administration. The report probes whether the legal advice given in crucial interrogation memos “was consistent with the professional standards that apply to Department of Justice attorneys.” According to knowledgeable sources, the report harshly criticizes three former department lawyers: John Yoo, Jay Bybee, and Steven Bradbury, all former members of the department’s Office of Legal Counsel. But then-Attorney General Michael Mukasey and his deputy, Mark Filip, objected to the draft. Filip wanted the report to be “balanced” with responses from the three principals. The OPR is now waiting on the three to respond to the draft’s criticisms before presenting the report to Attorney General Eric Holder. “The matter is under review,” says Justice Department spokesman Matthew Miller. The OPR report could be forwarded to state bar associations for possible disciplinary actions against any or all of the three. But Bush-era officials feel the probe is inherently unfair. “OPR is not competent to judge [the opinions by Justice Department attorneys]. They’re not constitutional scholars,” says a former Bush lawyer. Mukasey criticized the report, calling it “second-guessing” and says that Yoo, Bybee, and Bradbury operated under “almost unimaginable pressure” after 9/11, and offered “their best judgment of what the law required.” OPR investigators looked into charges by former OLC chief Jack Goldsmith and others that the legal opinions provided by the three were “sloppy,” legally dubious, and slanted to give Bush administration officials what they wanted. [Newsweek, 2/14/2009; Newsweek, 2/16/2009] Some of the report is later leaked to the press (see February 22, 2009).

Entity Tags: Jay S. Bybee, Eric Holder, Bush administration (43), Jack Goldsmith, US Department of Justice, Matthew Miller, Office of Professional Responsibility, Mark Filip, John C. Yoo, Michael Mukasey, Steven Bradbury, H. Marshall Jarrett

Timeline Tags: Torture of US Captives, Civil Liberties

Jonathan Hafetz of the American Civil Liberties Union calls the case of alleged al-Qaeda detainee Ali Saleh Kahlah al-Marri (see June 23, 2003) a key test of “the most far-reaching use of detention powers” ever asserted by the executive branch. Al-Marri has spent five years incarcerated in the Charleston Naval Brig without being charged with a crime. “If President Obama is serious about restoring the rule of law in America, they can’t defend what’s been done to Marri. They would be completely buying into the Bush administration’s war on terror,” he says. Hafetz, who is scheduled to represent al-Marri before the Supreme Court in April, compares the Bush administration’s decision to leave al-Marri in isolation to his client’s being stranded on a desert island. “It’s a Robinson Crusoe-like situation,” he adds. Hafetz says that among the issues to be decided is “the question of who is a soldier, and who is a civilian.” He continues: “Is the fight against terrorism war, or is it not war? How far does the battlefield extend? In the past, they treated Peoria as a battlefield. Can an American be arrested in his own home and jailed indefinitely, on the say-so of the president?” Hafetz wants the Court to declare indefinite detention by executive fiat illegal. He also hopes President Obama will withdraw al-Marri’s designation as an enemy combatant and reclassify him as a civilian; such a move would allow al-Marri to either be charged with crimes and prosecuted, or released entirely. Civil liberties and other groups on both sides of the political divide have combined to file 18 amicus briefs with the Court, all on al-Marri’s behalf. The al-Marri decision will almost certainly impact the legal principles governing the disposal of the approximately 240 detainees still being held at Guantanamo.
Opinion of Former Bush Administration Officials - Former Bush State Department counsel John Bellinger says of his counterparts in the Obama administration: “They will have to either put up or shut up. Do they maintain the Bush administration position, and keep holding [al-]Marri as an enemy combatant? They have to come up with a legal theory.” He says that Obama officials will find it more difficult to put their ideals into action: “Governing is different from campaigning,” he notes, and adds that Obama officials will soon learn that “they can’t just set the clocks back eight years, and try every terror suspect captured abroad in the federal courts.” Former Attorney General John Ashcroft calls keeping al-Marri and other “enemy combatants” locked away without charges or trials a “sound decision” to “maximize the national interest,” and says that in the end, Obama’s approach will be much like Bush’s. “How will he be different?” he asks. “The main difference is going to be that he spells his name ‘O-b-a-m-a,’ not ‘B-u-s-h.’”
Current Administration's Opinion - Obama spokesman Larry Craig sums up the issue: “One way we’ve looked at this is that we own the solution. We don’t own the problem—it was created by the previous administration. But we’ll be held accountable for how we handle this.” [New Yorker, 2/23/2009]

Entity Tags: John Ashcroft, Barack Obama, American Civil Liberties Union, Ali Saleh Kahlah al-Marri, Bush administration (43), US Supreme Court, Obama administration, Jonathan Hafetz, Larry Craig, John Bellinger

Timeline Tags: Civil Liberties

In the case of Kiyemba v Obama the Court of Appeals for the District of Columbia Circuit unanimously blocks a judge’s order to free 17 Chinese Uighurs (see September 17, 2006 and June 30, 2008) from detention in Guantanamo. [New York Times, 2/18/2009; Constitution Project, 2/18/2009]
Not a Threat to the US - The Uighurs, members of a small Muslim ethnic and religious minority, have been in detention for seven years after being captured in Pakistan; they insist they were receiving training to resist Chinese oppression, and never harbored any ill will towards the US or had any intention of participating in attacks on US or US-allied targets. Judge Ricardo Urbina concurred in an October ruling. Even Bush officials had decided not to try to prove the 17 men were “enemy combatants”; instead, they said that they would continue imprisoning them because they had “trained for armed insurrection against their home country” in a Uighur camp in Afghanistan. The Obama administration can choose to release the Uighurs if it can find a country—the US or another nation—to accept the detainees for resettlement. Obama officials do not want to turn the Uighurs over to Chinese authorities for fear that they will be imprisoned and tortured.
Two Rulings, One on Release, One on Habeas Corpus - All three appellate judges agree to overturn Urbina’s order to release the Uighurs, but split 2-1 on a separate question: whether detainees such as the Uighurs have habeas corpus rights to challenge their detention. Two, Judges Arthur Randolph and Karen Henderson, say that the law, as decided by the Supreme Court in the June 2008 Boumediene v Bush case (see June 22, 2008), does not give judges the right to release detainees into the US. “Never in the history of habeas corpus,” the majority opinion finds, “has any court thought it had the power to order an alien held overseas brought into the sovereign territory of a nation and released into the general population.” Judge Judith Rogers dissents, writing that the ruling “ignores the very purpose” of the writ of habeas corpus, which is, she writes, to serve as “a check on arbitrary executive power.” If the court has no legal right to release the Uighurs into the US, Rogers writes, the Boumediene ruling has no meaning. A lawyer for the Uighurs, Susan Baker Manning, says the ruling means innocent people “can spend the rest of their lives in prison even though the US knows it’s a mistake.” [New York Times, 2/18/2009]
Civil Rights Organization 'Disappointed' in Ruling, Calls for Release - Sharon Bradford Franklin of the Constitution Project, a civil rights organization, writes: “We are disappointed by today’s DC Circuit ruling that denies freedom to the 17 men whom the government admits are not ‘enemy combatants’ and yet continues to hold at Guantanamo for a seventh year. President Obama should exercise his power to release the Uighurs into the US. The appellate court’s ruling that the trial court lacked the power to compel the executive branch to release the Uighurs into the United States in no way limits the ability of the executive branch to release the Uighurs on its own. We therefore call on President Obama to choose the right course and evaluate the terms under which the Uighurs may be released into the United States. The writ of habeas corpus is a fundamental constitutional right. For habeas corpus to have meaning, it must permit a court to end wrongful detentions. We regret that today’s decision failed to recognize the court’s ability to check arbitrary detention, such as that suffered by the Uighurs.” [Constitution Project, 2/18/2009]

Entity Tags: Sharon Bradford Franklin, Susan Baker Manning, US Supreme Court, Judith Rogers, Constitution Project, Barack Obama, Arthur Randolph, Karen Henderson, Obama administration

Timeline Tags: Civil Liberties

Retired Major General Anthony Taguba, who headed an intensive military investigation into the abuses at Abu Ghraib prison (see March 9, 2004), is one of the most prominent supporters of the call to investigate the Bush administration’s interrogation, detention, and torture policies. Taguba joins 18 human rights organizations, former State Department officials, former law enforcement officers, and former military leaders in asking President Obama to create a non-partisan commission to investigate those abuses. Even though prosecuting former Bush officials might be difficult, Taguba says, a commission would provide some measure of accountability for the practices Taguba calls “misguided,” “illegal,” “despicable and questionable.” Taguba wants the commission to study the Bush administration’s claims that torture provides good intelligence, which he disputes. He particularly wants the commission to investigate administration officials’ claims that the administration’s policies were legal. Taguba says he supports “a structured commission with some form of authority with clear objectives and a follow-on action plan. I’m not looking for anything that is prosecutorial in nature, unless a suspected violation of relevant laws occurred, which should be referred to the Department of Justice.… In my opinion, our military prosecuted those who were involved in torture or unlawful interrogation. And I think our military has come to terms with that. We are an institution that prides itself on taking corrective action immediately, admitting to it, and holding ourselves accountable. And we have done that. But I am not so sure that our civilian authorities in government have done that for themselves.” Speaking about the Bush Justice Department’s findings that torture and indefinite detentions are legal (see Late September 2001, November 11-13, 2001, December 28, 2001, January 9, 2002, August 1, 2002, and August 1, 2002), Taguba says: “This notion that a lot of constitutional legal experts—lawyers with great intellect, well educated—came up with such despicable and questionable legal findings that were contrary to the definition of defending the Constitution? And then they framed this as if the executive branch had the authority to extend beyond the constitution to establish a policy of torture and illegal detention?… Some of those that were tortured were innocent. How do we come to terms with those that were cruelly mistreated and were innocent, never charged, were illegally detained, and never compensated for their suffering? This is not a political issue, but a moral and ethical dilemma which has far-reaching implications.” [Salon, 2/21/2009]

Entity Tags: Antonio M. Taguba

Timeline Tags: Torture of US Captives

A Justice Department investigation finds that the legal work done by John Yoo and two other former Justice lawyers for the Bush administration was unacceptably deficient. Opinions written by Yoo, his former boss Jay Bybee of the Office of Legal Counsel (OLC), and Bybee’s successor, Steven Bradbury, often ignored legal precedent and existing case law as they took extralegal stances on a number of controversial issues, including torture and domestic surveillance. Many of the opinions, including the August 2002 “Golden Shield” memo (see August 1, 2002), were written specifically to authorize illegal acts such as waterboarding that had already taken place, in an apparent attempt to provide the Bush administration with retroactive legal “cover.” The investigation finds that in that memo, Yoo ignored the landmark 1952 Youngstown Supreme Court ruling (see June 2, 1952) that restricts presidential authority. The investigation also finds that in the March 2003 memo authorizing the military to ignore the law in using extreme methods in interrogating suspected terrorists (see March 14, 2003), Yoo ignored the advice of military lawyers and Justice Department officials who warned that the memo contained major legal flaws. In this and others of Yoo’s torture memos, the investigation finds that he went well beyond the legal bounds of interrogation methods, failed to cite legal cases that might have undercut the Bush administration’s claims of broad new war powers, and refused to rewrite his opinions in light of these caveats. And, the investigation finds, Yoo often went over the head of Attorney General John Ashcroft and dealt directly with the White House, particularly with White House lawyers David Addington and Alberto Gonzales. The investigation was headed by H. Marshall Jarrett, the head of the Justice Department’s Office of Professional Responsibility (OPR), and has been in operation since 2004, following the Abu Ghraib torture scandal and the leak of one of Yoo’s “torture memos.” It is unclear whether the final OPR report will find that the actions of the former OLC lawyers rose to the level of “professional misconduct.” The report is being reviewed by Attorney General Eric Holder and other Justice Department officials. A draft was actually completed last year, and a copy was supposed to be given to Senators Richard Durbin (R-IL) and Sheldon Whitehouse (D-RI), but then-Attorney General Michael Mukasey repeatedly blocked the report’s release in order to give Yoo, Bybee, and Bradbury time to prepare their responses. Durbin and Whitehouse have asked Jarrett to explain the delay in the report’s release. [Public Record, 2/22/2009]

Entity Tags: David S. Addington, Sheldon Whitehouse, Steven Bradbury, US Department of Justice, Richard (“Dick”) Durbin, Bush administration (43), Office of Professional Responsibility, Michael Mukasey, Eric Holder, Office of Legal Counsel (DOJ), H. Marshall Jarrett, Alberto R. Gonzales, John C. Yoo, John Ashcroft, Jay S. Bybee

Timeline Tags: Civil Liberties

Former Guantanamo detainee Binyam Mohamed (see May-September, 2001), a British citizen who suffered extensive abuse during his detention (see July 21, 2002 -- January 2004 and February 8, 2009) and is just now released (see February 22-24, 2009), says in a written statement that British officials from MI5 played an integral part in his abduction and torture at the hands of the CIA and Moroccan officials. Senior MPs say they intend to investigate his claims. Just after his arrival in London, Mohamed tells reporters: “For myself, the very worst moment came when I realized in Morocco that the people who were torturing me were receiving questions and materials from British intelligence.… I had met with British intelligence in Pakistan. I had been open with them. Yet the very people who I had hoped would come to my rescue, I later realized, had allied themselves with my abusers.” Days later, the Daily Mail will obtain documents from Mohamed’s American court proceedings that show MI5 agents twice gave CIA agents lists of questions they wanted to have asked, as well as dossiers of photographs. [Guardian, 2/24/2009; Daily Mail, 3/8/2009]
Gives Primary Blame to CIA - Mohamed places the bulk of the blame on his rendition and torture on the CIA, and says, “It is still difficult for me to believe that I was abducted, hauled from one country to the next, and tortured in medieval ways—all orchestrated by the United States government.” [Scotsman, 2/24/2009]
'They Sold Me Out' - Mohamed will later say that he reached his “lowest ebb” when he realized British agents were involved in his interrogation and torture. “They started bringing British files to the interrogations,” he will recall, “not one, but several of them, thick binders, some of them containing sheaves of photos of people who lived in London and places there like mosques. It was obvious the British were feeding them questions about people in London. When I realized that the British were co-operating with the people who were torturing me, I felt completely naked.… They sold me out.” The documents indicate that MI5 did not know where Mohamed was being held, but that its agents knew he was in a third nation’s custody through the auspices of the CIA. MI5 agents met with their CIA counterparts in September 2002, well after Mohamed’s rendition to Morocco, to discuss the case. [Daily Mail, 3/8/2009]
False Confession - He suffered tortures in Pakistan (see April 10-May, 2002), Morocco, and Afghanistan (see January-September 2004), including being mutilated with scalpels, a mock execution, sleep deprivation for days, being fed contaminated food, and being beaten for hours while hanging by his wrists from shackles in the ceiling. He says that the closest he came to losing his mind entirely was when, in US custody in Afghanistan, he was locked in a cell and forced to listen to a CD of rap music played at ear-shattering volume 24 hours a day for a month. It was these tortures that drove him to confess to being part of a plot to build a radioactive “dirty bomb” (see November 4, 2005), a confession he now says was untrue and given merely to avoid further torment. He also confessed to meeting Osama bin Laden and getting a passport from 9/11 plotter Khalid Shaikh Mohammed: “None of it was true.” [Daily Mail, 3/8/2009]
'Zero Doubt' of British Complicity - His lawyer, Clive Stafford Smith, says Mohamed is being cared for under the auspices of his legal team, and is “incredibly skinny and very emaciated.” Stafford Smith says he has “zero doubt” Britain was complicit in his client’s ill-treatment. “Britain knew he was being abused and left him,” he says. Stafford Smith also says Mohamed was subjected to “very serious abuse” in Guantanamo. Mike Gapes, the chairman of the House of Commons Foreign Affairs Committee, says he intends to question Foreign Secretary David Miliband and Foreign Office Minister Lord Malloch Brown over “outstanding issues,” which include “rendition, what happened to people in Guantanamo Bay, and black sites,” a reference to prisons in Afghanistan and elsewhere. Two British judges say they are suppressing “powerful evidence” of Mohamed’s torture at the insistence of Miliband and US authorities (see February 4, 2009). [Guardian, 2/24/2009] Miliband says Mohamed’s release was effected due to “intensive negotiations with the US government,” in which he played a key part. Edward Davey of the Liberal Democrats has little use for Miliband’s claims, saying, “It is telling that David Miliband is unable to give a straightforward yes or no as to whether British agents and officials have been complicit in torture,” and adds that “Mohamed’s case may just be the tip of the iceberg.” [Scotsman, 2/24/2009]
Evidence that MI5 Lied - The new revelations about MI5’s involvement contradict the testimony of MI5 officials, who in 2007 told Parliament’s Intelligence and Security Committee that the agency had no idea that Mohamed had been subjected to “extraordinary rendition” to Morocco or anywhere else. The Daily Mail will note, “The revelations will put Foreign Secretary David Miliband under even greater pressure to come clean about British involvement in the rendition and alleged torture of Muslim terror suspects.” [Daily Mail, 3/8/2009]

Entity Tags: Malloch Brown, Mike Gapes, Central Intelligence Agency, Binyam Mohamed, UK Security Service (MI5), Clive Stafford Smith, David Miliband, Edward Davey

Timeline Tags: Torture of US Captives

Attorney General Eric Holder confirms the Obama administration’s plans to close the Guantanamo Bay detention facility (see November 16, 2008 and January 22, 2009), but calls it a well-run, professional institution. Closing Guantanamo “will not be an easy process,” Holder says after visiting the site. “It’s one we will do in a way that ensures that people are treated fairly and that the American people are kept safe.” Holder leads the administration’s effort to close the facility within a year. Most of that time will be spent reviewing the case files and histories of the 245 inmates currently incarcerated there: “It’s going to take us a good portion of that time to look at all of the files that we have to examine, until we get our hands around what Guantanamo is, and also what Guantanamo was,” he says. Senator James Inhofe (R-OK), an outspoken advocate of keeping Guantanamo open (see February 5, 2009), says he is encouraged by Holder’s remarks. “I believe as more time goes by there is a chance the administration will grow to realize that we need Gitmo and must keep it open,” he says. “More time will allow facts to replace political rhetoric.” Inhofe is promoting legislation that will bar any Guantanamo detainees from coming to the US. [Associated Press, 2/25/2009]

Entity Tags: Eric Holder, James M. Inhofe, Obama administration

Timeline Tags: Torture of US Captives

A federal appeals court rejects the Obama administration’s assertion that a potential threat to national security should stop a lawsuit challenging the government’s warrantless wiretapping program. The Justice Department had requested an emergency stay in a case brought by a defunct Islamic charity, the Al Haramain Islamic Foundation (see February 28, 2006). Al Haramain has asked that classified information be made available to the court to prove its case that the electronic surveillance brought to bear against it by the government was illegal; Justice Department lawyers contend that the information needs to remain classified and unavailable to the court, and cite the “state secrets” privilege (see March 9, 1953) as legal justification. Although the court rejects the request for the stay, Justice Department lawyers say they will continue fighting to keep the information secret. “The government respectfully requests that the court refrain from further actions to provide plaintiffs with access to classified information,” says a filing made by the Justice Department in regards to the ruling. A lawyer for Al Haramain, Steven Goldberg, says: “All we wanted was our day in court and it looks like we’re finally going to get our day in court. This case is all about challenging an assertion of power by the executive branch which is extraordinary.” The American Civil Liberties Union’s Ann Brick says the court has now crafted a way to review the issue in which “national security isn’t put at risk, but the rule of law can still be observed.” [Associated Press, 2/27/2009] Days later, the Justice Department will file a brief announcing its intention to refuse to honor the appeals court’s decision (see March 2, 2009).

