Archive for February 14th, 2009

Administration seeks delay in release of Bybee torture memos

With the Justice Department Office of Legal Counsel torture memos again in the spotlight, the Obama administration is seeking to delay release of three of the still-secret memos:

Obama DOJ Delays Responding to Request for Key OLC Memos Re Torture and Interrogation Policies

By Daphne Eviatar

The Obama administration, under pressure to turn over key memos written by the Justice Department’s Office of Legal Counsel, has asked the federal judge in New York for another 90 days to consider its position on a Freedom of Information Act case brought by a coalition of civil liberties advocates.  But the judge may not be inclined to grant the request.

As I reported earlier, the three memos at issue were written by then-OLC director Steven Bradbury and reportedly authorized abusive interrogations of suspected terrorists and decided that such extreme tactics would not violate the law. The Bush administration repeatedly refused to turn them over, but given President Obama’s promises to open government and increase disclosure under FOIA, the Justice Department now is under considerable pressure to change its position and release the documents, which could be critical to any future investigations or prosecutions of Bush officials.

The New York Times reported in October 2007 that the memos provided “explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures.” These did not, the memos concluded, amount to “cruel, inhuman or degrading treatment” — which would have been banned by international law, as well as a bill Congress was then considering.

The American Civil Liberties Union, which sued for the memos along with several other organizations, argues the memos don’t fall under an exception to FOIA because they constitute adopted policy, not confidential legal advice. Although the ACLU agreed to give the Justice Department some additional time to respond to the request, it argued in court this week that 90 days is too long.  The case has already been going on for more than five years.

“The Obama administration deserves credit for its disavowal of torture and for the commitment it has made to transparency, but the public has waited long enough for the disclosure of these memos,” said Jameel Jaffer, Director of the ACLU’s National Security Project, in a statement released today.

“There is a public debate taking place right now about the role of the CIA going forward and about accountability for the abuses of the last eight years. The immediate release of the memos would allow the public to participate more meaningfully in that debate. While we applaud the administration for its promise of transparency, it’s now time to make good on that promise.”

On Friday, Judge Hellerstein ordered both sides to appear in his court next Wednesday to discuss how long a delay is warranted. “I take that as a good sign,” Jaffer told me Friday. “But we’ll see what happens on Wednesday.”

February 14th, 2009

Justice investigation of Yoo-Bybee torture memos almost out

Newsweek reports that the long awaited Justice Department investigation report of the writing of the Yoo-Bybee torture memo is almost out and, apparently, it’s a doozy. There could be referals to bar associations. Also, the use of these Office of Legal Counsel memos in torture defenses will be significantly weakened if the process that produced te memos is found to be invalid:

A Torture Report Could Spell Big Trouble For Bush Lawyers

By Michael Isikoff

An internal Justice Department report on the conduct of senior lawyers who approved waterboarding and other harsh interrogation tactics is causing anxiety among former Bush administration officials. H. Marshall Jarrett, chief of the department’s ethics watchdog unit, the Office of Professional Responsibility (OPR), confirmed last year he was investigating whether the legal advice in crucial interrogation memos “was consistent with the professional standards that apply to Department of Justice attorneys.” According to two knowledgeable sources who asked not to be identified discussing sensitive matters, a draft of the report was submitted in the final weeks of the Bush administration. It sharply criticized the legal work of two former top officials—Jay Bybee and John Yoo—as well as that of Steven Bradbury, who was chief of the Office of Legal Counsel (OLC) at the time the report was submitted, the sources said. (Bybee, Yoo and Bradbury did not respond to multiple requests for comment.)

But then–Attorney General Michael Mukasey and his deputy, Mark Filip, strongly objected to the draft, according to the sources. Filip wanted the report to include responses from all three principals, said one of the sources, a former top Bush administration lawyer. (Mukasey could not be reached; his former chief of staff did not respond to requests for comment. Filip also did not return a phone message.) OPR is now seeking to include the responses before a final version is presented to Attorney General Eric Holder Jr. “The matter is under review,” said Justice spokesman Matthew Miller.

If Holder accepts the OPR findings, the report could be forwarded to state bar associations for possible disciplinary action. But some former Bush officials are furious about the OPR’s initial findings and question the premise of the probe. “OPR is not competent to judge [the opinions by Justice attorneys]. They’re not constitutional scholars,” said the former Bush lawyer. Mukasey, in speeches before he left, decried the second-guessing of Justice lawyers who, acting under “almost unimaginable pressure” after 9/11, offered “their best judgment of what the law required.”