Entity Tags: Obama administration, Ann Brick, Steven Goldberg, US Department of Justice, Al Haramain Islamic Foundation

Timeline Tags: Civil Liberties

Some of the Justice Department memos released today.Some of the Justice Department memos released today. [Source: Los Angeles Times]The Department of Justice releases nine memos written after the 9/11 attacks that claimed sweeping, extraconstitutional powers for then-President Bush. The memos, written primarily by John Yoo of the Office of Legal Counsel (OLC), claim that Bush could, if he desired, order military raids against targets within the US, and order police or military raids without court warrants (see October 23, 2001). The only justification required would be that Bush had declared the targets of such raids to be suspected terrorists. Other powers the president had, according to the memos, were to unilaterally abrogate or abandon treaties with foreign countries, ignore Congressional legislation regarding suspected terrorists in US detention (see March 13, 2002), suspend First Amendment rights to freedom of speech and information dissemination (see October 23, 2001), and conduct a program of warrantless domestic surveillance (see September 25, 2001). In January, an opinion issued by the OLC claimed that the opinions of the earlier memos had not been acted upon since 2003, and were generally considered unreliable (see January 15, 2009). Attorney General Eric Holder, who signed off on the release of the memos, says: “Too often over the past decade, the fight against terrorism has been viewed as a zero-sum battle with our civil liberties. Not only is that thought misguided, I fear that in actuality it does more harm than good.” [American Civil Liberties Union [PDF], 1/28/2009 pdf file; US Department of Justice, 3/2/2009; US Department of Justice, 3/2/2009; New York Times, 3/2/2009]
Memos Laid Groundwork for Warrantless Wiretapping - Though many of the powers said to belong to the president in the memos were never exercised, the assertions led to the warrantless wiretapping of US citizens (see December 15, 2005 and Spring 2004) and the torture of detained terror suspects. [Newsweek, 3/2/2009]
'How To ... Evade Rule of Law' - Senate Judiciary Committee Chairman Patrick Leahy (D-VT) says the memos begin “to provide details of some of the Bush administration’s misguided national security policies” that have long been withheld from public scrutiny. Jennifer Daskal of Human Rights Watch says the memos collectively “read like a how-to document on how to evade the rule of law.” [Washington Post, 3/3/2009] Kate Martin of the Center for National Security Studies says that the memos were part of a larger effort “that would basically have allowed for the imposition of martial law.” [Newsweek, 3/2/2009]
'Tip of Iceberg' - The memos are, according to a former Bush administration lawyer, “just the tip of the iceberg” in terms of what the Bush administration authorized. Jameel Jaffer of the American Civil Liberties Union (ACLU) says the Bush administration memos “essentially argue that the president has a blank check to disregard the Constitution during wartime, not only on foreign battlefields, but also inside the United States.” [Los Angeles Times, 3/3/2009] The ACLU, which has sued to obtain these and other memos, applauds the release of the documents, and says it hopes this is the first step in a broader release. [Reuters, 3/2/2009]

Entity Tags: Eric Holder, Jennifer Daskal, Patrick J. Leahy, Office of Legal Counsel (DOJ), Jameel Jaffer, Kate Martin, John C. Yoo, Bush administration (43), American Civil Liberties Union, US Department of Justice

Timeline Tags: Civil Liberties

Columnist and international law expert Scott Horton writes of his horror and shock at the nine just-released Bush administration memos from the Justice Department designed to grant President Bush extraordinary executive authority (see March 2, 2009).
'Disappearing Ink' - Horton writes: “Perhaps the most astonishing of these memos was one crafted by University of California at Berkeley law professor John Yoo. He concluded that in wartime, the president was freed from the constraints of the Bill of Rights with respect to anything he chose to label as […] counterterrorism operations inside the United States” (see October 23, 2001, and October 23, 2001). Horton continues: “John Yoo’s Constitution is unlike any other I have ever seen. It seems to consist of one clause: appointing the president as commander in chief. The rest of the Constitution was apparently printed in disappearing ink.”
Timing of Repudiation Proves Bush Officials Found Claims Useful - Horton has no patience with the claims of former Office of Legal Counsel chief Steven Bradbury that the extraordinary powers Yoo attempted to grant Bush were not used very often (see January 15, 2009). “I don’t believe that for a second,” Horton notes, and notes Bradbury’s timing in repudiating the Yoo memos: five days before Bush left office. “Bradbury’s decision to wait to the very end before repealing it suggests that someone in the Bush hierarchy was keen on having it,” Horton asserts.
Serving Multiple Purposes - The memos “clear[ly]” served numerous different purposes, Horton notes. They authorized, or provided legal justification for, the massive domestic surveillance programs launched by military agencies such as the Defense Intelligence Agency and the National Security Agency (see September 25, 2001). But the memos went much farther, Horton says: “[T]he language of the memos suggest that much more was afoot, including the deployment of military units and military police powers on American soil. These memos suggest that John Yoo found a way to treat the Posse Comitatus Act as suspended.” They also gave Bush the apparent legal grounds to order the torture of people held at secret overseas sites (see March 13, 2002), and to hold accused terrorist Jose Padilla without charge or due process, even though the administration had no evidence whatsoever of the crimes he had been alleged to commit (see June 8, 2002).
American Dictatorship - Horton’s conclusion is stark. “We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship,” he writes. “The constitutional rights we learned about in high school civics were suspended. That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution. What we know now is likely the least of it.” [Harper's, 3/3/2009]

Entity Tags: National Security Agency, US Department of Justice, Office of Legal Counsel (DOJ), Scott Horton, Steven Bradbury, George W. Bush, Jose Padilla, Bush administration (43), Defense Intelligence Agency, John C. Yoo

Timeline Tags: Civil Liberties

Legal experts and civil libertarians are “stunned” by the recently released memos from the Bush-era Justice Department which assert sweeping powers for the president not granted by the Constitution (see March 2, 2009 and March 3, 2009). Yale law professor Jack Balkin calls the memos a demonstration of the Bush “theory of presidential dictatorship.” Balkin continues: “They say the battlefield is everywhere. And the president can do anything he wants, so long as it involves the military and the enemy.… These views are outrageous and inconsistent with basic principles of the Constitution as well as with two centuries of legal precedents. Yet they were the basic assumptions of key players in the Bush administration in the days following 9/11.” George Washington University law professor Orin Kerr agrees. “I agree with the left on this one,” he says. The approach in the memos “was simply not a plausible reading of the case law. The Bush [Office of Legal Counsel, or OLC] eventually rejected [the] memos because they were wrong on the law—and they were right to do so” (see January 15, 2009). Balkin says the time period of most of the memos—the weeks and months following the 9/11 attacks—merely provided a convenient excuse for the administration’s subversion of the Constitution. “This was a period of panic, and panic creates an opportunity for patriotic politicians to abuse their power,” he says. [Jack Balkin, 3/3/2009; Los Angeles Times, 3/4/2009] Civil litigator and columnist Glenn Greenwald writes that the memos helped provide the foundation for what he calls “the regime of secret laws under which we were ruled for the last eight years… the grotesque blueprint for what the US government became.” [Salon, 3/3/2009] Duke University law professor Walter Dellinger says that, contrary to the memos’ assertion of blanket presidential powers in wartime, Congress has considerable powers during such a time. Congress has, according to the Constitution, “all legislative powers,” including the power “to declare war… and make rules concerning captures on land and water” as well as “regulation of the land and naval forces.” Dellinger, who headed the OLC during the Clinton administration, continues: “You can never get over how bad these opinions were. The assertion that Congress has no role to play with respect to the detention of prisoners was contrary to the Constitution’s text, to judicial precedent, and to historical practice. For people who supposedly follow the text [of the Constitution], what don’t they understand about the phrase ‘make rules concerning captures on land and water’?” [Los Angeles Times, 3/4/2009]

Entity Tags: Orin S. Kerr, US Department of Justice, Office of Legal Counsel (DOJ), Jack Balkin, Walter Dellinger, Glenn Greenwald, Bush administration (43)

Timeline Tags: Civil Liberties

In response to a Freedom of Information Act lawsuit by the American Civil Liberties Union (ACLU), the CIA turns over unredacted pages of a classified internal agency report that concluded the techniques used on two prisoners “appeared to constitute cruel, inhumane, and degrading treatment, as defined by the International Convention Against Torture” (see October 21, 1994). The CIA also turns over evidence showing that videotapes of the two prisoners being tortured were destroyed (see March 6, 2009). The pages are from a 2004 report compiled by then-CIA Inspector General John Helgerson. The document reads in part: “In January 2003, OIG [Office of Inspector General] initiated a special review of the CIA terrorist detention and interrogation program. This review was intended to evaluate CIA detention and interrogation activities, and was not initiated in response to an allegation of wrongdoing. During the course of the special review, OIG was notified of the existence of videotapes of the interrogations of detainees. OIG arranged with the NCS [National Clandestine Service, the covert arm of the CIA] to review the videotapes at the overseas location where they were stored. OIG reviewed the videotapes at an overseas covert NCS facility in May 2003. After reviewing the videotapes, OIG did not take custody of the videotapes and they remained in the custody of NCS. Nor did OIG make or retain a copy of the videotapes for its files. At the conclusion of the special review in May 2004, OIG notified [the Justice Department] and other relevant oversight authorities of the review’s findings.” The report has never been made public, but information concerning it was revealed by the New York Times in 2005 (see May 7, 2004). [Public Record, 3/6/2009]

Entity Tags: American Civil Liberties Union, National Clandestine Service, John Helgerson, Central Intelligence Agency

Timeline Tags: Torture of US Captives

President Barack Obama orders a review of former President Bush’s signing statements. Bush often used signing statements to instruct administration officials how to implement, or to ignore, Congressional legislation and other laws (see Early 2005, January 13, 2006, and September 2007). Obama has sent memos to numerous federal agencies directing them to review Bush’s signing statements. White House press secretary Robert Gibbs says that other presidents have used signing statements to note potential problems and conflicts, and says Obama will continue that practice. But, Gibbs says, Obama will not use signing statements to disregard Congress’s intent in its legislation. [Associated Press, 3/9/2009]

Entity Tags: Barack Obama, Robert Gibbs, George W. Bush

Timeline Tags: Civil Liberties

The New York Review of Books publishes a lengthy article documenting the Red Cross’s hitherto-secret report on US torture practices at several so-called “black sites.” The International Committee of the Red Cross (ICRC) issued a report on “The Black Sites” in February 2007 (see October 6 - December 14, 2006), but that report has remained secret until now. These “black sites” are secret prisons in Thailand, Poland, Afghanistan, Morocco, Romania, and at least three other countries (see October 2001-2004), either maintained directly by the CIA or used by them with the permission and participation of the host countries.
Specific Allegations of Torture by Official Body Supervising Geneva - The report documents the practices used by American guards and interrogators against prisoners, many of which directly qualify as torture under the Geneva Conventions and a number of international laws and statutes. The ICRC is the appointed legal guardian of Geneva, and the official body appointed to supervise the treatment of prisoners of war; therefore, its findings have the force of international law. The practices documented by the ICRC include sleep deprivation, lengthy enforced nudity, subjecting detainees to extensive, intense bombardment of noise and light, repeated immersion in frigid water, prolonged standing and various stress positions—sometimes for days on end—physical beatings, and waterboarding, which the ICRC authors call “suffocation by water.” The ICRC writes that “in many cases, the ill-treatment to which they [the detainees] were subjected while held in the CIA program… constituted torture.” It continues, “In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel, inhuman, and degrading treatment.” Both torture and “cruel, inhuman, and degrading treatment” are specifically forbidden by Geneva and the Convention Against Torture, both of which were signed by the US (see October 21, 1994). The 14 “high-value detainees” whose cases are documented in the ICRC report include Abu Zubaida (see March 28, 2002), Khalid Shaikh Mohammed (see Shortly After February 29 or March 1, 2003), and Tawfiq bin Attash (see March 28, 2002-Mid-2004). All 14 remain imprisoned in Guantanamo. [New York Review of Books, 3/15/2009 pdf file; New York Review of Books, 3/15/2009] Based on the ICRC report and his own research, Danner draws a number of conclusions.
bullet The US government began to torture prisoners in the spring of 2002, with the approval of President Bush and the monitoring of top Bush officials, including Attorney General John Ashcroft. The torture, Danner writes, “clearly violated major treaty obligations of the United States, including the Geneva Conventions and the Convention Against Torture, as well as US law.”
bullet Bush, Ashcroft, and other top government officials “repeatedly and explicitly lied about this, both in reports to international institutions and directly to the public. The president lied about it in news conferences, interviews, and, most explicitly, in speeches expressly intended to set out the administration’s policy on interrogation before the people who had elected him.”
bullet Congress was privy to a large amount of information about the torture conducted under the aegis of the Bush administration. Its response was to pass the Military Commissions Act (MCA—see October 17, 2006), which in part was designed to protect government officials from criminal prosecutions under the War Crimes Act.
bullet While Congressional Republicans were primarily responsible for the MCA, Senate Democrats did not try to stop the bill—indeed, many voted for it. Danner blames the failure on its proximity to the November 2006 midterm elections and the Democrats’ fear of being portrayed as “coddlers of terrorists.” He quotes freshman Senator Barack Obama (D-IL): “Soon, we will adjourn for the fall, and the campaigning will begin in earnest. And there will be 30-second attack ads and negative mail pieces, and we will be criticized as caring more about the rights of terrorists than the protection of Americans. And I know that the vote before us was specifically designed and timed to add more fuel to that fire.” (Obama voted against the MCA, and, when it passed, he said, “[P]olitics won today.”)
bullet The damage done to the US’s reputation, and to what Danner calls “the ‘soft power’ of its constitutional and democratic ideals,” has been “though difficult to quantify, vast and enduring.” Perhaps the largest defeat suffered in the US’s “war on terror,” he writes, has been self-inflicted, by the inestimable loss of credibility in the Muslim world and around the globe. The decision to use torture “undermin[ed] liberal sympathizers of the United States and convinc[ed] others that the country is exactly as its enemies paint it: a ruthless imperial power determined to suppress and abuse Muslims. By choosing to torture, we freely chose to become the caricature they made of us.”
A Need for Investigation and Prosecution - Danner is guardedly optimistic that, under Democratic leadership in the White House and Congress, the US government’s embrace of torture has stopped, and almost as importantly, the authorization and practice of torture under the Bush administration will be investigated, and those responsible will be prosecuted for crimes against humanity. But, he notes, “[i]f there is a need for prosecution there is also a vital need for education. Only a credible investigation into what was done and what information was gained can begin to alter the political calculus around torture by replacing the public’s attachment to the ticking bomb with an understanding of what torture is and what is gained, and lost, when the United States reverts to it.” [New York Review of Books, 3/15/2009]

Entity Tags: Khallad bin Attash, Khalid Shaikh Mohammed, Bush administration (43), Barack Obama, Abu Zubaida, New York Review of Books, Central Intelligence Agency, George W. Bush, Geneva Conventions, John Ashcroft, International Committee of the Red Cross, Mark Danner

Timeline Tags: Torture of US Captives, Complete 911 Timeline

Lawrence Wilkerson, who served as former Secretary of State Colin Powell’s chief of staff and now chairs the New America Foundation/US-Cuba 21st Century Policy Initiative, writes an op-ed titled “Some Truths about Guantanamo Bay” for the Washington Note. Wilkerson explains why he believes so many people were captured and so many of those were tortured, for so little gain, and in the process covers several other issues regarding the Bush administration.
Handling of Terror Suspects - Wilkerson writes that the entire process of capturing, detaining, and processing suspected Islamist militants was marked by incompetence and a casual, improvisational approach. Most of the “suspects” captured during the first weeks and months of the Afghanistan invasion (see October 7, 2001) were merely picked up in sweeps, or bought from corrupt regional warlords, and transported wholesale to a variety of US bases and military camps, and then sent to Guantanamo, mostly in response to then-Defense Secretary Rumsfeld’s exhortation to “just get the b_stards to the interrogators.” Wilkerson blames the civilian leadership, for failing to provide the necessary information and guidance to make sensible, informed decisions about who should and should not have been considered either terror suspects or potential sources of information. When detainees were found not to have had any ties to Islamist radical groups, nor had any real intelligence value, they were kept at Guantanamo instead of being released. Wilkerson writes that “to have admitted this reality would have been a black mark on their leadership from virtually day one of the so-called Global War on Terror and these leaders already had black marks enough.… They were not about to admit to their further errors at Guantanamo Bay. Better to claim that everyone there was a hardcore terrorist, was of enduring intelligence value, and would return to jihad if released.” He writes that State Department attempts to rectify the situation “from almost day one” experienced almost no success.
Data Mining Called for Large Numbers of Detainees - Wilkerson notes what he calls “ad hoc intelligence philosophy that was developed to justify keeping many of these people,” a data mining concept called in the White House “the mosaic philosophy.” He explains: “Simply stated, this philosophy held that it did not matter if a detainee were innocent. Indeed, because he lived in Afghanistan and was captured on or near the battle area, he must know something of importance (this general philosophy, in an even cruder form, prevailed in Iraq as well, helping to produce the nightmare at Abu Ghraib). All that was necessary was to extract everything possible from him and others like him, assemble it all in a computer program, and then look for cross-connections and serendipitous incidentals—in short, to have sufficient information about a village, a region, or a group of individuals, that dots could be connected and terrorists or their plots could be identified. Thus, as many people as possible had to be kept in detention for as long as possible to allow this 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.” Unfortunately for this data mining effort, the gathering, cataloging, and maintenance of such information was carried out with what he calls “sheer incompetence,” rendering the information structure virtually useless either for intelligence or in prosecuting terror suspects.
No Information of Value Gained from Guantanamo Detainees - And, Wilkerson adds, he is not aware of any information gathered from Guantanamo detainees that made any real contribution to the US’s efforts to combat terrorism: “This is perhaps the most astounding truth of all, carefully masked by men such as Donald Rumsfeld and Richard Cheney in their loud rhetoric—continuing even now in the case of Cheney—about future attacks thwarted, resurgent terrorists, the indisputable need for torture and harsh interrogation, and for secret prisons and places such as Gitmo.”
Hindrance to Prosecution - This incompetence in gathering and storing information had a powerful impact on the ability of the US to prosecute the two dozen or so detainees who actually might be what Wilkerson calls “hardcore terrorists.” For these and the other detainees, he writes, “there was virtually no chain of custody, no disciplined handling of evidence, and no attention to the details that almost any court system would demand” (see January 20, 2009).
Shutting Down Guantanamo - Wilkerson writes that the Guantanamo detention facility could be shut down much sooner than President Obama’s promised year (see January 22, 2009), and notes he believes a plan for shutting down the facility must have existed “[a]s early as 2004 and certainly in 2005.”
War on Terror Almost Entirely Political - Wilkerson charges that the Bush administration’s driving rationale behind the “never-ending war on terror” was political: “For political purposes, they knew it certainly had no end within their allotted four to eight years,” he writes in an op-ed about the US’s detention policies. “Moreover, its not having an end, properly exploited, would help ensure their eight rather than four years in office.”
Cheney's Criticisms of Obama 'Twisted ... Fear-Mongering' - Wilkerson excoriates former Vice President Dick Cheney for his recent statements regarding President Obama and the “war on terror” (see February 4, 2009). Instead of helping the US in its fight against al-Qaeda and Islamic terrorism, Wilkerson writes, Cheney is making that fight all the more difficult (see February 5, 2009). “Al-Qaeda has been hurt, badly, largely by our military actions in Afghanistan and our careful and devastating moves to stymie its financial support networks. But al-Qaeda will be back. Iraq, Gitmo, Abu Ghraib, heavily-biased US support for Israel, and a host of other strategic errors have insured al-Qaeda’s resilience, staying power, and motivation. How we deal with the future attacks of this organization and its cohorts could well seal our fate, for good or bad. Osama bin Laden and his brain trust, Ayman al-Zawahiri, are counting on us to produce the bad. With people such as Cheney assisting them, they are far more likely to succeed.” [Washington Note, 3/17/2009]

Entity Tags: Colin Powell, Barack Obama, Bush administration (43), Richard (“Dick”) Cheney, US Department of Defense, Lawrence Wilkerson, Obama administration, US Department of State

Timeline Tags: Torture of US Captives

The Justice Department informs CIA Director Leon Panetta that, after due deliberation, it will recommend to the White House that it release four Bush-era “torture memos” almost uncensored (see April 16, 2009), in compliance with a Freedom of Information Act lawsuit filed by the American Civil Liberties Union (ACLU). Panetta, who is about to leave for an overseas trip, tells Attorney General Eric Holder and White House officials that the administration needs to consider the possibility that the memos’ release might expose CIA officers to lawsuits on allegations of torture and abuse. He also demands more censorship of the memos. The Justice Department informs other senior CIA officials, and as a courtesy, former agency directors Michael Hayden, Porter Goss, George Tenet, and John Deutch. Senior CIA officials object, arguing that the memos’ release could damage the agency’s ability to interrogate prisoners in the future and would further besmirch CIA officers who had acted on the Bush administration’s legal guidance. They also warn that the release might harm foreign intelligence services’ trust in the CIA’s ability to protect national security secrets. The four former directors also raise objections, arguing that the release might compromise ongoing intelligence operations. The torture authorized by the Bush White House had been approved under Tenet’s directorship. On March 19, the Justice Department requests a two-week delay in releasing the memos; department officials tell the court handling the lawsuit that the administration is considering releasing the memos without waiting for a court verdict. Two weeks later, Justice Department officials tell the court that the memos would come out on or before April 16. President Obama becomes more and more involved in the matter, leading a National Security Council (NSC) session on the issue and holding high-level sessions with Holder and other Cabinet members. Obama also discusses the issue with lower-level officials, and with an unidentified NSC official from the Bush administration. Obama’s biggest worry is the possibility of endangering ongoing intelligence operations. The Justice Department argues that the ACLU lawsuit would in the end force the administration to release the documents anyway. Obama eventually agrees, and the White House decides it will be better to release the memos voluntarily and avoid the perception of only releasing them after being forced to do so by a court ruling. Obama also decides that very few redactions should be made in the documents. The only redactions in the memos are the names of US employees, foreign services, and items related to techniques still in use. To mollify CIA personnel concerns, Obama will send a personal letter to CIA employees reassuring them that he supports them, understands the clandestine nature of their operations, and has no intention of prosecuting CIA employees who followed the legal guidelines set forth in the memos. [Associated Press, 4/17/2009]

Entity Tags: John Deutch, Barack Obama, American Civil Liberties Union, Bush administration (43), George J. Tenet, Leon Panetta, US Department of Justice, Eric Holder, Michael Hayden, Porter J. Goss

Timeline Tags: Torture of US Captives

President Obama disagrees with recent statements from former Vice President Dick Cheney that his administration’s policies are endangering America (see February 4, 2009 and March 15, 2009). “I fundamentally disagree with Dick Cheney—not surprisingly,” Obama tells CBS reporter Steve Kroft. “I think that Vice President Cheney has been at the head of a movement whose notion is somehow that we can’t reconcile our core values, our Constitution, our belief that we don’t torture, with our national security interests. I think he’s drawing the wrong lesson from history. [CNN, 3/22/2009; CBS News, 3/22/2009] The facts don’t bear him out.” Cheney “is eager to defend a legacy that was unsustainable,” Obama says, and notes that Cheney’s politics reflect a mindset that “has done incredible damage to our image and position in the world.” [Raw Story, 3/22/2009; CBS News, 3/22/2009] In response to Cheney’s advocacy of extreme interrogation methods—torture—of suspected terrorists, Obama asks: “How many terrorists have actually been brought to justice under the philosophy that is being promoted by Vice President Cheney? It hasn’t made us safer. What it has been is a great advertisement for anti-American sentiment.” [Politico, 3/21/2009; CBS News, 3/22/2009] “The whole premise of Guantanamo promoted by Vice President Cheney was that, somehow, the American system of justice was not up to the task of dealing with these terrorists,” Obama continues. “This is the legacy that’s been left behind and, you know, I’m surprised that the vice president is eager to defend a legacy that was unsustainable. Let’s assume that we didn’t change these practices. How long are we going to go? Are we going to just keep on going until, you know, the entire Muslim world and Arab world despises us? Do we think that’s really going to make us safer? I don’t know a lot of thoughtful thinkers, liberal or conservative, who think that was the right approach.” [Raw Story, 3/22/2009; CBS News, 3/22/2009]

Entity Tags: Barack Obama, Richard (“Dick”) Cheney, Obama administration, Bush administration (43)

Timeline Tags: Domestic Propaganda, 2010 Elections

The New York Times, in an unsigned editorial, warns of the possible ramifications of an upcoming Supreme Court case, Citizens United v. Federal Election Commission. The case was argued on March 15, eight days before the Web publication date of the editorial (see March 15, 2009) and nine days before the editorial is published in print; it is unclear in retrospect why the editorial is written as if the arguments have not yet taken place, or whether the dates of the published version are accurate. The Times sums up the case—a conservative nonprofit organization, Citizens United (CU), planned to air a 90-minute film that was highly critical of presidential candidate Hillary Clinton (D-NY) in the days before 2008 presidential primary elections, in violation of the 2002 Bipartisan Campaign Reform Act (BCRA, or “McCain-Feingold”—see March 27, 2002) that bans “electioneering communications” within 30 days of a primary election. CU was aware of the law, and filed a suit claiming that the law unconstitutionally violated its First Amendment rights. “The Supreme Court should affirm that ruling,” the Times states. The CU briefs “mak[e] a wide array of claims,” the “most dangerous” of which is a request to overturn the 1990 Austin Court decision (see March 27, 1990) that banned corporations from using monies from their general treasuries. The Times states: “If Citizens United prevails, it would create an enormous loophole in the law and allow corporate money to flood into partisan politics in ways it has not in many decades. It also would seriously erode the disclosure rules for campaign contributions.” [New York Times, 3/23/2009]

Entity Tags: Citizens United, Bipartisan Campaign Reform Act of 2002, US Supreme Court, Hillary Clinton, New York Times

Timeline Tags: Civil Liberties

Baltasar Garzon.Baltasar Garzon. [Source: Presidency of Argentina]A Spanish court begins preliminary work towards opening a criminal investigation into allegations that six former top Bush administration officials may be guilty of war crimes related to torture of prisoners at Guantanamo. Spanish law allows the investigation and prosecution of people beyond its borders in the case of torture or war crimes. Investigative judge Baltasar Garzon, who ordered the arrest of Chilean dictator Augusto Pinochet and has overseen the prosecution of numerous terrorists and human rights violators, wants to prosecute former US Attorney General Alberto Gonzales, former Justice Department lawyers John Yoo and Jay Bybee, former Defense Department officials William Haynes and Douglas Feith, and David Addington, the former chief of staff to then-Vice President Cheney. Many legal experts say that even if Garzon’s case results in warrants being issued, it is highly doubtful that the warrants would ever be served as long as the six potential defendants remain in the US. Spain has jurisdiction in the case because five Spanish citizens or residents have claimed to have been tortured at Guantanamo; the five faced charges in Spain, but were released after the Spanish Supreme Court ruled that evidence obtained through torture was inadmissible. Garzon’s complaint rests on alleged violations of the Geneva Conventions and the 1984 Convention Against Torture (see October 21, 1994). The complaint was prepared by Spanish lawyers with the assistance of experts in Europe and America, and filed by the Association for the Dignity of Prisoners, a Spanish human rights group. Lawyer Gonzalo Boye, who filed the complaint, says that Gonzales, Yoo, and the others have what he calls well-documented roles in approving illegal torture techniques, redefining torture, and ignoring the constraints set by the Convention Against Torture. “When you bring a case like this you can’t stop to make political judgments as to how it might affect bilateral relations between countries,” Boye says. “It’s too important for that.” Boye adds: “This is a case from lawyers against lawyers. Our profession does not allow us to misuse our legal knowledge to create a pseudo-legal frame to justify, stimulate, and cover up torture.” The US is expected to ignore any extradition requests occuring from the case. [New York Times, 3/28/2009; Associated Press, 3/28/2009]

Entity Tags: William J. Haynes, Jay S. Bybee, David S. Addington, John C. Yoo, Geneva Conventions, Convention Against Torture, Gonzalo Boye, Association for the Dignity of Prisoners, Alberto R. Gonzales, Baltasar Garzon, Bush administration (43)

Timeline Tags: Civil Liberties

The CIA’s torture of a supposed high-ranking al-Qaeda operative, Abu Zubaida, produced no information that helped foil any terrorist attacks or plots, according to former senior government officials who closely followed the interrogations. Zubaida was subjected to intensive waterboarding and other tortures (see April - June 2002), and provided information about a fantastic array of al-Qaeda plots that sent CIA agents all over the globe chasing down his leads. But none of his information panned out, according to the former officials. Almost everything Zubaida said under torture was false, and most of the reliable information gleaned from him—chiefly the names of al-Qaeda members and associates—was obtained before the CIA began torturing him. Moreover, the US’s characterization of Zubaida as “al-Qaeda’s chief of operations” and a “trusted associate” of Osama bin Laden turned out to be false as well. Several sources have challenged the government’s characterization of Zubaida as a “high-level al-Qaeda operative” before now (see Shortly After March 28, 2002 and April 9, 2002 and After).
'Fixer' for Islamists before 9/11 - Zubaida, a native Palestinian, never even joined al-Qaeda until after 9/11, according to information obtained from court documents and interviews with current and former intelligence, law enforcement, and military sources. Instead, he was a “fixer” for a number of radical Islamists, who regarded the US as an enemy primarily because of its support for Israel. Many describe Zubaida as a “travel agent” for al-Qaeda and other radical Islamists. He joined al-Qaeda because of the US’s preparations to invade Afghanistan. US officials are contemplating what, if any, charges they can use to bring him into court. Zubaida has alleged links with Ahmed Ressam, the so-called “Millennium Bomber” (see December 14, 1999), and allegedly took part in plans to retaliate against US forces after the overthrow of the Taliban in late 2001 (see December 17, 2001). But some US officials worry that bringing him into a courtroom would reveal the extent of his torture and abuse at the hands of the CIA, and that any evidence they might have against him is compromised because it was obtained in part through torture. Those officials want to send him to Jordan, where he faces allegations of conspiracy in terrorist attacks in that country.
Defending Zubaida's Information - Some in the US government still believe that Zubaida provided useful information. “It’s simply wrong to suggest that Abu Zubaida wasn’t intimately involved with al-Qaeda,” says a US counterterrorism official. “He was one of the terrorist organization’s key facilitators, offered new insights into how the organization operated, provided critical information on senior al-Qaeda figures… and identified hundreds of al-Qaeda members. How anyone can minimize that information—some of the best we had at the time on al-Qaeda—is beyond me.… Based on what he shared during his interrogations, he was certainly aware of many of al-Qaeda’s activities and operatives.” But the characterization of Zubaida as a well-connected errand runner was confirmed by Noor al-Deen, a Syrian teenager captured along with Zubaida at a Pakistani safe house (see March 28, 2002). Al-Deen readily answered questions, both in Pakistan and in a detention facility in Morocco. He described Zubaida as a well-known functionary with little knowledge of al-Qaeda operations. (Al-Deen was later transferred to Syria; his current whereabouts and status are unknown to the public.) A former Justice Department official closely involved in the early investigation of Zubaida says: “He was the above-ground support” for al-Qaeda and other radicals. “He was the guy keeping the safe house, and that’s not someone who gets to know the details of the plans. To make him the mastermind of anything is ridiculous.” A former intelligence officer says the US spent an inestimable amount of time and money chasing Zubaida’s “leads” to no effect: “We spent millions of dollars chasing false alarms.”
Connected to KSM - Zubaida knew radical Islamist Khalid Shaikh Mohammed for years. Mohammed, often dubbed “KSM” by US officials, approached Zubaida in the 1990s about finding financial backers for a plan he had concocted to fly a small plane into the World Trade Center. Zubaida declined involvement but recommended he talk to bin Laden. Zubaida quickly told FBI interrogators of Mohammed and other al-Qaeda figures such as alleged “dirty bomber” Jose Padilla (see May 8, 2002). He also revealed the plans of the low-level al-Qaeda operatives he fled Afghanistan with. Some wanted to strike US forces in Afghanistan with bombs, while others harbored ideas of further strikes on American soil. But he knew few details, and had no knowledge of plans by senior al-Qaeda operatives. At this point, the CIA took over the interrogations, and the torture began (see Mid-April-May 2002). As a result of the torture, Zubaida began alternating between obstinate silence and providing torrents of falsified and fanciful “intelligence”; when FBI “clean teams” attempted to re-interview some detainees who had been tortured in order to obtain evidence uncontaminated by abusive treatment, Zubaida refused to cooperate. Joseph Margulies, one of Zubaida’s attorneys, says: “The government doesn’t retreat from who KSM is, and neither does KSM. With Zubaida, it’s different. The government seems finally to understand he is not at all the person they thought he was. But he was tortured. And that’s just a profoundly embarrassing position for the government to be in.” Margulies and other lawyers want the US to send Zubaida to another country besides Jordan—Saudi Arabia, perhaps, where Zubaida has family. Military prosecutors have already deleted Zubaida’s name from the charge sheets of detainees who will soon stand trial, including several who were captured with Zubaida and are charged with crimes in which Zubaida’s involvement has been alleged.
Pressure from the White House - The pressure from the White House to get actionable information from Zubaida was intense (see Late March 2002), according to sources. One official recalls the pressure as “tremendous.” He says the push to force information from Zubaida mounted from one daily briefing to the next. “They couldn’t stand the idea that there wasn’t anything new. They’d say, ‘You aren’t working hard enough.’ There was both a disbelief in what he was saying and also a desire for retribution—a feeling that ‘He’s going to talk, and if he doesn’t talk, we’ll do whatever.’” [Washington Post, 3/29/2009]

Entity Tags: Jose Padilla, Al-Qaeda, Ahmed Ressam, Abu Zubaida, Bush administration (43), Federal Bureau of Investigation, Khalid Shaikh Mohammed, US Department of Justice, Joseph Margulies, Central Intelligence Agency, Noor al-Deen

Timeline Tags: Torture of US Captives

Louisiana State Representative John LaBruzzo (R-Metarie) introduces legislation in the Louisiana State House of Representatives that would require all new applicants for state welfare to submit to drug testing. Those who fail would be denied benefits until they completed a required counseling program. Currently, Louisiana screens applicants through interviews and questionnaires. Those suspected of being drug users are tested, and they can still get Temporary Assistance for Needy Families as long as they comply with the state-paid treatment program. They are denied benefits only if they refuse the counseling-treatment program or when they fail to meet its requirements. LaBruzzo triggered a storm of criticism last year when he suggested paying welfare recipients to be sterilized (see September 23, 2008); the ensuing controversy cost him the vice chairmanship of the House Health and Welfare Committee. That idea was quickly shelved, and LaBruzzo now calls it “one of several ideas” from a “brainstorming session” on how to reduce public assistance rolls. “I never intended to draft legislation,” he says. LaBruzzo has said that Louisiana is losing tax revenues because people receiving government aid reproduce at a faster rate than wealthier, better-educated people who pay more in taxes. He calls his idea of drug-testing all welfare applicants a “sensible way” to trim the number of households on assistance, and says it will “prove that welfare recipients in Louisiana are not criminals,” by giving taxpayers assurance that anyone on assistance is drug free. His idea would mandate the Department of Social Services (DSS) to outsource the testing program to a private firm. LaBruzzo also says that anyone convicted of a drug felony should have to wait 10 years before receiving public assistance. Currently, the law mandates a one-year waiting period. In 2008, about 14,000 families received a total of $17 million in assistance. The monthly benefit to a qualifying parent with two children is about $250. LaBruzzo incorrectly says Louisiana already spends $40 million on testing and treatment programs, but DSS spokesperson Trey Williams says the actual figure is a tenth of LaBruzzo’s claim—$4.1 million. LaBruzzo also claims that Louisiana is suffering from a “growing problem of welfare,” though the number of recipients has been much lower since 1996, when President Clinton signed a federal law that limited recipients to a cumulative five years of benefits. [New Orleans Times-Picayune, 3/30/2009]

Entity Tags: Trey Williams, John LaBruzzo, Louisiana State House of Representatives, Louisiana Department of Social Services

Timeline Tags: Civil Liberties

The CIA fires two contractors, psychologists James Mitchell and Bruce Jessen, from their lucrative consulting contracts. Mitchell and Jessen designed the CIA’s torture program (see January 2002 and After, April 16, 2002, Mid-April 2002, and Between Mid-April and Mid-May 2002), and earned $1,000 a day in doing so (see April 30, 2009). The CIA now believes that the two fundamentally misrepresented their knowledge of the safety and efficacy of particular torture techniques, particularly waterboarding. The firings are part of a larger “purge” by CIA Director Leon Panetta of all contractors involved in the Bush-era torture program. Panetta tells CIA employees that all contractors involved in the interrogation program and secret prisons are being “promptly terminated.” [ABC News, 6/16/2009]

Entity Tags: Leon Panetta, Bruce Jessen, Bush administration (43), James Elmer Mitchell, Central Intelligence Agency

Timeline Tags: Torture of US Captives

The CIA says it intends to close down the network of secret overseas prisons it used to torture suspected terrorists during the Bush administration. CIA Director Leon Panetta says that agency officers who worked in the program “should not be investigated, let alone punished” because the Justice Department under President Bush had declared their actions legal. Justice Department memos (see April 16, 2009) and investigations by the International Committee of the Red Cross (see October 6 - December 14, 2006) have shown that torture was used on several prisoners in these so-called “black sites.” Panetta says the secret detention facilities have not been used since 2006, but are still costing taxpayers money to keep open. Terminating security contracts at the sites would save “at least $4 million,” he says. The CIA has never revealed the location of the sites, but independent investigations and news reports place at least some of them in Afghanistan, Thailand, Poland, Romania, and Jordan. Agency officials have claimed that fewer than 100 prisoners were ever held in the sites, and around 30 of them were tortured. The last 14 prisoners were transferred to Guantanamo in 2006 (see September 2-3, 2006), but then-President Bush ordered the sites to remain open for future use. Since then, two suspected al-Qaeda operatives are known to have been kept in the sites. Panetta also says that the CIA will no longer use private contractors to conduct interrogations. [New York Times, 4/10/2009]

Entity Tags: Leon Panetta, Central Intelligence Agency

Timeline Tags: Torture of US Captives

President Obama presides over a deeply divided group of top advisers as he decides whether or not to release four Bush-era Justice Department memos documenting the Bush administration’s torture policies (see April 16, 2009). CIA Director Leon Panetta and his four immediate predecessors have already registered their flat disapproval of the memos’ release (see March 18, 2009 and After), as has Obama’s top counterterrorism adviser, John Brennan. On the other side are Attorney General Eric Holder, Director of National Intelligence Dennis Blair, and White House counsel Gregory Craig. Defense Secretary Robert Gates has indicated he supports the release because it is inevitable anyway—the memos are the subject of a Freedom of Information Act (FOIA) lawsuit—and because Obama is willing to promise that no CIA officers will be prosecuted for abuse. Joint Chiefs of Staff Chairman Michael Mullen sides with Gates. Obama presides over a “mini-debate” in the office of White House chief of staff Rahm Emanuel, where each side designates a spokesperson to present its views. When the debate is concluded, Obama immediately dictates a draft of his announcement of the memos’ release. During the discussion, Obama rejects the proposal that the memos’ release be delayed in anticipation of a so-called “truth commission” to investigate Bush torture policies, saying that such delay would just create further divisiveness. Craig argues persuasively that the judge overseeing the FOIA lawsuit is unlikely to grant any delays. Obama aides later say the president’s decision is in keeping with his frequent campaign promises that he would not only stop the torture and abuse of prisoners in US custody, but get to the truth behind the Bush administration’s torture policies. [Newsweek, 4/18/2009; Washington Post, 4/24/2009]

Entity Tags: Robert M. Gates, US Department of Justice, Rahm Emanuel, Leon Panetta, Greg Craig, Dennis C. Blair, Barack Obama, John O. Brennan, Eric Holder, Michael Mullen

Timeline Tags: Torture of US Captives

The White House releases four key Justice Department memos documenting the CIA’s use of harsh interrogation methods—torture—against suspected terrorists. The memos were released as a result of a Freedom of Information Act lawsuit filed by the American Civil Liberties Union (ACLU). The documents show that two high-level detainees were subjected to waterboarding at least 266 times between them. Al-Qaeda operative Abu Zubaida was waterboarded at least 83 times in August 2002, contradicting earlier CIA reports that he “broke” after a single waterboarding session (see December 10, 2007). Confessed 9/11 mastermind Khalid Shaikh Mohammed was waterboarded at least 183 times in March 2003. The so-called “insect” technique—exposure to insects within an enclosed box—was approved for use on Zubaida, but apparently never used. Numerous prisoners were subjected to “walling” and “sleep deprivation,” with at least one detainee subjected to the technique for 180 hours (over seven days). Three of the memos were written by then-Office of Legal Counsel (OLC) chief Steven Bradbury in May 2005 (see May 10, 2005, May 10, 2005, and May 30, 2005), and the fourth by Bradbury’s predecessor, Jay Bybee, in August 2002 (see August 1, 2002). [American Civil Liberties Union, 4/16/2009; New York Times, 4/19/2009; BBC, 4/23/2009] Senate Judiciary Committee chairman Patrick Leahy (D-VT) says: “These legal memoranda demonstrate in alarming detail exactly what the Bush administration authorized for ‘high value detainees’ in US custody. The techniques are chilling. This was not an ‘abstract legal theory,’ as some former Bush administration officials have characterized it. These were specific techniques authorized to be used on real people.” [CNN, 4/17/2009] House Judiciary Committee chairman John Conyers (D-MI) agrees, saying: “This release, as well as the decision to ban the use of such techniques in the future, will strengthen both our national security and our commitment to the rule of law and help restore our country’s standing in the international community. The legal analysis and some of the techniques in these memos are truly shocking and mark a disturbing chapter in our nation’s history.” [Think Progress, 4/16/2009] Senate Intelligence Committee chairwoman Dianne Feinstein (D-CA), whose committee is conducting an investigation of abusive interrogation methods used during the Bush administration, says Bush officials “inaccurately interpreted” the Geneva Conventions prohibiting torture. “I find it difficult to understand how the opinions found these interrogation techniques to be legal,” she says. “For example, waterboarding and slamming detainees head-first into walls, as described in the OLC opinions, clearly fall outside what is legally permissible.” [United Press International, 4/16/2009]
White House Condemns Methods, Opposes Investigations - Attorney General Eric Holder says of the memos: “The president has halted the use of the interrogation techniques described in these opinions, and this administration has made clear from day one that it will not condone torture. We are disclosing these memos consistent with our commitment to the rule of law.” Holder adds that, according to a Justice Department statement, “intelligence community officials who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice, would not face federal prosecutions for that conduct.” Holder states, “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.” [US Department of Justice, 4/16/2009] President Obama condemns what he calls a “dark and painful chapter in our history,” and promises that such torture techniques will never be used again. However, he restates his opposition to a lengthy investigation into the program, saying that “nothing will be gained by spending our time and energy laying blame for the past.” In contrast, Leahy says that the memos illustrate the need for an independent investigation. Dennis Blair, the director of national intelligence, points out that the memos were written at a time when the CIA was working to prevent a repeat of the 9/11 attacks. “Those methods, read on a bright, sunny, safe day in April 2009, appear graphic and disturbing,” he says. “But we will absolutely defend those who relied on these memos.” [New York Times, 4/19/2009] The ACLU demands criminal prosecution of Bush officials for their torture policies (see April 16, 2009). [American Civil Liberties Union, 4/16/2009]
Techniques Include Waterboarding, Insect Exposure, 'Walling' - The memos show that several techniques were approved for use, including waterboarding, exposure to insects within a “confinement box,” being slammed into a wall, sleep deprivation, stress positions, forced nudity, and others. [American Civil Liberties Union, 4/16/2009; New York Times, 4/19/2009; BBC, 4/23/2009]
Waterboarded Well beyond Allowed Procedures - Because the information about the waterboarding of Zubaida and Mohammed comes from the classified and heavily redacted CIA’s inspector general report, which has not yet been released to the public, the information is at least in part based on the videotapes of Zubaida’s interrogation sessions that were later destroyed by CIA officials (see March 6, 2009). The CIA memo explained that detainees could be waterboarded between 12 and 18 times in a single day, but only on five days during a single month—which mathematically only adds up to 90 times in a month, and thus does not explain how Mohammed could have been waterboarded 183 times in a month if these procedures were being followed. The memos also reveal that in practice, the waterboarding went far beyond the methodologies authorized by the Justice Department and used in SERE training (see December 2001 and July 2002).
Information Unearthed by Blogger - Initial media reports fail to divulge the extraordinary number of times Zubaida and Mohammed were waterboarded. It falls to a blogger, Marcy Wheeler, to unearth the information from the CIA memo and reveal it to the public (see April 18, 2009). [Marcy Wheeler, 4/18/2009]