But the OPR probe began after Jack Goldsmith, a Bush appointee who took over OLC in 2003, protested the legal arguments made in the memos. Goldsmith resigned the following year after withdrawing the memos, and later wrote that he was “astonished” by the “deeply flawed” and “sloppily reasoned” legal analysis in the memos by Yoo and Bybee, including their assertion (challenged by many scholars) that the president could unilaterally disregard a law passed by Congress banning torture.

OPR investigators focused on whether the memo’s authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted, according to three former Bush lawyers who asked not to be identified discussing an ongoing probe. One of the lawyers said he was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted. In a departure from the norm, Jarrett also told members of the Senate Judiciary Committee last year he would inform them of his findings and would “consider” releasing a public version. If he does, it could be the most revealing public glimpse yet at how some of the major decisions of Bush-era counterterrorism policy were made.

February 14th, 2009

Haaretz: Gazan civilians with white flag fired upon

The Israeli newspaper Haaretz has yet another of many reports of Israeli forces firing upon Gazan civilians waving white flags. It also describes graffiti left by soldiers:

The Zionist occupier was here,” and “We came to slaughter you.”

It remains to be seen if there will be any accountability for these abuses.

Under a white flag, darkly

By Amira Hass

At 1 P.M. on Monday, January 5, 2009, near Rajib Mughrabi’s garage on Saladin Street, in the Zeitoun neighborhood of Gaza City, a man of about 60 was pushing an elderly woman in a wheelbarrow. A 15-year-old boy walked at their side, waving a white cloth. Behind them, some 80 people were walking northward, their hands in the air. The day before, during Israel Defense Forces advances under cover of heavy fire, Palestinian inhabitants began their great flight westward, inward, into the Strip’s urban centers. If they thought they were in the soldiers’ line of sight, they waved white flags and raised their hands aloft.

The man pushing the wheelbarrow was Mouin Joha, his mother was sitting inside and his son Ibrahim accompanied them bearing the flag.

“On the night between Saturday and Sunday, between January 3rd and 4th,” Joha recalled a few weeks later, “there was shelling just all around us. They were firing from all directions, and inside the house we were dying of fear. With every shell we thought it was the end. We heard the stones quaking. We ran from room to room. We lay the children down on the floor in the innermost room, like fish, one next to the other.”

Joha is an agricultural engineer who studied in Egypt; for the past 15 years, he has worked for the Palestinian ministry of agriculture, supervising strawberry growers. He lived in his unwhitewashed concrete home with two wives and 10 children. In the now half-destroyed house, he recounted the events of the morning of January 4: “They started shooting from the northwest, firing on our home as though we were a military outpost. The girls were crying in fear. Down below, the ground was covered with soldiers. They were shouting, ‘Open the door.’”

The houses along this part of the main thoroughfare of Gaza – Saladin Road – are some 80 to 100 meters from one another. To the east of the houses is an open area of fields and orchards. To the west, the edge of the Zeitoun neighborhood. Now it is strewn with heaps of concrete and other rubble, the walls of its houses gaping open, revealing evidence of fires that have broken out inside. There are also the ruins of the Swafiri family’s chicken coops. As the army advanced, the bulldozers or tanks ran over them. At the end of January, there was still a heavy stench of dead chickens in the air. Municipal sanitation department workers, wearing white clothes and white masks on their faces, were engaged in gathering the dead birds.

The Joha family sent one of the girls down to open the door for the soldiers. The rest of the family came down the stairs “with hands up in the air.” A soldier started smashing the floor in one of the rooms. In a number of the houses that became temporary outposts, the soldiers filled up sacks for their firing positions with the sand found under the flooring. Mouin Joha went up to the top floor with the soldiers “and I discovered that everything was destroyed”: The shelling had brought down walls, bent columns, opened holes. One of the soldiers “photographed us and the destruction,” he recalled, “and then we were ordered to go downstairs. There were maybe 12 of them, maybe 20. I was so scared I couldn’t count.”

Downstairs, said Joha, an officer shouted: “‘Yallah – everyone to Rafah. I want to blow up this house.’ I couldn’t believe my ears. I’ve been building this house all of my life. I said to him, ‘Ya hawaja [an honorific for a non-Muslim], where will I go? The children are so small.’ But he aimed his weapon at me and said: ‘Go, yallah.’ They suggested we go to the mosque, as a place of refuge. I said that the mosque had also become a target for the shelling.”