Entity Tags: Marcy Wheeler, Central Intelligence Agency, Dennis C. Blair, Khalid Shaikh Mohammed, Dianne Feinstein, Jay S. Bybee, Geneva Conventions, Eric Holder, Barack Obama, Bush administration (43), John Conyers, Office of Legal Counsel (DOJ), US Department of Justice, American Civil Liberties Union, Steven Bradbury, Patrick J. Leahy, Abu Zubaida, Obama administration

Timeline Tags: Torture of US Captives

Fox News commentators mock the idea of using insects to torture prisoners, as was revealed in recently released Justice Department torture memos (see April 16, 2009). Mike Huckabee (R-AR), the former governor of Arkansas and a 2008 presidential candidate who now has his own talk show on Fox, says, “Look, I’ve been in some hotels where there were more bugs than these guys faced.” Huckabee goes on to characterize the Obama administration’s version of prisoner interrogation, saying, “We’re going to talk to them, we’re going to have a nice conversation, we’re going to invite them down for some tea and crumpets.” Huckabee’s fellow commentators Gretchen Carlson and Steve Doocy join in the hilarity. [Media Matters, 4/17/2009; Media Matters, 4/21/2009]

Entity Tags: Gretchen Carlson, Fox News, Steve Doocy, Mike Huckabee

Timeline Tags: Torture of US Captives, Domestic Propaganda

Marcy Wheeler.Marcy Wheeler. [Source: Project Censored]Progressive blogger Marcy Wheeler, who posts under the moniker “emptywheel” at FireDogLake.com, finds that, upon careful perusal of the March 30, 2005 CIA torture memo just released by the Obama administration (see May 30, 2005 and April 16, 2009), two suspected terrorists, Abu Zubaida and Khalid Shaikh Mohammed, were waterboarded 266 times. Initial, more cursory news reports on the memo did not reveal this fact. The next day, the New York Times will cite Wheeler in its report on the discovery. [Marcy Wheeler, 4/18/2009; New York Times, 4/19/2009] Wheeler writes: “The CIA wants you to believe waterboarding is effective. Yet somehow, it took them 183 applications of the waterboard in a one month period to get what they claimed was cooperation out of KSM. That doesn’t sound very effective to me.” [Marcy Wheeler, 4/18/2009] Days later, an unidentified “US official with knowledge of the interrogation program” will tell a Fox News reporter that the claim of 183 waterboardings for Mohammed is inaccurate and misleading. Mohammed was only waterboarded five times, the official will claim. The figure of 183 is the number of “pours” Mohammed was subjected to. “The water was poured 183 times—there were 183 pours,” the official says, adding, “[E]ach pour was a matter of seconds.” The report of five waterboardings for Mohammed comes from a 2007 Red Cross report, the official will say. [Fox News, 4/28/2009]

Entity Tags: Marcy Wheeler, Obama administration, FireDogLake (.com), Central Intelligence Agency, Abu Zubaida, New York Times, Khalid Shaikh Mohammed

Timeline Tags: Torture of US Captives, Complete 911 Timeline

Former CIA Director Michael Hayden refuses to confirm information from a recently released CIA memo that shows alleged 9/11 mastermind Khalid Shaikh Mohammed had been waterboarded 183 times in a single month (see April 16, 2009). Even though the memo has been released to the public, Hayden says he believes that information is still classified. Hayden says he opposed the release of the memo and three others recently released by the White House. Even though President Obama has said that the US will never use waterboarding and other “harsh interrogation techniques” again, Hayden says: “At the tactical level, what we have described for our enemies in the midst of a war are the outer limits that any American would ever go to in terms of interrogating an al-Qaeda terrorist. That’s very valuable information. Now, it doesn’t mean we would always go to the outer limits, but it describes the box within which Americans will not go beyond. To me, that’s very useful for our enemies, even if as a policy matter, this president at this time had decided not to use one, any, or all of those techniques. It reveals the outer limits. That’s very important.” Hayden also disputes reports that suspected terrorist Abu Zubaida revealed nothing new after being tortured; he says that after Zubaida was subjected to waterboarding and other unspecified “techniques,” he revealed information leading to the capture of suspected terrorist Ramzi bin al-Shibh. [New York Times, 4/19/2009; Think Progress, 4/19/2009] Days later, former FBI interrogator Ali Soufan will reveal information that disputes Hayden’s claims (see Late March through Early June, 2002 and April 22, 2009).

Entity Tags: Central Intelligence Agency, Michael Hayden

Timeline Tags: Torture of US Captives

Responding to the news that Khalid Shaikh Mohammed was waterboarded 183 times in a single month (see April 18, 2009), Senator John McCain (R-AZ) reiterates his opposition to waterboarding and to torture: “One is too much. Waterboarding is torture, period. I can ensure [sic] you that once enough physical pain is inflicted on someone, they will tell that interrogator whatever they think they want to hear. And most importantly, it serves as a great propaganda tool for those who recruit people to fight against us.” He adds, “The image of the United States of America throughout the world is a recruiting tool for Islamic extremists.” However, McCain says it was a “serious mistake” for the Obama administration to release the CIA torture memos (see April 16, 2009), saying, “The release of these memos helps no one, doesn’t help America’s image, does not help us address the issue.” [Think Progress, 4/20/2009]

Entity Tags: Khalid Shaikh Mohammed, Obama administration, John McCain

Timeline Tags: Torture of US Captives

The Senate Armed Services Committee releases a report showing that CIA and Pentagon officials explored ways to “break” Taliban and al-Qaeda detainees in early 2002, eight months before the Justice Department issued its “golden shield” memo (see August 1, 2002) approving the use of waterboarding and nine other methods of interrogation that most legal observers believe amount to torture. The report, under Pentagon review since before its release, focuses solely on military interrogations, and not on interrogations carried out by CIA officers and contractors; it rejects claims by former Defense Secretary Donald Rumsfeld and other Bush administration officials that Pentagon policies played no role in the torture of prisoners in US custody. Committee chairman Carl Levin (D-MI) says the report shows a direct link between early Bush administration policy decisions and the torture and abuse of detainees. “Senior officials sought out information on, were aware of training in, and authorized the use of abusive interrogation techniques,” Levin says. “Those senior officials bear significant responsibility for creating the legal and operational framework for the abuses. The paper trail on abuse leads to top civilian leaders, and our report connects the dots. This report, in great detail, shows a paper trail going from that authorization” by Rumsfeld “to Guantanamo to Afghanistan and to Iraq.” [Senate Armed Services Committee, 11/20/2008 pdf file; New York Times, 4/21/2009; Agence France-Presse, 4/21/2009; Washington Post, 4/22/2009]
Torture Policies Driven from Top - One of the report’s findings is that top Bush administration officials, and not a “few bad apples” as many of that administration’s officials have claimed, are responsible for the use of torture against detainees in Guantanamo, Afghanistan, Iraq, and elsewhere. Levin says in a statement that the report proves that such claims “were simply false.” He adds that the report is “a condemnation of both the Bush administration’s interrogation policies and of senior administration officials who attempted to shift the blame for abuse—such as that seen at Abu Ghraib, Guantanamo Bay, and Afghanistan—to low-ranking soldiers.” [Senate Armed Services Committee, 11/20/2008 pdf file; Washington Post, 4/22/2009] The report adds details to the material already released that showed Bush officials, particularly those in the Offices of the Vice President and Defense Secretary, pushed for harsher and more brutal interrogation techniques to be used during the run-up to war with Iraq, in hopes that results might prove the link between Iraq and al-Qaeda that administration officials had long touted (see December 11, 2008). Levin says: “I think it’s obvious that the administration was scrambling then to try to find a connection, a link [between al-Qaeda and Iraq]. They made out links where they didn’t exist.” Senior Guantanamo interrogator David Becker confirmed that only “a couple of nebulous links” between al-Qaeda and Iraq were uncovered during interrogations of unidentified detainees. [McClatchy News, 4/21/2009]
Ignored Warnings that Torture Techniques Worthless, Illegal - The report, released in classified form in December 2008 (see December 11, 2008), also documents multiple warnings from legal sources and trained interrogation experts that the techniques could backfire, producing false and erroneous intelligence, and might violate US and international law. One Army lieutenant colonel warned in 2002 that coercion “usually decreases the reliability of the information because the person will say whatever he believes will stop the pain,” according to the Senate report. Another official, after being briefed on plans to use “extreme methods” on detainees, asked, “Wouldn’t that be illegal?” [Senate Armed Services Committee, 11/20/2008 pdf file; Agence France-Presse, 4/21/2009; Washington Post, 4/22/2009]
Torture Methods Became Procedures at Detention Sites - Instead of being abandoned, the methods became the basis for harsh interrogations at Guantanamo, Abu Ghraib, Bagram, and other US detention facilities around the world, including the CIA’s so-called “black sites.” [Senate Armed Services Committee, 11/20/2008 pdf file; Washington Post, 4/22/2009]
White House Officials Ignorant of SERE Techniques - The report—261 pages long and with almost 1,800 footnotes—documents how techniques from a US military training program called Survival, Evasion, Resistance, and Escape (SERE) were adapted for use against detainees. SERE trains US soldiers to resist harsh interrogation methods if captured by an enemy that does not observe the Geneva Conventions’ ban on torture. The military’s Joint Personnel Recovery Agency (JRPA) reverse-engineered SERE methods to use against detainees (see December 2001). Other tactics, such as waterboarding, were culled from methods used by Chinese Communists against US soldiers captured during the Korean War (see July 2002). [Senate Armed Services Committee, 11/20/2008 pdf file; Agence France-Presse, 4/21/2009; Washington Post, 4/22/2009] According to the report, Bush White House officials seemed unaware of the Chinese Communist origins of the SERE tactics, and were apparently unaware that veteran SERE trainers insisted that the methods were useless for getting reliable information from a prisoner. Moreover, the former military psychologist who recommended that the CIA adopt SERE techniques “had never conducted a real interrogation.” One CIA official called the process “a perfect storm of ignorance and enthusiasm.” Bush administration officials also ignored concerns raised by military legal experts over the efficacy and legality of the techniques (see November 2002).
Torture Policies Directly Responsible for Abu Ghraib Scandal - The Armed Service Committee concludes that the abuses at Abu Ghraib were a direct result of the Bush torture policies. It writes: “The abuses of detainees at Abu Ghraib in late 2003 was not simply the result of a few soldiers acting on their own.… Rumsfeld’s December 2, 2002 authorization of aggressive interrogation techniques and subsequent interrogation policies and plans approved by senior military and civilian officials (see December 2, 2002) conveyed the message that physical pressures and degradation were appropriate treatment for detainees in US custody.” [Senate Armed Services Committee, 11/20/2008 pdf file]

Entity Tags: Carl Levin, Central Intelligence Agency, Senate Armed Services Committee, Donald Rumsfeld, US Department of Defense, Geneva Conventions, Joint Personnel Recovery Agency, Bush administration (43)

Timeline Tags: Torture of US Captives

Ali Soufan, an FBI supervisory special agent from 1997 to 2005, writes an op-ed for the New York Times about his experiences as a US interrogator. Soufan, who was one of the initial interrogators of suspected al-Qaeda operative Abu Zubaida (see Late March through Early June, 2002), says he has remained silent for seven years “about the false claims magnifying the effectiveness of the so-called enhanced interrogation techniques like waterboarding.” Until now, he has spoken only in closed government hearings, “as these matters were classified.” But now that the Justice Department has released several memos on interrogation (see April 16, 2009), he can publicly speak out about the memos. “I’ve kept my mouth shut about all this for seven years,” Soufan says. “I was in the middle of this, and it’s not true that these techniques were effective. We were able to get the information about Khalid Shaikh Mohammed in a couple of days. We didn’t have to do any of this [torture]. We could have done this the right way.” [New York Times, 4/22/2009; Newsweek, 4/25/2009] In early 2002, Soufan trained Guantanamo interrogators in the use of non-coercive interrogation techniques; a colleague recalls the military intelligence officials in the session being resistant to the ideas Soufan proposed (see Early 2002). [Newsweek, 4/25/2009]
'False Premises' Underpinning Use of Torture - Soufan says the memos are based on what he calls “false premises.” One is the August 2002 memo granting retroactive authorization to use harsh interrogation methods on Zubaida on the grounds that previous methods had been ineffective (see August 1, 2002). Soufan asserts that his questioning of Zubaida had indeed been productive (contradicting earlier CIA claims—see December 10, 2007), and that he used “traditional interrogation methods” to elicit “important actionable intelligence” from the suspected operative. The harsh methods later used on Zubaida produced nothing that traditional methods could not have produced, Soufan says; moreover, those harsh techniques—torture—often “backfired” on the interrogators. Many of the methods used on detainees such as Zubaida remain classified, Soufan writes: “The short sightedness behind the use of these techniques ignored the unreliability of the methods, the nature of the threat, the mentality and modus operandi of the terrorists, and due process.”
False Claims 'Proving' Usefulness of Torture - Some claim that Zubaida gave up information leading to the capture of suspected terrorists Ramzi bin al-Shibh and Jose Padilla. “This is false,” Soufan writes. “The information that led to Mr. Shibh’s capture came primarily from a different terrorist operative who was interviewed using traditional methods. As for Mr. Padilla, the dates just don’t add up: the harsh techniques were approved in the memo of August 2002, Mr. Padilla had been arrested that May.”
Restoring the 'Chinese Wall' - Because of the use of torture by the CIA, the two agencies will once again be separated by what Soufan calls “the so-called Chinese wall between the CIA and FBI, similar to the communications obstacles that prevented us from working together to stop the 9/11 attacks.” Since the FBI refused to torture suspects in its custody, “our agents who knew the most about the terrorists could have no part in the investigation. An FBI colleague of mine who knew more about Khalid Shaikh Mohammed than anyone in the government was not allowed to speak to him.”
Targeted Investigations - Soufan writes that any investigations into the use of torture by the CIA should not seek to punish the interrogators who carried out the government’s policies. “That would be a mistake,” he writes. “Almost all the agency officials I worked with on these issues were good people who felt as I did about the use of enhanced techniques: it is un-American, ineffective, and harmful to our national security.” Soufan goes farther, adding, “It’s worth noting that when reading between the lines of the newly released memos, it seems clear that it was contractors, not CIA officers, who requested the use of these techniques.” The CIA itself must not be targeted for retribution, Soufan writes, as “[t]he agency is essential to our national security.” Instead, “[w]e must ensure that the mistakes behind the use of these techniques are never repeated.” [New York Times, 4/22/2009; Newsweek, 4/25/2009]

Entity Tags: US Department of Justice, Khalid Shaikh Mohammed, Jose Padilla, Federal Bureau of Investigation, Ali Soufan, Abu Zubaida, Ramzi bin al-Shibh

Timeline Tags: Torture of US Captives, Complete 911 Timeline

Liz Cheney, a former State Department official and the daughter of former Vice President Dick Cheney, defends the Bush administration’s practices of torture by denying that anything authorized by the administration was, in fact, torture. Cheney, interviewed on MSNBC, is responding to the issues raised by the recent Senate Armed Services Committee report on Bush-era torture policies (see April 21, 2009). “The tactics are not torture, we did not torture,” she says. To bolster her denial, Cheney says that the tactics are not torture because they were derived from training methods employed in the SERE program (see December 2001, January 2002 and After, and July 2002). “Everything that was done in this program, as has been laid out and described before, are tactics that our own people go through in SERE training,” Cheney says. “We did not torture our own people. These techniques are not torture.” Progressive news Web site Think Progress notes that in the May 30, 2005 torture memo (see May 30, 2005), then-Justice Department official Steven Bradbury wrote, “Individuals undergoing SERE training are obviously in a very different situation from detainees undergoing interrogation; SERE trainees know it is part of a training program, not a real-life interrogation regime, they presumably know it will last only a short time, and they presumably have assurances that they will not be significantly harmed by the training.” [Think Progress, 4/23/2009]

Entity Tags: Bush administration (43), Steven Bradbury, Senate Armed Services Committee, Elizabeth (“Liz”) Cheney

Timeline Tags: Torture of US Captives

Former House Speaker Newt Gingrich (R-GA), a likely candidate for the 2012 Republican presidential candidacy, refuses to say whether waterboarding is or is not torture. Interviewed on Fox News, Gingrich calls the release of the four Bush-era Justice Department memos authorizing and defending torture (see April 16, 2009) “a big mistake,” but adds, “I want to see the United States run the risk, at times, of not learning certain things in order to establish a standard for civilization.” When asked if waterboarding is torture, Gingrich refuses to give a straight answer. “I think it’s something we shouldn’t do,” he says, but then adds: “Lawyers I respect a great deal say it is absolutely within the law. Other lawyers say it absolutely is not. I mean, this is a debatable area.” When asked if waterboarding violates the Geneva Conventions, Gingrich again demurs, saying, “I honestly don’t know.” He then says, “I think—I think that there—I am exactly where Senator [John] McCain was.” McCain has long opposed the use of torture (see July 24, 2005 and After, October 1, 2005, November 21, 2005, December 13, 2005, December 15, 2005, and April 20, 2009). [Think Progress, 4/26/2004]

Entity Tags: John McCain, Newt Gingrich, Bush administration (43)

Timeline Tags: Torture of US Captives

New York Times editor Clark Hoyt, in a column entitled “Telling the Brutal Truth,” writes of the lengthy discussions among Times editors and staffers on using the term “torture” in their reports and editorials. Hoyt writes that the term is not used in news reports, though it is in editorials. “Until this month,” he writes, “what the Bush administration called ‘enhanced’ interrogation techniques were ‘harsh’ techniques in the news pages of the Times. Increasingly, they are ‘brutal.’” He characterizes the decision to use, or not use, the word “torture” as an example of “the linguistic minefields that journalists navigate every day in the quest to describe the world accurately and fairly.” He notes that the final decision—to rely on the adjective “brutal”—“displeas[es] some who think ‘brutal’ is just a timid euphemism for torture [as well as] their opponents who think ‘brutal’ is too loaded.”
Reader Criticism - Hoyt notes that some readers have criticized the Times for its lack of “backbone” in not using the term “torture” in its reporting, with one writing that by refusing to use the term, “you perpetuate the fantasy that calling a thing by something other than its name will change the thing itself.” Others say that even using the word “brutal” is “outrageously biased.”
'Harsh' Not Accurately Descriptive - Hoyt notes that in the process of editing an April 10 news report on the CIA’s closing of its network of secret overseas prisons (see April 10, 2009), reporter Scott Shane and editor Douglas Jehl debated over the wording of the first paragraph. Jehl had written that the interrogation methods used in the prisons were “widely denounced as illegal torture,” a phrase Jehl changed to “harshest interrogation methods.” Shane argued that the term “harshest” was not strong enough, and the two agreed to use the word “brutal.” After reading the recently released Justice Department torture memos (see April 16, 2009), managing editor Jill Abramson said a new and stronger term needed to be used. “Harsh sounded like the way I talked to my kids when they were teenagers and told them I was going to take the car keys away,” she says. She, too, came down in favor of “brutal” after conferring with legal experts and Washington bureau chief Dean Baquet. But senior editors have all agreed that the word torture will not be used except in quoting others’ descriptions of the methods. “I have resisted using torture without qualification or to describe all the techniques,” Jehl says. “Exactly what constitutes torture continues to be a matter of debate and hasn’t been resolved by a court. This president and this attorney general say waterboarding is torture, but the previous president and attorney general said it is not. On what basis should a newspaper render its own verdict, short of charges being filed or a legal judgment rendered?” [New York Times, 4/25/2009]
Accusation of Bias, Semantic Games - Media critic Brad Jacobson accuses Hoyt and the Times staff of engaging in meaningless semantic wordplay instead of labeling torture as what it is, and notes that Hoyt seems to admit that public opinion, not journalistic standards, has determined what terms the Times will and will not use. Jacobson writes: “1) If the Times called techniques such as waterboarding torture in its reporting, which it should based on US and international law, legal experts, historians, military judges, combat veterans, and human rights organizations, and described, however briefly, what that torture entailed, then the use of modifying adjectives such as ‘harsh’ or ‘brutal’ would not only be superfluous but, in a news story, better left out; and 2) isn’t the Times (along with any news outlet that has failed to report these acts as torture) directly responsible in some way for inspiring the kind of response it received from readers [who objected to the term ‘brutal’]? If readers are not provided the facts—a) waterboarding is torture and b) torture is illegal—while Times editors are simultaneously ascribing arbitrary descriptors to it like ‘brutal’ or ‘harsh,’ then the Times is not only denying its readers the necessary information to understand the issue but this denial may also lead directly to accusations of bias.” He also notes that Jehl censored Shane’s story to eliminate the reference to the methods being “widely denounced as illegal torture,” and asks why Abramson discussed the matter with legal experts rather than determining if waterboarding, physical assaults, and other techniques do indeed qualify as torture under the Geneva Conventions, the Convention Against Torture (see October 21, 1994), and other binding laws and treaties. [Raw Story, 4/26/2009]

Entity Tags: Douglas Jehl, Central Intelligence Agency, Brad Jacobson, Clark Hoyt, Dean Baquet, Scott Shane, Convention Against Torture, Jill Abramson, Geneva Conventions, US Department of Justice, New York Times

Timeline Tags: Torture of US Captives

Senator and former presidential candidate John McCain (R-AZ), a strong opponent of torture (see July 24, 2005 and After, October 1, 2005, November 21, 2005, December 13, 2005, December 15, 2005, and April 20, 2009), says that the US must “move on” from the Bush era of torture and not investigate the Bush administration’s torture policies. McCain refuses to support Democratic calls to impeach former Justice Department official Jay Bybee, who authored several of the torture memos (see August 1, 2002 and August 1, 2002), even as he acknowledges Bybee broke the law. McCain says: “He falls into the same category as everybody else as far as giving very bad advice and misinterpreting, fundamentally, what the United States is all about, much less things like the Geneva Conventions. Look, under President Reagan we signed an agreement against torture. We were in violation of that.” McCain says that “no one has alleged, quote, wrongdoing” on the part of Bush officials such as Bybee, saying only that they gave “bad advice” to Bush and other senior officials. [Think Progress, 4/26/2009]

Entity Tags: John McCain, Bush administration (43), Jay S. Bybee

Timeline Tags: Torture of US Captives

Der Spiegel reports new evidence proving that the CIA ran a secret prison in Poland and tortured prisoners there. The prison is identified as the Polish military airbase of Stare Kiejkuty, about an hour’s drive north of the Szymany military airbase. One of the most well-known of the “high-value” prisoners kept there was accused 9/11 plotter Khalid Shaikh Mohammed, who was tortured (see March 7 - Mid-April, 2003) and waterboarded (see After March 7, 2003) in the facility. A Gulfstream N379P jet, known to Polish investigators as the “torture taxi,” landed at least five times at Szymany between February and July 2003. According to Der Spiegel, “Flight routes were manipulated and falsified for this purpose and, with the knowledge of the Polish government, the European aviation safety agency Eurocontrol was deliberately deceived.” A witness told the public prosecutor’s office in Warsaw of seeing people wearing handcuffs and blindfolds being led from the aircraft at Szymany, far from the control tower. The witness said it was always the same individuals and the same civilian vehicles that stood waiting on the landing field. Mohammed told delegates from the International Committee of the Red Cross (ICRC) that most of the group at the airfield wore ski masks, presumably to avoid being identified. “On arrival the transfer from the airport to the next place of detention took about one hour,” he told the ICRC. “I was transported sitting on the floor of a vehicle. I could see at one point that there was snow on the ground. Everybody was wearing black, with masks and army boots, like Planet-X people.” Robert Majewski, the Warsaw public prosecutor who took the witness statement cited above, has been investigating former Polish Prime Minister Leszek Miller’s government on allegations of abuse of office. One of the issues surrounding the Miller administration is its alleged secret cooperation with the CIA, and its alleged granting of free rein to the agency over the Stare Kiejkuty military base for its extraterritorial rendition program and torture interrogations. Majewski is also investigating whether the Polish intelligence agency, WSI, made 20 of its agents available to the CIA. Recently, two Polish journalists, Mariusz Kowalewski and Adam Krzykowski, have discovered flight record books from Szymany that had been declared lost. Based on these documents, and on a number of interviews with sources, the two journalists have put together a patchwork of evidence pointing to the CIA’s use of Stare Kiejkuty for secret rendition and torture purposes. They say that they lack a final piece of proof—that CIA interrogator Deuce Martinez, one of the primary interrogators of Mohammed, was in Poland at the time of Mohammed’s detention in Stare Kiejkuty. Rumors abound of Martinez’s presence, but Kowalewski and Krzykowski lack the evidence to prove it. Much of Kowalewski and Krzykowski’s reporting has been confirmed by a 2007 investigation conducted by the special investigator for the Council of Europe, Dick Marty. A WSI official told the Marty investigators, “The order to give the CIA everything they needed came from the very top, from the president,” meaning former President Aleksander Kwasniewski, who denies the allegation. The CIA has always denied any knowledge of, or involvement with, such a facility. [Der Spiegel (Hamburg), 4/27/2009]

Entity Tags: Khalid Shaikh Mohammed, Der Spiegel, Central Intelligence Agency, Aleksander Kwasniewski, Adam Krzykowski, Deuce Martinez, International Committee of the Red Cross, Dick Marty, Robert Majewski, Leszek Miller, Mariusz Kowalewski, Eurocontrol, Stare Kiejkuty, Wojskowe Sluzby Informacyjne

Timeline Tags: Torture of US Captives

Former Bush National Security Adviser and Secretary of State Condoleezza Rice, who has returned to Stanford University to teach political science and serve as a senior fellow at the university’s conservative Hoover Institute [Stanford University News, 1/28/2009] , refuses to take any responsibility for the Bush administration’s torture policies. All she ever did, she tells students, was “convey… the authorization of the administration” (see Late 2001-Early 2002, April 2002 and After, Mid-May, 2002, July 17, 2002, September or October 2002, Summer 2003, May 3, 2004, and April 9, 2008). However, Rice adds, since President Bush authorized the torture program, it was by definition legal, no matter what domestic law or international treaties stipulated. “The president instructed us that nothing we would do would be outside of our obligations, legal obligations under the Convention Against Torture” (see October 21, 1994), she says. “So that’s—and by the way, I didn’t authorize anything. I conveyed the authorization of the administration to the agency, that they had policy authorization, subject to the Justice Department’s clearance. That’s what I did.” Asked if waterboarding constitutes torture, Rice responds: “I just said, the United States was told, we were told, nothing that violates our obligations under the Convention Against Torture. And so by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture.” Ali Frick, a reporter with the progressive news Web site Think Progress, writes in response: “Rice is attempting to hide her central role in approving torture.… Rice’s opinion that a presidential authorization—‘by definition’—grants something legality is deeply disturbing. In fact, the United States—and its president—are bound by US statute and international treaties that ban the use of cruel, humiliating, degrading treatment, the infliction of suffering, and the attempt to extract coerced confessions. Memo to Rice: Bush may have been ‘the Decider,’ but he didn’t have the authority to make an illegal act magically legal.” [Think Progress, 4/30/2009] In the same conversation, Rice seems to say that al-Qaeda poses a greater threat to the US than did Nazi Germany, and again denies that the US ever tortured anyone. A student asks, “Even in World War II facing Nazi Germany, probably the greatest threat that America has ever faced—” and Rice interjects, “Uh, with all due respect, Nazi Germany never attacked the homeland of the United States.” “No, but they bombed our allies—” the student replies, and Rice once again interrupts: “No, just a second, just a second. Three thousand Americans died in the Twin Towers and the Pentagon [referring to the 9/11 attacks].” The student observes, “500,000 died in World War II—” to which Rice replies, “Fighting a war in Europe.” The student continues, ”—and yet we did not torture the prisoners of war.” Rice says, “We didn’t torture anybody here either.” [Think Progress, 4/30/2009]

Entity Tags: US Department of Justice, Bush administration (43), Ali Frick, Al-Qaeda, Convention Against Torture, George W. Bush, Condoleezza Rice

Timeline Tags: Torture of US Captives

Former Nixon White House counsel John Dean says that former Secretary of State Condoleezza Rice may have unwittingly admitted to being part of a criminal conspiracy in regards to the Bush administration’s torture policies. Rice recently told students at Stanford University that she did not authorize any torture policies, she merely forwarded the authorization for them from higher up (see April 28, 2009). Dean tells MSNBC talk show host Keith Olbermann that she may have admitted to a criminal conspiracy. Dean calls Rice’s comments “surprising,” and says she has mired herself in the possibility of legal proceedings. “She tried to say she didn’t authorize anything, then proceeded to say she did pass orders along to the CIA to engage in torture if it was legal by the standard of the Department of Justice,” Dean says. “This really puts her right in the middle of a common plan, as it’s known in international law, or a conspiracy, as it’s known in American law, and this indeed is a crime. If it indeed happened the way we think it did happen.… These kinds of statements are going to come back and be interesting to any investigator.” Dean says that President Obama will stand in violation of the Geneva Conventions if he refuses to prosecute those found responsible for the torture policies. “He is indeed in violation if the United States does not undertake investigation of this, or ultimately prosecution, if that’s necessary,” Dean says. “It’s not only the Geneva Convention, the Convention Against Torture (see October 21, 1994) also requires this. There are no exceptions with torture. There are no real things like ‘torture light.’ The world community I think is going to hold the United States responsible, and if we don’t proceed, somebody is going to proceed.” [Raw Story, 5/1/2009; MSNBC, 5/1/2009]

Entity Tags: Geneva Conventions, Barack Obama, Bush administration (43), John Dean, Condoleezza Rice, Keith Olbermann, Convention Against Torture

Timeline Tags: Torture of US Captives

The announcement that Supreme Court Justice David Souter is retiring is already sparking a tremendous fundraising effort among conservative opposition groups, according to the Congressional Quarterly. “This is a nuclear weapon for the conservatives out there,” says conservative fundraiser Dan Morgan. “When you do fundraising, there’s an emotional component in this, and boy the emotion is there magnified times 100.” President Obama is expected to choose a replacement for Souter who is somewhat left of center, a choice that will be portrayed by right-wing groups as a threat to their positions on abortion, gun rights, gay marriage, and property rights, among other “hot-button” social and legal issues (see May 26, 2009). The upshot: lots of money gathered to oppose Obama’s prospective nominee. “Although Souter may be a more difficult case to make as his voting record is center-left, it does open the door for discussion of who, and how left a replacement, President Obama may choose,” says veteran Republican fundraiser Linus Catignani. “It also gives clarity to the power of the presidency and generates lots of chatter regarding the fact that Obama may make up to four replacements in short order. That obviously paints a very scary picture for many conservatives.” Catignani says that when conservative Justices John Roberts and Samuel Alito (see September 29, 2005 and October 31, 2005 - February 1, 2006) were nominated, Republican fundraisers used them as touchstones for their efforts to gather money—that time in the interest of promoting and defending the nominees. Democrats used their nominations to raise funds in opposition, much as Republicans are doing now, and Democrats will use the nomination to raise funds in defense of Obama’s nominee. Souter’s replacement will energize and invigorate a flagging and dispirited conservative base, says former Democratic National Committee Chairman Steve Grossman. “This can be a catalyst properly handled that can get people back into a sense of stakeholdership.” It can also be used to energize Democrats to fund efforts to thwart the Republicans’ own efforts to derail the nomination. Morgan says: “The Supreme Court is great. That’s going to be mail, that’s going to be phone calls. The clients I work with are in meetings already. There are letters being written already.” [Congressional Quarterly, 5/1/2009]

Entity Tags: Linus Catignani, Barack Obama, David Souter, Sonia Sotomayor, Dan Morgan, Steve Grossman, US Supreme Court

Timeline Tags: Civil Liberties

New Republic legal correspondent Jeffrey Rosen, a law professor at George Washington University, writes an analysis of appeals court judge Sonia Sotomayor, considered by many to be a leading candidate to replace retiring Justice David Souter on the Supreme Court.
Rose from Poverty to Consideration for High Court - Rosen gives a brief biographical sketch of Sotomayor, whom he labels as a “compelling” candidate both for her legal accomplishments and her life story. Sotomayor is the daughter of poor Puerto Rican immigrants, grew up in the South Bronx, and graduated with high academic honors from Princeton and Yale. She has served as a prosecutor, a corporate litigator, and a judge. If nominated and confirmed, Sotomayor would be the Court’s first Hispanic member and only its third female member. She has the support of both New York senators, Democrats Charles Schumer and Kirsten Gillibrand.
Conflicting Opinions Largely from Anonymous Sources - Rosen notes that her former clerks praise her as “demanding but thoughtful” and “commit[ted] to legal fairness,” a “rule-bound pragmatist—very geared toward determining what the right answer is and what the law dictates, but her general approach is, unsurprisingly, influenced by her unique background.” Rosen quotes several anonymous sources—“nearly all… former law clerks… or former federal prosecutors in New York”—who, he says, question “her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.” According to one former law clerk, Sotomayor is “not that smart and kind of a bully on the bench,” egotistical, and “domineering.” In contrast, one of his named sources, fellow Second Circuit appeals court judge Jose Cabranes, said of her, “She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media.” Anonymous sources tell Rosen that Sotomayor is more apt to quibble with a colleague’s grammar and syntax rather than the focus of their legal arguments. Another former clerk praises Sotomayor for being tough-minded and “impressive.” Rosen admits that he has not read enough of Sotomayor’s opinions “to have a confident sense of them,” nor has he “talked to enough of Sotomayor’s detractors and supporters, to get a fully balanced picture of her strengths. It’s possible that the former clerks and former prosecutors I talked to have an incomplete picture of her abilities. But they’re not motivated by sour grapes or by ideological disagreement—they’d like the most intellectually powerful and politically effective liberal justice possible. And they think that Sotomayor, although personally and professionally impressive, may not meet that demanding standard.” Rosen concludes that President Obama would be taking an unnecessary “gamble” by nominating her to the high court. [New Republic, 5/4/2009]
Repercussions of Analysis - Rosen’s column triggers several demeaning characterizations of Sotomayor in the conservative press (see May 4, 2009 and May 5, 2009), characterizations that will intensify when she is nominated for the Court (see May 26, 2009). His use of anonymous sources to base his negative coverage will be repudiated by a number of critics (see May 5, 2009).

Entity Tags: Charles Schumer, Kirsten Gillibrand, Sonia Sotomayor, US Supreme Court, Jose Cabranes, Jeffrey Rosen

Timeline Tags: Civil Liberties, Domestic Propaganda

Atlantic columnist Ta-Nehisi Coates lambasts law professor Jeffrey Rosen for his recent analysis of prospective Supreme Court nominee Sonia Sotomayor (see May 4, 2009). Citing Rosen’s line, “I haven’t read enough of Sotomayor’s opinions to have a confident sense of them, nor have I talked to enough of Sotomayor’s detractors and supporters, to get a fully balanced picture of her strengths,” Coates responds: “Rosen is attacking Sotomayor’s ability to do the necessary intellectual heavy-lifting, while explicitly neglecting to do any of his own. In this instance, his piece reads like a burglar’s brief against rampant criminality. Authored mid-robbery, no less.” She also slams her Atlantic colleague Marc Ambinder’s criticisms of Sotomayor (see May 5, 2009), noting, “You don’t get to be the ‘respectable intellectual center’ and then practice your craft in the gossip-laden, ignorant muck.” [Atlantic Monthly, 5/5/2009] Former civil litigator Glenn Greenwald joins Coates in criticizing the early attacks on Sotomayor. Greenwald calls Rosen’s reliance on anonymous sources to attack Sotomayor’s character and professional conduct “shoddy, irresponsible, and… intellectually irresponsible,” and cites several instances where Rosen’s reporting has been countered by sources willing to go on the record. Greenwald writes of his amazement at how quickly Sotomayor has been “transformed in conventional wisdom, largely as a result of Rosen’s piece, into a stupid, shrill, out-of-her-depth Puerto Rican woman who is being considered for the Supreme Court solely due to anti-merit, affirmative action reasons.” Greenwald writes that he twice faced Sotomayor in court, and found her “extremely perceptive, smart, shrewd, and intellectually insightful.” She could be forceful, “at times unpleasantly so,” he recalls, and remembers being dressed down by her for a “substantial procedural mistake” he committed, but notes that such behavior by judges “is the opposite of uncommon.” Greenwald writes that behavior usually characterized as “tough,” “forceful,” and “authoritative” by white males is often reworked into characterizations of “domineering” and “egotistical” when the same behaviors are exhibited by women. Greenwald also notes that Rosen was one of the strongest media voices in favor of the nomination of conservative jurist John Roberts (see September 29, 2005) to the Court. [Salon, 5/5/2009] Less than a month later, Sotomayor will be nominated to the Court (see May 26, 2009).