Joha’s family went to the home of the neighbor, Abu Zur. There they found other escapees, members of the Swafari family. But early Sunday morning, the same story repeated itself, related Mohammed, Joha’s son: “Firing on the house, the girls screaming in fear. We ran from room to room and overhead there was shooting. We started to crawl along the floor.”

The firing came from the northwest (where the army had already taken up positions the previous day). The soldiers heard the screaming and allowed the people to come out of the house. They ordered them to march – men in front and women in back. When they were out in the street, related Mohammed’s mother, Madlala, “they threw stun grenades near us. One of the soldiers took pictures of us, afraid and with the girls screaming. They told us all to go to Rafah. How am I going to walk to Rafah when I have heart problems?”

Houses as IDF positions

The group started walking southward toward the former Netzarim junction, but then its members were fired on from that direction. Panicking, they fled to Mughrabi’s garage – about 60 people, more than half of them children, Mouin Joha estimated.

After resting awhile, they decided to walk to the center of town. The soldiers already knew them, they thought; they had checked and seen that all of them were civilians. Now the same soldiers were sitting in their houses, including that of Joha, all of them transformed into IDF positions.

“We thought the army would let us keep going because we raised a white flag. I got my elderly mother, whom I couldn’t carry, to sit in a wheelbarrow for transporting cola crates, which we padded with some rags,” said Moha. Madlala reminded him that their son Ibrahim was waving a mandil (headscarf).

“We walked for about 150 or 180 meters,” she continued. “There were many of us, and we all had our hands up in the air. And then a shot was fired in front of the wheelbarrow. It was a sharpshooter from Abu Zur’s house. And then another shot – at Ibrahim. He cried out and everyone ran.”

Mohammed carried his wounded brother back to the garage. Somebody called the Red Crescent to send in an ambulance, and then the teenager began to complain of pains in every apart of his body, the mother related. The IDF did not permit an ambulance to enter the area under its control. That night Ibrahim began to spit up blood. At about 2 A.M., some 13 hours after he had been shot, he died.

It was only a few days later, on Thursday, January 8, when the IDF declared a three-hour break in the firing, that the group – now some 80 people, at least half of them children – were able to remove Ibrahim’s body, as well as three others lying in the road; two of them were the bodies of Palestinian fighters (which Mohammed said he had already seen on Monday). They walked about two kilometers northward .

According to Mouin Joha, from one of the houses that now served as military positions, sacks that the soldiers used to hold bodily waste were thrown down at them. Full ones.

When the Joha family returned home, they found many of these bags, some of them leaking, lying about in rooms with walls that were full of holes or totally destroyed. They also discovered plastic bottles full of urine, parts from smashed computers, a refrigerator and washing machine perforated with bullet holes, books stinking of urine and heaps of rubble. The soldiers had also left behind some graffiti, declaring: “The Zionist occupier was here,” and “We came to slaughter you.”

The office of the IDF Spokesman has responded that the events described by Mouin Joha are under investigation, and that the army “allowed the movement of ambulances insofar as it was possible, within the constraints of fighting in an area inhabited by civilians.”

Army sources have told Haaretz that forces “are instructed to respect anyone who waves a white flag as a sign of surrender or non-involvement in the fighting and to refrain from hurting them.”

Also, according to these sources: “Enemy forces make cynical use of this requirement of the IDF, and wave a ‘white flag’ as a cover when carrying out acts of warfare, and in order to avoid attack.”

The sources added that, “in cases when a suspicion arises that a person waving a white flag is acting in a way that endangers our forces, the latter are entitled to take the necessary steps to investigate the suspicion and remove the threat, in accordance with the relevant orders regarding opening fire.”

A tank driver from an Armored Corps battalion was quoted in the January 9 issue of Bamahaneh: “We stayed inside for four days, during the course of which we fired a lot. We suspect everyone. A lot of people pass by in the street waving white rags at us. We don’t hit women and children, but they taught us to suspect men because there are alerts about suicide terrorists disguised as civilians.”

During and after the operation in Gaza, there were a number of reports about people (including women and children) who were shot at by soldiers while trying to escape and waving white flags. These testimonies come from different places, including Ararah (Beit Lahia), Azbat Abed Rabo (east of Jabalya), Huzaa (to the east of Khan Yunis), this last an incident already reported on in Haaretz). Local and international organizations are investigating them in the context of preparing complaints and lawsuits against the IDF.

February 14th, 2009


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