Entity Tags: Glenn Greenwald, Sonia Sotomayor, Ta-Nehisi Coates, US Supreme Court, Marc Ambinder, Jeffrey Rosen

Timeline Tags: Domestic Propaganda

In an interview on CBS’s Face the Nation, former Vice President Dick Cheney acknowledges that President Bush knew of the torture program as performed under his administration. However, he again says that in his view the practices employed by the US on enemy detainees did not constitute torture (see December 15, 2008). He also reiterates earlier claims that by dismantling Bush-era policies on torture and warrantless wiretapping, the Obama administration is making the country more vulnerable to terrorist attacks (see January 22, 2009, January 22, 2009, January 23, 2009, February 2009, March 17, 2009, March 29, 2009, April 20, 2009, April 21, 2009, April 22, 2009, April 22, 2009, April 22, 2009, April 23, 2009, and April 26, 2009), and reiterates his claim that classified documents will prove that torture was effective in producing actionable intelligence (see April 20, 2009).
Claims Documents Prove Efficacy of Torture - Cheney says: “One of the things that I did six weeks ago was I made a request that two memos that I personally know of, written by the CIA, that lay out the successes of those policies and point out in considerable detail all of—all that we were able to achieve by virtue of those policies, that those memos be released, be made public (see April 22, 2009). The administration has released legal opinions out of the Office of Legal Counsel. They don’t have any qualms at all about putting things out that can be used to be critical of the Bush administration policies. But when you’ve got memos out there that show precisely how much was achieved and how lives were saved as a result of these policies, they won’t release those. At least, they haven’t yet.” Host Bob Schieffer notes that Attorney General Eric Holder has denied any knowledge of such documents, and that other administration officials have said that torture provided little useful information. Cheney responds: “I say they did. Four former directors of the Central Intelligence Agency say they did, bipartisan basis. Release the memos. And we can look and see for yourself what was produced.” Cheney says the memos specifically discuss “different attack planning that was under way and how it was stopped. It talks [sic] about how the volume of intelligence reports that were produced from that.… What it shows is that overwhelmingly, the process we had in place produced from certain key individuals, such as Khalid Shaikh Mohammed and Abu Zubaida (see After March 7, 2003), two of the three who were waterboarded.… Once we went through that process, he [Mohammed] produced vast quantities of invaluable information about al-Qaeda” (see August 6, 2007). Opponents of Bush torture policies, Cheney says, are “prepared to sacrifice American lives rather than run an intelligent interrogation program that would provide us the information we need to protect America.”
Bush Knew of Torture Program - Cheney also acknowledges that then-President Bush knew of the torture program, saying: “I certainly, yes, have every reason to believe he knew—he knew a great deal about the program. He basically authorized it. I mean, this was a presidential-level decision. And the decision went to the president. He signed off on it.” Cheney concludes by saying that he would be willing to testify before Congress concerning the torture program and his administration’s handling of its war on terror, though he refuses to commit to testifying under oath. [Congressional Quarterly, 5/10/2009; CBS News, 5/10/2009 pdf file]

Entity Tags: Khalid Shaikh Mohammed, Abu Zubaida, George W. Bush, Obama administration, Richard (“Dick”) Cheney

Timeline Tags: Torture of US Captives

Tom Goldstein, a veteran lawyer who maintains the Supreme Court-focused, nonpartisan “SCOTUSblog,” writes that Supreme Court nominee Sonia Sotomayor (see May 26, 2009) will be the focus of caricatures and character attacks from the right, just as Justices Samuel Alito (see October 31, 2005 - February 1, 2006) and John Roberts (see September 29, 2005) were from the left. Goldstein’s assessment is echoed by ABC’s “The Note,” an influential daily political newsletter. Goldstein, who has argued cases before the Court over 20 times, writes that barring some serious revelation of ethical violations, Sotomayor is almost guaranteed to be confirmed by the Senate, but before that, she will be subjected to attacks from what he calls “committed ideologues.” Few “mainstream Republican politicians will vocally join the criticism,” he predicts. In a political sense, it would be disastrous for Republicans to mount serious opposition to a Hispanic woman, or Latina. “To Hispanics, the nomination would be an absolutely historic landmark,” Goldstein writes. “It really is impossible to overstate its significance. The achievement of a lifetime appointment at the absolute highest levels of the government is a profound event for that community, which in turn is a vital electoral group now and in the future.” Such attacks would comprise “a strategy that risks exacting a very significant political cost among Hispanics and independent voters generally, assuming that the attacks aren’t backed up with considerable substance.” The attacks will come from any of four major areas, Goldstein predicts. [Tom Goldstein, 5/26/2009]
Attacks Led by Conservatives outside Congress - ABC’s Jonathan Karl agrees. He writes: “At the start, Senate Republicans will likely make innocuous statements about the need to thoroughly review her record, but make no mistake, GOP leaders, with a big assist from outside conservative groups, will wage a vigorous campaign against this nomination.… Senate Republicans don’t expect to defeat the Sotomayor nomination. But they hope to raise enough questions about the nomination to make it a tough vote for Democratic senators in more conservative states. They will also use the confirmation battle as an opportunity to motivate a demoralized Republican base” (see May 1, 2009). [ABC News, 5/26/2009]
Attacks on Sotomayor's Intellect - The first series of attacks, Goldstein writes, will focus on the claim that she “is not smart enough for the job.” He writes that this is a powerful line of argument with an equally strong potential for backlash, so it will be handled carefully and obliquely. Unfortunately for this position, he writes, “Sotomayor is in fact extremely intelligent.” She graduated at the top of her class at Princeton, and her judicial opinions “are thorough, well-reasoned, and clearly written. Nothing suggests she isn’t the match of the other Justices.” Goldstein’s predictions are reflected in a number of public columns and commentaries (see May 26, 2009, May 26, 2009, May 29, 2009, and May 31, 2009).
'Liberal Ideologue and Judicial Activist' - The second line of attack will be purely ideological, focusing on the claim that she is a “liberal ideologue” and a “judicial activist.” While Sotomayor would be on the left of the Court, Goldstein writes, she is hardly a radical liberal. She is very similar to the man she is slated to replace, Justice David Souter, as a moderate, centrist liberal. Her appellate opinions as reviewed by the Court put her squarely with the left-center wing of the current Court. Karl writes, “They will call her an ‘activist’ judge intent on making law from the bench, not interpreting law.” Their predictions are reflected in a number of public columns and commentaries (see May 26, 2009, May 26, 2009, May 26, 2009, May 26, 2009, May 28, 2009, May 28, 2009, May 29, 2009, May 29, 2009, and June 3, 2009).
Intolerant of Positions Contrary to Her Own - The third wave of attack will claim, Goldstein writes, that she is intolerant of positions with which she disagrees. Proponents of this line of attack will focus on a decision she wrote that upheld affirmative action laws to the detriment of white firefighters, on a panel appearance in which she acknowledged that appellate judges sometimes make public policy, and a speech where she talked about the role her gender and ethnicity played in her decision-making. They will also focus, Karl notes, on a 2002 speech where she said the sex and ethnic origin of a judge can affect their decisions. Sotomayor said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life” (see October 26, 2001). “These reeds are too thin for that characterization to take hold,” Goldstein writes. The public “is easily able to accept a judge’s recognition of the lawmaking effects of her decisions and the influences of her background. There just isn’t any remotely persuasive evidence that Judge Sotomayor acts lawlessly or anything of the sort.” Goldstein’s predictions are reflected in a number of public columns and commentaries (see May 26, 2009, May 26, 2009, May 29, 2009, and June 3, 2009). [ABC News, 5/26/2009; Tom Goldstein, 5/26/2009]
Personality Characteristics - The fourth wave of attacks will characterize her as, Goldstein writes, “gruff and impersonable,” based on some excerpts from oral arguments and a few anonymous criticisms voiced in the “Almanac of the Federal Judiciary.” Sotomayor can easily quash these attacks with a few well-turned statements in the public eye. From his own experiences arguing cases before the Court, Goldstein believes Sotomayor is similar in demeanor and temperment to Justices Roberts, Souter, and Antonin Scalia. Goldstein’s predictions are reflected in a number of public columns and commentaries (see May 27, 2009. May 29, 2009, and June 3, 2009).
Missed Line of Attack - Neither Goldstein nor Karl write about the direct attacks on Sotomayor’s race and gender that some conservatives will launch (see May 26, 2009, May 26, 2009, May 27, 2009, May 28, 2009, May 28, 2009, May 28, 2009. May 29, 2009, June 2, 2009, June 3, 2009, and June 5, 2009). Goldstein’s own analysis of Sotomayor’s rulings will thoroughly disprove the allegations of racial bias (see May 29, 2009).
Conclusion - Goldstein concludes, “All in all… her easy confirmation seems assured.” [Tom Goldstein, 5/26/2009]

Entity Tags: David Souter, Sonia Sotomayor, Jonathan Karl, US Supreme Court, Thomas Goldstein, ABC News

Timeline Tags: Domestic Propaganda

Salon columnist Glenn Greenwald notes that in 2006, conservative Supreme Court nominee Samuel Alito (see October 31, 2005 - February 1, 2006) made remarks about his ethnic identity influencing his decisions from the bench that are strikingly similar to those made in 2001 by Supreme Court nominee Sonia Sotomayor (see October 26, 2001 and May 26, 2009). Sotomayor is being called a “racist” by conservatives based on her remarks (see May 26, 2009, May 26, 2009, May 27, 2009, and May 28, 2009). In 2006, as Greenwald notes, Alito told the Senate Judiciary Committee: “[W]hen a case comes before me involving, let’s say, someone who is an immigrant—and we get an awful lot of immigration cases and naturalization cases—I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position. And so it’s my job to apply the law. It’s not my job to change the law or to bend the law to achieve any result. But when I look at those cases, I have to say to myself, and I do say to myself, ‘You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country.‘… When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.” Greenwald writes, “Anyone who is objecting now to Sotomayor’s alleged ‘empathy’ problem but who supported Sam Alito and never objected to this sort of thing ought to have their motives questioned (and the same is true for someone who claims that a person who overcame great odds to graduate at the top of their class at Princeton, graduate Yale Law School, and then spent time as a prosecutor, corporate lawyer, district court judge, and appellate court judge must have been chosen due to ‘identity politics’).” [Washington Post, 1/11/2006; Salon, 5/27/2009]

Entity Tags: Samuel Alito, Glenn Greenwald, US Supreme Court, Sonia Sotomayor, Senate Judiciary Committee

Timeline Tags: Domestic Propaganda

Former White House political director Karl Rove continues his attacks on Supreme Court nominee Sonia Sotomayor (see May 26, 2009). In a column for the Wall Street Journal, Rove echoes former Justice Department official John Yoo in claiming that the Obama administration chose “empathy” over capability in Sotomayor’s selection (see May 26, 2009). Rove goes one step further than Yoo in equating Sotomayor’s “empathy” with “liberal judicial activism.” “‘Empathy’ is the latest code word for liberal activism,” Rove writes, “for treating the Constitution as malleable clay to be kneaded and molded in whatever form justices want. It represents an expansive view of the judiciary in which courts create policy that couldn’t pass the legislative branch or, if it did, would generate voter backlash.” He accuses Sotomayor, and indirectly President Obama, of a “readiness to discard the rule of law whenever emotion moves them.” He also accuses Obama of attempting to “placate Hispanic groups who’d complained of his failure to appoint more high profile Latinos to his administration.… Mr. Obama also hopes to score political points as GOP senators oppose a Latina. Being able to jam opponents is a favorite Chicago political pastime.” Rove advises Republicans to use Sotomayor’s nomination as an opportunity to “stress their support for judges who strictly interpret the Constitution and apply the law as written.” He notes: “A majority of the public is with the GOP on opposing liberal activist judges. There is something in our political DNA that wants impartial umpires who apply the rules, regardless of who thereby wins or loses.” [Wall Street Journal, 5/28/2009] Hours after his attack column is printed, Rove tells a Fox News audience that Republicans need to treat Sotomayor with “respect” and criticize her over her “philosophy,” not her background. [Think Progress, 5/29/2009]

Entity Tags: Obama administration, Barack Obama, Karl C. Rove, US Supreme Court, Sonia Sotomayor

Timeline Tags: Domestic Propaganda

Republican National Committee chairman Michael Steele, guest-hosting William Bennett’s radio show, says that Republicans should not attack Supreme Court nominee Sonia Sotomayor (see May 26, 2009) over her race (see May 26, 2009, May 26, 2009, May 27, 2009, May 28, 2009, May 28, 2009, and May 28, 2009). Doing so risks damaging the Republican Party’s image, he says. Steele, who is an African-American, warns that the “liberal media,” and particularly MSNBC, will use the racially motivated attacks to paint Republicans as bigots. “MSNBC will rip everything we have to say up into shreds,” he says. “I’m excited that a Hispanic woman is in this position,” he says. Republicans should stop “slammin’ and rammin’” on Sotomayor, and instead “acknowledge” the “historic aspect” of the pick and make a “cogent, articulate argument” against her for purely substantive reasons. Steele says the party doesn’t want to “get painted as a party that’s against the first Hispanic woman” picked for the Supreme Court. Democrats have made similar attacks on conservative candidates in the past, Steele avers, and says that the “liberal media” gave Democrats an unfair advantage in such controversies. Steele does not mention two of the loudest voices in the racially-based attacks against Sotomayor, former House Speaker Newt Gingrich and conservative radio host Rush Limbaugh. Washington Post columnist Greg Sargent writes: “It’s a reminder of Steele’s predicament: He knows how badly these attacks are damaging the party and how neatly they play into the hands of Dems, but he can’t call out the leading figures launching those attacks, because that risks infuriating the base and feeding the meme that the GOP is hopelessly divided.” [Plum Line, 5/29/2009] Two weeks before, while hosting Bennett’s show, Steele had attacked Sotomayor’s intellect and personality, calling her “not a bell ringer” and “abrasive.” [Think Progress, 5/29/2009] A week later, while hosting Bennett’s show, Steele will say, “God help you if you’re a white male coming before her bench” (see June 5, 2009).

Entity Tags: Republican Party, Sonia Sotomayor, MSNBC, Greg Sargent, US Supreme Court, Michael Steele

Timeline Tags: Domestic Propaganda

Right-wing pundit Pat Buchanan continues to attack Supreme Court nominee Sonia Sotomayor (see May 26, 2009), this time during an appearance on C-SPAN’s Washington Journal. Buchanan continues his allegations that Sotomayor is an “affirmative action nominee” (see May 28, 2009), and mocks her recent discussion of her difficulties with the English language: Sotomayor told a New York Times reporter that during her first years in college, she honed her English skills by reading children’s books, practiced with lower-level grammar books, and worked with a professor who provided her tutoring in the language. Buchanan says in reference to the article: “Well I, again in that Saturday piece, she went to Princeton. She graduated first in her class it said. But she herself said she read, basically classic children’s books to read and learn the language and she read basic English grammars and she got help from tutors. I think that, I mean if you’re, frankly if you’re in college and you’re working on Pinocchio or on the troll under the bridge, I don’t think that’s college work.” The article did not characterize her outside, self-directed remedial work with English as “college work.” Amanda Terkel, a reporter for left-leaning Think Progress, will note: “Buchanan has long claimed that Hispanic immigrants are resistant to learning English and has said that it would be easier for them to ‘assimilate’ if they did so.… So basically, Buchanan yells when Hispanics are allegedly unwilling to learn English. However, when they make an attempt to do so, he mocks them as being dumb.” [New York Times, 5/30/2009; Think Progress, 6/1/2009]

Entity Tags: US Supreme Court, Sonia Sotomayor, Amanda Terkel, Patrick Buchanan

Timeline Tags: Domestic Propaganda

Former George H. W. Bush speechwriter Peggy Noonan joins the ranks of Republicans (see May 28-31, 2009, May 29, 2009, and May 29, 2009) asking for a more moderate and less inflammatory tone in recent criticisms of Supreme Court nominee Sonia Sotomayor (see May 26, 2009 and May 26, 2009). Republicans should “play grown-up,” she advises, in opposing the Sotomayor nomination, and notes that her background—disadvantaged, Hispanic, female—makes her dangerous to oppose too vehemently: “Politically she’s like a beautiful doll containing a canister of poison gas: Break her and you die.” Noonan continues: “New York is proud of her; I’m proud of our country and grateful at its insistence, in a time when some say the American dream is dead, that it most certainly is not. The dream is: You can come from any place or condition, any walk of life, and rise to the top, taking your people with you, in your heart and theirs. Maybe that’s what they mean by empathy: Where you come from enters you, and you bring it with you as you rise. But if that’s what they mean, then we’re all empathetic. We’re the most fluid society in human history, but no one ever leaves their zip code in America, we all take it with us. It’s part of our pride. And it’s not bad, it’s good.” Noonan calls Republicans who launch virulent attacks on her racial heritage or gender “idiots,” and writes that instead of “exciting the base,” as one Republican strategist has said the attacks will do, “How about excit[ing] a moderate, or interest[ing] an independent? How about gain[ing] the attention of people who aren’t already on your side? The base is plenty excited already, as you know if you’ve ever read a comment thread on a conservative blog.… They don’t need to be revved, they’re already revved. Newt Gingrich twitters that Judge Sotomayor is a racist (see May 27, 2009). Does anyone believe that? He should rest his dancing thumbs, stop trying to position himself as the choice and voice of the base in 2012, and think.… The choice for Republicans isn’t between ‘attack’ and ‘roll over.’ It’s broader than that, and more interesting. There’s a new and fresh opportunity here for Republicans in the Senate to be serious, and, in their seriousness, to be seen and understood in a new light.” [Wall Street Journal, 6/1/2009]

Entity Tags: US Supreme Court, Newt Gingrich, Sonia Sotomayor, Peggy Noonan

Timeline Tags: Domestic Propaganda

A doctored photo of Sotomayor issued by the Council of Conservative Citizens. The robe and hood have been added to the photo, as has the ‘raised-fist’ logo.A doctored photo of Sotomayor issued by the Council of Conservative Citizens. The robe and hood have been added to the photo, as has the ‘raised-fist’ logo. [Source: Council of Conservative Citizens / Think Progress]The Council of Conservative Citizens (CofCC), a pro-segregation group that the Southern Poverty Law Center has called “brazenly racist,” posts a doctored photograph of Supreme Court nominee Sonia Sotomayor (see May 26, 2009) on its Web site. The altered photograph depicts Sotomayor wearing what appears to be a robe and hood similar to those worn by members of the Ku Klux Klan. The robe has a raised fist and the words “La Raza.” Sotomayor is a member of the National Council of La Raza (NCLR), a Hispanic civil rights organization which some conservatives have falsely claimed is a racist organization (see May 28, 2009 and May 29, 2009). An NCLR spokesman confirms that the logo in the photograph is not used on any basis by the organization. [Think Progress, 6/2/2009]

Entity Tags: National Council of La Raza, Council of Conservative Citizens, US Supreme Court, Sonia Sotomayor, Southern Poverty Law Center

Timeline Tags: Domestic Propaganda

After meeting with Supreme Court nominee Sonia Sotomayor (see May 26, 2009), Senator Lindsey Graham (R-SC) says he has fundamental questions about her judicial philosophy and temperament, and adds he will likely not vote to confirm her to the high court. “I was very direct,” he tells reporters of his conversation with Sotomayor. “I have to decide how to play this game, quite frankly. If I use the same standard that Senator [Barack] Obama used, then I would not vote for you, quite frankly.” Graham is referring to votes cast by then-Senator Obama against Justices John Roberts (see September 29, 2005) and Samuel Alito (see October 31, 2005 - February 1, 2006) in which Graham asserts that Obama voted against them on ideological grounds. “He used a standard, I think, that makes it nearly impossible for a person from the opposite party to vote for the nominee,” Graham says. Many political observers feel that Graham is something of a bellwether of Republican sentiment; a former judge advocate general officer, Graham is considered one of the better legal minds in the party, and his opinion carries great weight with his colleagues. Other Republicans may follow his lead in coming out in public opposition to the nominee. Graham says he asked Sotomayor about her “wise Latina” comment (see October 26, 2001), but refuses to say how she responded. Graham also says he has questions about her temperament, saying that while she was friendly in the meeting, he cannot ignore other lawyers’ negative assessments of her personality (see May 4, 2009). “I think she does have the intellectual capacity to do the job,” Graham says. “But there’s a character problem. There’s a temperament problem that they—during the time they’ve had to be a judge, that they were more of an advocate than an impartial decider of the law. And I’ve got to find out, in my own mind” about her temperament. [Politico, 6/3/2009] On Fox News, Graham contradicts his earlier assessment, saying that Sotomayor has “sterling character.” [Think Progress, 6/3/2009]

Entity Tags: US Supreme Court, Lindsey Graham, Sonia Sotomayor

Timeline Tags: Domestic Propaganda

Republican National Committee chairman Michael Steele implies that Supreme Court nominee Sonia Sotomayor (see May 26, 2009) has racist tendencies, a week after urging fellow Republicans to stop “slammin’ and rammin’” Sotomayor over the issue of race and deal with her nomination on the issues (see May 29, 2009). While guest-hosting William Bennett’s radio show, Steele discusses criticisms that have been made of Sotomayor. “[T]he comments that she made that have been played up about, you know, the Latina woman being a better judge than the white male is something that she has said on numerous occasions,” Steele tells a caller (see October 26, 2001). “So this was not just the one and only time it was said. They’ve now found other evidences and other speeches… that she has made mention of this, this fact that her ethnicity, that her cultural background puts her in a different position as a judge to judge your case.… And God help you if you’re a white male coming before her bench.” A recent analysis of Sotomayor’s decisions as a judge in race-based cases proves that she does not discriminate against white plaintiffs (see May 29, 2009). [Think Progress, 6/5/2009] Four days later, Steele will defend his remarks. “Well, that’s not inflammatory,” he tells a CNN audience. “It’s based off of what—the inference that she left and what she said. You know, if you have a judge, where you have a situation where you have—you’re going before a trier of fact, and the trier of fact is on record as saying that this individual’s background experience is better positioned to make a decision than someone else, that gives one pause. And so my view of it was, in looking at it, you’re now segregating out white men by your comments. So, God help you if you’re a white male. If you’re seeking justice, this may not be the bench you want to go before.” [Think Progress, 6/10/2009]

Entity Tags: Republican National Committee, US Supreme Court, Sonia Sotomayor, Michael Steele

Timeline Tags: Domestic Propaganda

Former First Lady Laura Bush says some positive things about Supreme Court nominee Sonia Sotomayor (see May 26, 2009). On ABC’s Good Morning America, Bush says: “I think she sounds like a very interesting and good nominee.… As a woman, I’m proud there might be another woman on the Court. So we’ll see what happens, but I wish her well.” [Think Progress, 6/8/2009] Bush’s comments stand in contrast to some conservatives’ gender-based attacks on Sotomayor (see May 26, 2009, May 28, 2009, and June 5, 2009).

Entity Tags: US Supreme Court, Sonia Sotomayor, Laura Bush

Timeline Tags: Domestic Propaganda

Journalist Daphne Eviatar writes that during the eight years of the Bush presidency, prosecutions and enforcement of the 1994 Freedom of Access to Clinic Entrances Act (FACE—see May 1994) “cratered,” with Justice Department officials refusing to prosecute or sometimes even investigate complaints of vandalism, harassment, and assault. After the recent murder of abortion provider Dr. George Tiller (see May 31, 2009), Eviatar and the Washington Independent obtained government data showing that enforcement of the FACE law, and other federal laws designed to protect abortion providers and clinics, declined by 75 percent during the Bush presidency. Between 1994 and 1999, when President Clinton was in office, the Justice Department filed 17 complaints under the FACE Act. Between 2001 and 2009, when President Bush was in office, the Justice Department only filed a single case. Tiller’s own clinic was vandalized numerous times, but complaints against the actions were ignored by the department. Statistics provided by the National Abortion Federation (NAF) show that over 3,200 acts of violence against abortion providers in the US and Canada were committed between 2000 and 2008, and the organization says the number of actual incidents was probably “much higher.” The number does not include threats, vandalism, and harassment. NAF statistics show that at least 17 cases of “extreme” violence against abortion providers in the US were reported, including arson, stabbings, bombings, and fake anthrax mailings. But the Bush Justice Department only prosecuted 11 individuals for these attacks. The two highest-profile anti-abortion prosecutions were those of anthrax mailer Clayton Waagner (see 1997-December 2001) and bomber Eric Rudolph (see April 14, 2005). However, none of Waagner’s or Rudolph’s associates in the extremist organization Army of God (see 1982) were ever prosecuted as accessories to the two activists’ crimes. Neither was the Army of God ever investigated as a potential domestic terrorist organization (see Early 1980s). [Washington Independent, 6/12/2009]

Entity Tags: National Abortion Federation, Bush administration (43), Clayton Waagner, Clinton administration, Daphne Eviatar, Eric Robert Rudolph, US Department of Justice, George Tiller, Freedom of Access to Clinic Entrances Act

Timeline Tags: US Domestic Terrorism

The CIA releases heavily redacted documents containing statements by Guantanamo detainees concerning their allegations of torture and abuse at the hands of CIA personnel. The documents are released as part of a Freedom of Information Act (FOIA) lawsuit filed by the American Civil Liberties Union (ACLU). The lawsuit seeks uncensored transcripts from Combatant Status Review Tribunals (CSRTs) that determine if prisoners held by the Defense Department at Guantanamo qualify as “enemy combatants.” Previously released versions were redacted so heavily as to contain almost no information about abuse allegations; the current versions, while still heavily redacted, contain some new information. ACLU attorney Ben Wizner, the lead attorney on the FOIA lawsuit, says: “The documents released today provide further evidence of brutal torture and abuse in the CIA’s interrogation program and demonstrate beyond doubt that this information has been suppressed solely to avoid embarrassment and growing demands for accountability. There is no legitimate basis for the Obama administration’s continued refusal to disclose allegations of detainee abuse, and we will return to court to seek the full release of these documents.” The ACLU press release notes, “The newly unredacted information includes statements from the CSRTs of former CIA detainees,” and includes quotes from alleged 9/11 mastermind Khalid Shaikh Mohammed (see Shortly After February 29 or March 1, 2003); alleged high-level al-Qaeda operative Abu Zubaida (see Mid-May 2002 and After); and accused terrorists Abd al-Rahim al-Nashiri (see (November 2002)) and Majid Khan (see March 10-April 15, 2007). These statements include details about their treatment, which the ACLU refers to as “torture and coercion”:
Abu Zubaida - “After months of suffering and torture, physically and mentally, they did not care about my injuries that they inflicted to my eye, to my stomach, to my bladder, and my left thigh and my reproductive organs. They didn’t care that I almost died from these injuries. Doctors told me that I nearly died four times.… They say ‘this in your diary.’ They say ‘see you want to make operation against America.’ I say no, the idea is different. They say no, torturing, torturing. I say ‘okay, I do. I was decide to make operation.’”
Abd al-Rahim al-Nashiri - “[And, they used to] drown me in water.”
Khalid Shaikh Mohammed - “This is what I understand he [a CIA interrogator] told me: you are not American and you are not on American soil. So you cannot ask about the Constitution.”
Majid Khan - “In the end, any classified information you have is through… agencies who physically and mentally tortured me.” [American Civil Liberties Union, 6/15/2009]

Entity Tags: American Civil Liberties Union, Abd al-Rahim al-Nashiri, Abu Zubaida, Ben Wizner, Central Intelligence Agency, Khalid Shaikh Mohammed, Majid Khan, Obama administration, US Department of Defense

Timeline Tags: Torture of US Captives

English-only advocates Pat Buchanan and white nationalist Peter Brimelow standing under misspelled banner.English-only advocates Pat Buchanan and white nationalist Peter Brimelow standing under misspelled banner. [Source: Think Progress (.org)]Right-wing pundit Pat Buchanan and his organization The American Cause host a conference to discuss how Republicans can regain a political majority. The conference is co-sponsored by a number of white nationalist and white advocacy groups. The conference features a panel discussion supporting English-only initiatives as a way to attract “working-class white Democrats” to the Republican Party, and in the process ridicules Supreme Court nominee Sonia Sotomayor (see May 26, 2009) for her use of children’s books to study English while she was in college (see May 31, 2009). The panelists also suggest that, without English as the official language of the US, President Obama would force Americans to speak Spanish. The conference’s English-only advocates apparently do not notice that the banner hanging over the festivities prominently misspells the word “conference” as “conferenece.” [Media Matters, 6/11/2009; Think Progress, 6/22/2009]

Entity Tags: Republican Party, Patrick Buchanan, The American Cause, US Supreme Court, Sonia Sotomayor

Timeline Tags: Domestic Propaganda

The US Supreme Court says it will schedule a hearing on the controversial “Citizens United” case, Citizens United v. Federal Election Commission (see March 15, 2009), for September 2009, in an unusual second presentation before the Court (see September 9, 2009). According to the justices, the lawyers for both Citizens United (CU) and the federal government should argue whether previous Court rulings upholding federal election law should be overturned based on First Amendment grounds. Both sides are asked to argue whether the Court should overrule the 1990 Austin decision (see March 27, 1990), which upheld restrictions on corporate spending on political campaigns, and/or the 2003 McConnell decision (see December 10, 2003), which upheld the bulk of the 2002 Bipartisan Campaign Reform Act (BCRA—see March 27, 2002). Law professor Nathaniel Persily says of the directive: “The Court is poised to reverse longstanding precedents concerning the rights of corporations to participate in politics. The only reason to ask for reargument on this is if they’re going to overturn Austin and McConnell.” The New York Times observes, “The Roberts court [referring to the Supreme Court under Chief Justice John Roberts] has struck down every campaign finance regulation to reach it, and it seems to have a majority prepared to do more.” Previous lower court rulings have found that CU’s attempt to air a film attacking presidential candidate Hillary Clinton (D-NY) was an attempt to engage in “electioneering,” and thus came under the restrictions of the McCain-Feingold campaign law (see March 27, 2002). The film was financed in part by donations from corporations and individuals whom CU has refused to identify. [United Press International, 6/29/2009; New York Times, 6/29/2009] CU previously attempted to have its case heard by the Court, but the Court sent the case back to a federal appeals court, which ruled in favor of the Federal Election Commission (FEC) and against CU (see March 24, 2008). Law professor Richard Hasen agrees with Persily and the Times that the decision to reargue the case a second time indicates that the Court’s conservative majority is prepared to overturn both Austin and McConnell, and allow essentially unlimited corporate spending in federal elections. Hasen writes that if the Court does indeed rule in favor of unlimited corporate spending, it will be in response to the fundraising advantage currently enjoyed by Democratic presidential candidate Barack Obama (D-IL) over his Republican counterpart, John McCain (R-AZ). [Slate, 6/29/2009] The decision will indeed overturn both Austin and McConnell, and gut most of the BCRA (see January 21, 2010).

Entity Tags: Hillary Clinton, Bipartisan Campaign Reform Act of 2002, Barack Obama, Federal Election Commission, US Supreme Court, New York Times, John G. Roberts, Jr, Richard L. Hasen, Nathaniel Persily, John McCain, Citizens United

Timeline Tags: Civil Liberties

The cover of Mark Klein’s ‘Wiring Up the Big Brother Machine… and Fighting It.’The cover of Mark Klein’s ‘Wiring Up the Big Brother Machine… and Fighting It.’ [Source: BookSurge / aLibris (.com)]Former AT&T technician Mark Klein self-publishes his book, Wiring Up the Big Brother Machine… and Fighting It. In his acknowledgements, Klein writes that he chose to self-publish (through BookSurge, a pay-to-publish venue) because “[t]he big publishers never called me,” and the single small publishing house that offered to publish his book added “an unacceptable requirement to cut core material.” Klein based his book on his experiences as an AT&T engineer at the telecom giant’s San Francisco facility, where he primarily worked with AT&T’s Internet service. In 2002 and 2003, Klein witnessed the construction of of a “secret room,” a facility within the facility that was used by the National Security Agency (NSA) to gather billions of email, telephone, VoIP (voice over Internet Protocol), and text messages, most of which were sent by ordinary Americans. The NSA did its electronic surveillance, Klein writes, secretly and without court warrants. Klein describes himself as “wiring up the Big Brother machine,” and was so concerned about the potential illegality and constitutional violations of the NSA’s actions (with AT&T’s active complicity) that he retained a number of non-classified documents proving the extent of the communications “vacuuming” being done. Klein later used those documents to warn a number of reporters, Congressional members, and judges of what he considered a horrific breach of Americans’ right to privacy. [Klein, 2009, pp. 9-11, 21-24, 33, 35, 38, 40] In 2007, Klein described his job with the firm as “basically to keep the systems going. I worked at AT&T for 22 and a half years. My job was basically to keep the systems going. They were computer systems, network communication systems, Internet equipment, Voice over Internet [Protocol (VoIP)] equipment. I tested circuits long distance across the country. That was my job: to keep the network up.” He explained why he chose to become a “whistleblower:” “Because I remember the last time this happened.… I did my share of anti-war marches when that was an active thing back in the ‘60s, and I remember the violations and traffic transgressions that the government pulled back then for a war that turned out to be wrong, and a lot of innocent people got killed over it. And I’m seeing all this happening again, only worse. When the [NSA] got caught in the ‘70s doing domestic spying, it was a big scandal, and that’s why Congress passed the FISA [Foreign Intelligence Surveillance Act] law, as you know, to supposedly take care of that (see 1978). So I remember all that. And the only way any law is worth anything is if there’s a memory so that people can say: ‘Wait a minute. This happened before.’ And you’ve got to step forward and say: ‘I remember this. This is the same bad thing happening again, and there should be a halt to it.’ And I’m a little bit of that institutional memory in the country; that’s all.” [PBS Frontline, 5/15/2007]

Entity Tags: National Security Agency, AT&T, BookSurge, Mark Klein

Timeline Tags: Civil Liberties

Rachel Maddow and Pat Buchanan, during their discussion of Sonia Sotomayor’s nomination to the Supreme Court.Rachel Maddow and Pat Buchanan, during their discussion of Sonia Sotomayor’s nomination to the Supreme Court. [Source: MSNBC / Crooks and Liars]As the Senate readies to vote for or against Judge Sonia Sotomayor for the Supreme Court (see August 6, 2009), conservative commentator and author Pat Buchanan attempts to explain why he feels Sotomayor should not be confirmed.
Affirmative Action Accusation - Buchanan, interviewed by MSNBC’s progressive host Rachel Maddow, has accused Sotomayor of being an “affirmative action” selection for the bench (see May 28, 2009, May 31, 2009, June 12, 2009, and June 20, 2009) who uses her position to “discriminate against white males.” As evidence of his claim, he says: “I do believe she’s an affirmative action appointment by the president of the United States. He eliminated everyone but four women and then he picked the Hispanic.” Maddow asks him to define affirmative action, and Buchanan replies, “Affirmative action is to increase diversity by discriminating against white males.” After citing four court cases, he adds: “[A]ffirmative action is basically reverse discrimination against white males and it’s as wrong as discrimination against black females and Hispanics and others. And that’s why I oppose it.”
White People Built America, Buchanan Says - In her turn, Maddow asks, “Why do you think is that of the 110 Supreme Court justices we’ve had in this country, 108 of them have been white?” to which Buchanan responds: “Well, I think white men were 100 percent of the people that wrote the Constitution, 100 percent of the people that signed the Declaration of Independence, 100 percent of people who died at Gettysburg and Vicksburg. Probably close to 100 percent of the people who died at Normandy. This has been a country built basically by white folks in this country who are 90 percent of the entire nation—in 1960, when I was growing up, Rachel—and the other 10 percent were African-American who had been discriminated against. That’s why.” Maddow asks if he believes “there are 108 of 110 white Supreme Court justices because white people essentially deserve to have 99.5 percent of those positions? That there’s nothing—that doesn’t reflect any sort of barrier to those positions by people who aren’t white. You think that’s what they’ve—you think that’s just purely on the basis of what white people have deserved to get?”
Back to Affirmative Action - Buchanan shifts his argument and asserts that the Supreme Court should have the nine finest legal minds and scholars, regardless of race or gender. “But this one doesn’t have that. She was appointed because she’s a Latina, a Hispanic, and a woman.” Maddow counters with Sotomayor’s extensive experience, saying: “She is also the judicial nominee who has more judging experience than any judge has gone up in, say, in the past, I don’t know, what is it, 70 years? She has been an appellate court judge of some distinction for a lot longer than [Chief Justice John] Roberts was, [Justice Samuel] Alito was. I mean, it’s not like she was—she was picked out… she was like picked out of the minor leagues and brought up here, Pat.” Buchanan returns to his affirmative action argument, noting that Sotomayor agreed that she was granted admission to Princeton University because of the program. Buchanan goes farther, accusing her of receiving preferential treatment for all of her accomplishments, including her stint on the Yale Law Review and her appointment to the federal bench. Maddow, battling through Buchanan’s attempts to interrupt her, defends the affirmative action program, saying: “[W]hat our country needs is to be able to choose from the largest possible pool of talent in order to be able to pick the people who are going to have to function at the highest levels so that our country can compete and our country to do all the hard things we need do, I would hope that you would see that picking 108 out of 110 white justices… to the Supreme Court means that other people aren’t actually being appropriately considered. And the reason that you have affirmative action is that you recognize that the fact that people were discriminated against for hundreds of years in this country means that you sort of gained the system, unless you give other people a leg up.” She continues, “But, Pat, for you to argue that there’s no basis on which the United States benefits… from having Hispanics be among the people who we choose the best and brightest from defies belief.… The idea that you think we’ll best serve by only choosing among 99.9 percent white people.… [W]hen I look at the United States Supreme Court and I see 108 out of 110 white people, I see 108 out of 110 men. I’m—I don’t look at that and think, ‘God, white guys are naturally better at this type of work than other people who aren’t getting these jobs.’ I don’t think that way.… I want to hear you—I would love to hear your answer as to whether or not you think that is what explains it, too. Because, I think, what the more obvious explanation is, is that you have to be a white guy in order to get considered for these jobs and has been true since the dawn of time in this country.… That’s starting to break up now so that we can tap a bigger pool of talent. You should be happy about that for your country, Pat.” Buchanan counters that whites “are victims of this evil affirmative action policy which says in effect that everybody’s covered by the 14th Amendment and the civil rights laws unless you’re a white male and your parents and ancestors came from Europe. Then we can discriminate against you. That’s what I am against.”
Stirring 'Up Racial Animus' - Countering Buchanan’s accusations of reverse racism, Maddow says: “Pat, I couldn’t disagree with you more. I tribute—I credit you sticking to your gun. I think you’re absolutely wrong about this and I think that by advocating that the Republican Party try to stir up racial animus among white voters.… You’re dating yourself.” Buchanan says that the government should “defend the legitimate rights of white working-class folks who are the victims of discrimination, because that’s the right thing to do and because it’s the politically right thing to do.” Maddow concludes: “A lot of things divide us, Pat. Race is one of those. But there’s a lot of other ways in which we just gratify as a country, and for you to privilege race and say that what we really need to make sure we tap, politically, is white people’s racial grievances, you’re playing with fire and you’re dating yourself. You’re living in the 1950s, Pat.” [MSNBC, 7/17/2009]

Entity Tags: Samuel Alito, Patrick Buchanan, John G. Roberts, Jr, Rachel Maddow, Sonia Sotomayor, US Supreme Court

Timeline Tags: Domestic Propaganda

Melissa Harris-Lacewell.Melissa Harris-Lacewell. [Source: Melissa Harris-Lacewell]Melissa Harris-Lacewell, professor of politics and African-American studies at Princeton, attempts to explain the increasingly overt and virulent racism being promulgated by some conservative lawmakers, talk show hosts, and anti-health care protesters (see February 1, 2008, August 1, 2008 and After, August 4, 2008, August 19, 2008, November 18, 2008, February 24-26, 2009, April 7-8, 2009, July 24, 2009, July 25, 2009, and July 28, 2009). “[A]s a political scientist, you always want to start with the assumption that a political party, whatever choices it’s making are trying to seek office,” she says. She says one must assume that the racist rhetoric “is somehow a strategy of the right or strategy of an element of the GOP to somehow gain office either in the mid-term elections or more long term for the presidential race.” However, that is not the entirety of the reasons behind the rhetoric: “[T]he other part, I think, that I have maybe not been thinking about as carefully is that when we think about the history of race in America, sometimes we have to put aside the notion of strategy and just embrace the reality that race in this country has often brought out irrational anger, fear, anxiety, emotionalism. So it is possible that this is not actually a GOP or a conservative strategy but is instead really kind of an emotional tantrum on the part of some members of the conservative wing who really just are floundering as they look at a world that is changing so dramatically around questions of race.” MSNBC host Rachel Maddow expands on Harris-Lacewell’s point, saying: “I was with you on it being an irrational tantrum until I started to see the same very specific tactic used in very different venues about very different subjects, this idea of the person who is not white being the problem racist, being used against [Supreme Court nominee Sonia] Sotomayor (see May 26, 2009, May 26, 2009, May 28, 2009, May 28, 2009, May 29, 2009, May 29, 2009, June 5, 2009, and June 12, 2009)… being used against the president now, inexplicably, unrelated to any policy issue but just as a free floating critique of the president. And it does make me wonder about this as an overt political strategy.” Harris-Lacewell replies: “President Obama paused in the middle of the primary race to speak in Philadelphia about the question of race in America. And he set up sort of two possibilities, black anger rooted in a history of African-American inequality and white resentment rooted in a sense of kind of a loss of racial privilege. Now, I think in many ways it’s a very accurate assessment of sort of the ways that blacks and whites, not completely and not perfectly, but often perceive things quite differently. So I spent the month in New Orleans and Hurricane Katrina is a perfect example of this. Everybody in the country was mad but African-Americans saw the failures of the federal government around Katrina as a race issue. White Americans who were still angry about the failures of the government saw it primarily as a bureaucratic issue rather than a race issue. So here, you have these two groups with very different perspectives. Now, that made all the difference in being able to make policy. So I think that they’re hoping that these differences in how blacks and whites often see the world can be a perfect kind of wedge to use on health care, to use on education, to use on a wide variety of issues that, in fact, really—if we don’t fix health care, it is bad for all Americans. But if we can somehow kind of suggest that the president is just trying to do things that are good for black people and bad for white people, then it opens up that kind of possibility of anxiety, distrust, and different perceptions.” [MSNBC, 7/30/2009]

Entity Tags: Rachel Maddow, Melissa Harris-Perry

Timeline Tags: Domestic Propaganda, 2010 Elections

Mary Patrice Brown.Mary Patrice Brown. [Source: Allgov (.com)]The Justice Department’s Office of Professional Responsibility (OPR) recommends reversing a Bush-era policy and reopening nearly a dozen prisoner abuse investigations, mostly in Iraq and Afghanistan. The decision could potentially expose CIA employees and contractors to prosecution for crimes involving brutalizing and torturing prisoners in US custody, particularly as some detainees died in custody and others were physically and mentally abused. The OPR makes the recommendation in early August, but the information is not reported in the media until later in the month. The decision comes as the Justice Department is ready to disclose new information on prisoner abuse from a 2004 report by the CIA’s inspector general that has never before been released (see May 7, 2004). The Bush-era Justice Department chose not to pursue investigations into any of the allegations, deciding that none of them warranted further inquiry. However, Attorney General Eric Holder reconsidered that decision after he saw the allegations and the accompanying evidence, much of which is contained in the 2004 CIA report. The OPR gives Holder additional leverage to reopen the investigations. The OPR report is primarily authored by the office’s new chief, Mary Patrice Brown, a federal prosecutor picked to replace the office’s former head, H. Marshall Jarrett, who is working elsewhere in the Justice Department. One case under review is that of Iraqi citizen Manadel al-Jamadi, who died in 2003 at Abu Ghraib prison (see Between 4:30 a.m. and 5:30 a.m. November 4, 2003) after being captured by a team of Navy SEALs. Prosecutors believe he received his fatal injuries from his captors, but lawyers for the SEALs deny the charge. During President Bush’s tenure, the Justice Department responded to inquiries about the incidents from Democratic lawmakers with little more than summaries of the numbers of cases under scrutiny, and provided virtually no details about individual cases or explanations as to why the department chose not to prosecute. [New York Times, 8/24/2009]

Entity Tags: H. Marshall Jarrett, Central Intelligence Agency, Eric Holder, US Department of Justice, Manadel al-Jamadi, Mary Patrice Brown, Office of Professional Responsibility

Timeline Tags: Torture of US Captives

Max Pappas, a senior official with the conservative lobbying firm FreedomWorks (see April 14, 2009), openly takes credit for his firm ratcheting up disruptive behavior at “town halls” across the nation devoted to discussion of health care reform (see June 30, 2009, July 6, 2009, July 25, 2009, July 27, 2009, July 27, 2009, July 31, 2009, August 1, 2009, August 1, 2009, August 2, 2009, August 3, 2009, August 3, 2009, August 3, 2009, August 3, 2009, August 4, 2009, August 4, 2009, August 5, 2009, August 5, 2009, August 6, 2009, August 6, 2009, and August 6-8, 2009). Pappas is interviewed by MSNBC’s Chris Matthews, who says that FreedomWorks is “blowing them [town hall meetings] apart.” Pappas agrees, saying, “Yes, just like we blew up—” before Matthews talks over his response. Pappas says that FreedomWorks only has about 18 paid employees, and does most of its work over the Internet, working with 400,000 online members (referring to the number of people on its e-mail lists). “We… send them information about when the town halls are, give them briefings on the health care reform plans.” The Washington Post’s Greg Sargent writes: “[T]here’s nothing wrong with FreedomWorks or any other group doing this. But if industry-funded groups are pumping up turnout at town hall meetings, it makes it perfectly fair game for reform proponents to argue that the industry is trying to manipulate perceptions of public opinion for the sake of its bottom line.” [Plum Line, 8/7/2009] The next day, Pappas appears on C-SPAN, and a caller claiming to be a Republican veteran asks him “to tell these people to wrap it down.” The caller says: “We Republicans already have the image of being owned by corporate America. Now we’re getting the image of being owned by wild red neck America.” Pappas responds: “We don’t have the power to control how many people turn out or how they behave there. All we really do is facilitate their participation by letting people know when these town halls are and giving them information about the issues that are going to be discussed. The passions are so deep about this issue that we can’t send out an email that says ‘calm down.’” Another caller claims to be from the Council of Conservative Citizens (CCC), a white power and outspokenly racist organization (see June 2, 2009), and praises Pappas and FreedomWorks, calling him “a true patriot.” Pappas asks the caller to join the organization. [Think Progress, 8/7/2009]

Entity Tags: Max Pappas, Chris Matthews, Council of Conservative Citizens, FreedomWorks, Greg Sargent

Timeline Tags: US Health Care, Domestic Propaganda, 2010 Elections

Malcolm Nance, the former master instructor and chief of training at the Navy’s Survival Evasion Resistance and Escape (SERE) School who now serves as a consultant on counterterrorism and terrorism intelligence for the US government, makes a cogent point about “breaking” interrogation subjects. Nance is interviewed by MSNBC’s Rachel Maddow, who asks: “One of the other things that I think is a term that sort of gets bandied around by civilians who don’t have experience in these things when we talk about, not only the politics of interrogation, but also the utility of interrogation, is this idea of somebody being broken, a prisoner, the subject of an interrogation being a broken person. And that was described by political actors about interrogation techniques as sort of the goal, about what the idea was to—what the object was of what we wanted to be doing to al-Qaeda prisoners. Does breaking a person in interrogation terms make sense if what you’re trying to do is get real information out of them?” Nance replies, “The process of ‘breaking,’ quote-unquote, a prisoner is not something interrogators do. Interrogators really don’t want to break you down as a human being and take away all of your ability to think and reason and give a coherent answer. That was something that was developed by totalitarian and hostile regimes who saw that a confession is what they wanted out of you. They didn’t care whether you had done it or not. A confession is what they needed out of you, and to get that confession, what they would do is break you physically, psychologically, and mentally so that you could get into a state of learned helplessness and you would comply no matter what they would say. Now, this killed hundreds, if not thousands, of American service members in Korea, World War II, and Vietnam. And this is not something which any real interrogator would want to try because, of course, at that point, you are not getting information. You are just getting compliance. And any idiot can comply and that makes no intelligence whatsoever.” Nance and Maddow note that former SERE psychologists Bruce Jessen and James Mitchell, the two SERE psychologists who designed the US torture program (see Late 2001-Mid-March 2002, January 2002 and After, Late March through Early June, 2002, April - June 2002, Mid-April 2002, April 16, 2002, Between Mid-April and Mid-May 2002, Mid-May 2002 and After, June 2002, July 2002, April 2009, and April 30, 2009), were experienced in the methodologies of “breaking” prisoners and not in extracting useful information. [MSNBC, 8/13/2009]

Entity Tags: Bruce Jessen, Rachel Maddow, Malcolm Nance, James Mitchell

Timeline Tags: Torture of US Captives

According to ABC News, the Justice Department’s release of a 2004 report by the CIA’s inspector general (see May 7, 2004 and August 24, 2009) is preceded by a “profanity-laced screaming match” between CIA Director Leon Panetta and White House officials. This apparently produces disquiet among White House officials regarding Panetta. According to ABC News, some White House officials are “worrying about the direction of its newly-appoint[ed] intelligence team.” Some reports say that Panetta has already threatened to resign once, and White House officials are discussing “a possible shake-up of top national security officials.” According to one unnamed “senior adviser to [President] Obama on intelligence matters,” “You can expect a larger than normal turnover in the next year.” And another former senior intelligence official predicts, “Leon will be leaving.” But a White House spokesman, Denis McDonough, says the reports of Panetta’s threatened resignation and a potential “shake-up” of top intelligence and national security officials are “inaccurate.” Both Panetta and CIA spokesman George Little say reports of his threatened resignation are “absolutely untrue”; the spokesman says of the alleged tirade that Panetta is known to use “salty language.” Former counterterrorism specialist and current ABC News consultant Richard Clarke says: “It would be a shame if such as talented a Washington hand as Panetta were to leave after one year. It takes that long for any senior bureaucrat to begin to understand what needs to get done and how to do it. The CIA needs some stability.” [ABC News, 8/24/2009] Newsweek’s Mark Hosenball says that Panetta has been sending mixed messages. “Panetta had been kind of ambiguous, at least in terms of his public statements and even his private messages, as to whether he’s strongly opposed to release of documents like this or not,” he says. “Some cases it’s looked like he’s been in favor of releasing documents like this; in other cases, it’s looked like he’s been against it. I think he’s trying to straddle the issue here. I mean, certainly, previous CIA directors like General Mike Hayden and George Tenet have strongly expressed the view that this stuff shouldn’t have been released. Panetta hasn’t been quite as strong in saying that publicly, anyway.” [PBS, 8/24/2009]

Entity Tags: Mark Hosenball, Central Intelligence Agency, Denis McDonough, Leon Panetta, Obama administration, Richard A. Clarke, George Little

Timeline Tags: Torture of US Captives

Cover of CIA OIG report, with redactions.Cover of CIA OIG report, with redactions. [Source: CIA / New York Times]A 2004 report by the CIA’s inspector general (IG) on torture (see May 7, 2004) is released to the public, after months of speculation as to its contents. The CIA opposed the release of the report for years, arguing that the release would demoralize its personnel and make it more difficult for the agency to do its job. The report’s release is triggered by a federal judge’s ruling in response to a lawsuit filed by the American Civil Liberties Union (ACLU). The report, authored by former Inspector General John Helgerson, is heavily redacted, but the portions released to the public include a number of illegal and ethically questionable tactics used by US interrogators against detainees. Some of those tactics include the use of handguns, power drills, threats, smoke, and mock executions. Many of the techniques used against detainees were carried out without authorization from higher officials, and the Justice Department is reopening investigations into a number of the most serious allegations (see First Half of August 2009). The report says that the CIA’s efforts to provide “systematic, clear, and timely guidance” to interrogators were “inadequate at first” and that that failure largely coincided with the most significant incidents involving the unauthorized coercion of detainees, but as guidelines from the Justice Department accumulated over several years, oversight “improved considerably.” In the words of the Washington Post, “the report pointed to ongoing tensions between interrogators in the field and officials at the CIA Counterterrorism Center as to when detainees were compliant and when the use of ‘enhanced interrogation techniques’ was appropriate.” [MSNBC, 8/24/2009; Washington Post, 8/24/2009] In a statement, Helgerson says, “The most important findings of the review related to basic systemic issues: had management controls been established; were necessary laws, regulations, and guidelines in place and understood; had staff officers and contractors been adequately trained; and had they discharged their responsibilities properly?” [Washington Post, 8/24/2009] Newsweek reporter Michael Isikoff says that the “report was generated at the beginning by agency officials within themselves who had deep concerns about what was going on. I was struck. One officer is quoted in this report saying that he’s concerned that he might one day—agency officers might one day end up on some ‘wanted list’ to appear before the world court for war crimes stemming from these activities. It was agents—it was the concerns about this came from within the agency. That’s what generated this report.”
Recommendations Redacted - Isikoff notes that at least half of the report is redacted, including the IG’s recommendations, and says, “I’m told the worst stuff is in those blacked out passages, which means we still don’t know the full story of this program.” [MSNBC, 8/25/2009] The report contains 10 recommendations for action on the CIA’s part, but all of them are redacted. [McClatchy, 8/24/2009] Helgerson states his regret that so much of the report is redacted. “The essence of the report is expressed in the Conclusions and Recommendations,” he says. “I am disappointed that the government did not release even a redacted version of the Recommendations, which described a number of corrective actions that needed to be taken.” [Washington Post, 8/24/2009] Isikoff’s Newsweek colleague, Mark Hosenball, says he believes much of the redacted information has to do with “renditions”: detainees transferred to foreign countries “and abused there.” [PBS, 8/24/2009]
Detailing 'Crime Scene[s]' - Author and reporter Jane Mayer says she believes the report, “in essence, [details] a crime scene. It’s very hard to get away from the fact that things like death threats and mock executions are specifically identified as torture under the Convention Against Torture and, therefore, are illegal, and they’re considered very major crimes. So the problem for the Obama administration, which inherited this report and the question about what to do about it, is that it’s a red flag to any prosecutor. It’s very hard to ignore this, when you’ve taken an oath of office that says you’re going to execute the laws and uphold the Constitution. So they’ve got to somehow do something with this. I was interviewing Larry [Laurence] Tribe, a law professor, who said, you know, it’s hard to do nothing about this when you see it.” Reporter David Ignatius notes that an earlier review by Justice Department prosecutors found that no one at the CIA could be prosecuted for crimes based on the findings of the report. However, that may no longer be true. “[I]t is interesting and troubling to people at the CIA that something that was already decided not prosecutable is now maybe prosecutable,” he says. Mayer notes that during the Bush administration, possible prosecutions were short-circuited by political appointees such as then-US Attorney Paul McNulty, “who was very much a political player, who actually wound up having to resign later in the Bush administration for other political problems.” [PBS, 8/24/2009]
Federal Prosecutor Appointed - In part as a result of reviewing the CIA report, Attorney General Eric Holder names a special prosecutor to determine if the CIA or its hired contractors broke any laws in interrogating detainees (see August 24, 2009).
Reactions - CIA Director Leon Panetta issues a statement that supports the agency’s efforts while avoiding defending torture or abuse. In his statement, Panetta writes that he is not “eager to enter the debate, already politicized, over the ultimate utility of the agency’s past detention and interrogation effort.” He says the program produced crucial intelligence but adds that use of the harsh methods “will remain a legitimate area of dispute.” Overall, Panetta says, the agency is committed to “moving forward” and not spending large amounts of time reflecting on past practices. Senator Sheldon Whitehouse (D-RI) calls the report, and the concurrent appointment of special prosecutor John Durham to investigate torture allegations (see August 24, 2009), “a great relief, a great moment for America as a country.” He continues: “We’ve finally seen the rule of law brought forward in a way that it is clear and direct on this situation, which has been so sort of poisoned with personalities and politics and propaganda. It’s a first kind of clear, bright light, and I couldn’t be happier, couldn’t be more relieved.” [New York Times, 8/24/2009; Central Intelligence Agency, 8/24/2009; MSNBC, 8/25/2009] The ACLU’s Jameel Jaffer says, “The report underscores the need for a comprehensive criminal investigation that reaches not just the interrogators who exceeded authority but the senior officials who authorized torture and the Justice Department lawyers who facilitated it.” [Washington Post, 8/24/2009] Joanne Mariner, the terrorism and counterterrorism program director at Human Rights Watch, says: “The CIA inspector general’s report provides compelling official confirmation that the CIA committed serious crimes. A full criminal investigation into these crimes, and who authorized them, is absolutely necessary.” [Human Rights Watch, 8/24/2009]

Entity Tags: Jane Mayer, Central Intelligence Agency, Bush administration (43), John Durham, David Ignatius, Jameel Jaffer, Joanne Mariner, Eric Holder, US Department of Justice, American Civil Liberties Union, Paul J. McNulty, Sheldon Whitehouse, Laurence Tribe, John Helgerson, Mark Hosenball, Leon Panetta, National Counterterrorism Center, Obama administration, Michael Isikoff

Timeline Tags: Torture of US Captives

The second round of arguments in the Citizens United v. Federal Election Commission case (see January 10-16, 2008, March 24, 2008, March 15, 2009, and June 29, 2009) is heard by the US Supreme Court. The first round of arguments, which unexpectedly focused on an unplanned examination of government censorship, ended in a 5-4 split, with the majority of conservative justices readying a decision to essentially gut the entire body of federal campaign finance law in the name of the First Amendment (see March 27, 1990, March 27, 2002, and December 10, 2003), but an angry dissent by Justice David Souter that accused Chief Justice John Roberts of failing to follow the procedures of the Court in rendering the opinion prompted Roberts to temporarily withdraw the opinion and offer a rare second argument (see May 14, 2012). Newly appointed Solicitor General Elena Kagan argues her first case before the Court. Citizens United, the plaintiff, is represented by former Bush administration Solicitor General Theodore Olson. Olson, a veteran of Court arguments, quickly discerns from the new round of “Questions Presented” that the Court is prepared to not only find in the plaintiff’s favor, but to use the case to render a broad verdict against campaign finance law as a whole. Olson argues cautiously, not wanting to extend the case farther than the Court may desire. The four minority liberal justices, knowing the case is lost, try their best in their questioning to raise awareness in the public once news reports of the arguments are made public. One of those justices, Ruth Bader Ginsburg, asks: “Mr. Olson, are you taking the position that there is no difference” between the First Amendment rights of a corporation and those of an individual? “A corporation, after all, is not endowed by its creator with inalienable rights. So is there any distinction that Congress could draw between corporations and natural human beings for purposes of campaign finance?” Olson replies, “What the Court has said in the First Amendment context… over and over again is that corporations are persons entitled to protection under the First Amendment” (see January 30, 1976, April 26, 1978, June 25, 2007, and June 26, 2008). Ginsburg follows up by asking, “Would that include today’s mega-corporations, where many of the investors may be foreign individuals or entities?” Olson replies, “The Court in the past has made no distinction based upon the nature of the entity that might own a share of a corporation.” Kagan then takes her turn, and begins: “Mr. Chief Justice, and may it please the Court, I have three very quick points to make about the government position. The first is that this issue has a long history. For over a hundred years, Congress has made a judgment that corporations must be subject to special rules when they participate in elections, and this Court has never questioned that judgment.” She begins to make her second point before Justice Antonin Scalia, one of the conservative majority, interrupts her. In 2012, author and reporter Jeffrey Toobin will write that Kagan almost certainly knows hers is a legal “suicide mission,” and can only hope that her arguments may sway the Court to narrow its decision and leave some of the existing body of campaign finance law intact. She tells Roberts later in the questioning period, “Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses, if it has to lose, the answer is yes.” Justice John Paul Stevens, the most senior of the liberal minority, attempts to assist Kagan in making her argument, suggesting that the Court should content itself with a narrow ruling, perhaps creating an exception in the McCain-Feingold law (see March 27, 2002) for the plaintiff’s documentary (see January 10-16, 2008) or for “ads that are financed exclusively by individuals even though they are sponsored by a corporation.” Kagan agrees with Stevens’s proposal. Stevens then says: “Nobody has explained why that wouldn’t be a proper solution, not nearly as drastic. Why is that not the wisest narrow solution of the problem before us?” Kagan, with help from Ginsburg, undoes some of the damage done by Deputy Solicitor General Malcolm Stewart during the first argument, where he inadvertently gave the conservative justices the “censorship” argument by which they could justify a broader verdict. Ginsburg asks: “May I ask you one question that was highlighted in the prior argument, and that was if Congress could say no TV and radio ads, could it also say no newspaper ads, no campaign biographies? Last time, the answer was yes, Congress could, but it didn’t. Is that still the government’s answer?” Kagan replies: “The government’s answer has changed, Justice Ginsburg. We took the Court’s own reaction to some of those other hypotheticals very seriously. We went back, we considered the matter carefully.” Unlike Stewart, Kagan specifically says that the government cannot ban books. But the censorship argument remains. After the arguments, the justices render the same verdict: a 5-4 split favoring Citizens United. Roberts, Scalia, and Justices Samuel Alito, Anthony Kennedy, and Clarence Thomas vote in the majority, while Ginsburg, Stevens, and Justices Stephen Breyer and Sonia Sotomayor vote in the minority. The second round of questioning, with its much broader scope, gives Roberts and his conservative colleagues the justification they need to render a broad verdict that would gut existing campaign finance law (see January 21, 2010). [New Yorker, 5/21/2012]

Entity Tags: Elena Kagan, US Supreme Court, Citizens United, Antonin Scalia, Anthony Kennedy, Theodore (“Ted”) Olson, David Souter, Stephen Breyer, Samuel Alito, John G. Roberts, Jr, Jeffrey Toobin, Federal Election Commission, Sonia Sotomayor, John Paul Stevens, Ruth Bader Ginsburg, Malcolm Stewart, Clarence Thomas

Timeline Tags: Civil Liberties

Seven former directors of the CIA urge President Obama to end the investigation of claims that the CIA tortured detainees to obtain intelligence (see August 24, 2009). The investigation was triggered by the release of an internal CIA report from 2004 (see August 24, 2009). The directors say that all the cases in the 2004 report have already been adequately investigated, and to reopen those investigations would make it difficult for intelligence agents to believe they can safely follow legal guidance. In a letter signed by the seven former directors, they write: “Attorney General Holder’s decision to re-open the criminal investigation creates an atmosphere of continuous jeopardy for those whose cases the Department of Justice had previously declined to prosecute. Those men and women who undertake difficult intelligence assignments in the aftermath of an attack such as September 11 must believe there is permanence in the legal rules that govern their actions.… [T]his approach will seriously damage the willingness of many other intelligence officers to take risks to protect the country.” The letter is signed by former CIA directors Michael Hayden, Porter Goss, George Tenet, John Deutch, James Woolsey, William Webster, and James Schlesinger. Current CIA Director Leon Panetta opposed the investigation, but says that he will cooperate with it (see Before August 24, 2009). [Fox News, 9/18/2009]
ACLU: Letter 'Self-Serving' and Wrong - The American Civil Liberties Union’s Jameel Jaffer calls the letter “self-serving,” writing: “Attorney General Holder initiated a criminal investigation because the available evidence shows that prisoners were abused and tortured in CIA custody. The suggestion that President Obama should order Attorney General Holder to abort the investigation betrays a misunderstanding of the role of the attorney general as well as the relationship between the attorney general and the president. Where there is evidence of criminal conduct, the attorney general has not just the authority but the duty to investigate. The attorney general is the people’s lawyer, not the president’s lawyer, and it would be profoundly inappropriate for President Obama to interfere with his work. The attorney general’s investigation should be allowed to proceed without interference, and it certainly should not be derailed by the self-serving protests of former CIA officials who oversaw the very crimes that are being investigated. If there is a problem with the unfolding criminal investigation, it is that its focus is too narrow. There is abundant evidence that torture was authorized at the highest levels of the Bush administration, and the Justice Department’s investigation should be broad enough to encompass Bush administration lawyers and senior officials—including the CIA officials—who authorized torture.” [TPM Muckraker, 9/18/2009]
Justice Department Responds - The Justice Department counters the letter with its own statement: “The attorney general works closely with the men and the women of intelligence community to keep the American people safe and he does not believe their commitment to conduct that important work will waver in any way. Given the recommendation from the Office of Professional Responsibility as well as other available information, he believed the appropriate course of action was to ask John Durham to conduct a preliminary review. That review will be narrowly focused and will be conducted by a career prosecutor who has shown an ability to handle cases involving classified information. Durham has not been appointed as a special prosecutor; he will be supervised by senior managers at the [Justice] Department. The attorney general’s decision to order a preliminary review into this matter was made in line with his duty to examine the facts and to follow the law. As he has made clear, the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.” [Washington Independent, 9/18/2009]

Entity Tags: Jameel Jaffer, George J. Tenet, Central Intelligence Agency, Barack Obama, William H. Webster, US Department of Justice, Office of Professional Responsibility, Eric Holder, Porter J. Goss, John Deutch, James R. Schlesinger, Leon Panetta, Michael Hayden, James Woolsey

Timeline Tags: Torture of US Captives

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