Psyche, Science, and Society

Colin Powells refuses to call it “torture” on Rachel Maddow

Yesterday Rachel Maddow interviewed Colin Powell. Here is the section devoted to what Powell refused to call “torture”. Strangely, given some of his other statements since leaving office, he looks like a Bush administration apologist here. At a minimum, he was totally not forthcoming. Since he is one of the few who was present at the crucial Principals meeting who might talk, this is disturbing:

Here is the transcript of this section of the interview:

RACHEL: On the issue of intelligence—tainted evidence and those things—were you ever present at meetings at which the interrogation of prisoners, like Abu Zubaida, other prisoners in those early days, where the interrogation was directed? Where specific interrogation techniques were approved. It has been reported on a couple of different sources that there were Principals Meetings, which you would have typically been there, where interrogations were almost play-by-play discussed.

POWELL: They were not play-by-play discussed but there were conversations at a senior level as to what could be done with respect to interrogation. I cannot go further because I don’t have knowledge of all the meetings that took place or what was discussed at each of those meetings and I think it’s going to have to be the written record of those meetings that will determine whether anything improper took place.

But it was always the case that, at least from the State Department’s standpoint, we should be consistent with the requirements of the Geneva Convention. And that’s why this was such a controversial, controversial issue. But you’ll have to go, and in due course I think we all will go, to the written record of what memos were signed. I’m not sure what memos were signed or not signed. I didn’t have access to all of that information.

MADDOW: If there was a meeting, though, at which senior officials were saying, were discussing and giving the approval for sleep deprivation, stress positions, water boarding, were those officials committing crimes when they were giving that authorization?

POWELL: You’re asking me a legal question. I mean I don’t know that any of these items would be considered criminal. And I will wait for whatever investigations that the government or the Congress intends to pursue with this.

MADDOW: There have been two Bush administration officials now who have said explicitly that what we did at Guantanamo was torture. One of them was the State Department general counsel for Guantanamo litigation, a man named Vijay—excuse me—Padmanabhan.

POWELL: I don’t know him.

MADDOW: Also Susan Crawford, who heads up the military tribunals at Guantanamo. Both have said it was torture. Do you think that they are wrong? Do you feel like you have enough information to know if people were waterboarded? Is that torture?

POWELL: I will let those who are making the legal determination of that make that judgment. Susan Crawford has made a statement and she is in a position of authority to make such a statement, has access to all of the information. The lawyer you mentioned who is working in, I guess, the legal advisor’s office in the State Department, but I don’t believe I know him, has made statements recently. What’s the basis for his statements and what meetings he was in and whether he was in Guantanamo, I just don’t know.

MADDOW: I guess have to ask that—just a broader question about whether or not you have regrets, not about what the Bush administration did broadly in the years that you were Secretary of State, but the decisions that you participated in about interrogation, about torture, about the other things.

POWELL: We had no meetings on torture. It’s constantly said that the meetings—I had an issue with this—we had meetings on what torture to administer. What I recall, the meetings I was in—I was not in all of the meetings and I was not an author of many of the memos that have been written (and some have come out, some have not come out).  The only meetings I recall were where we talked about what is it we can do with respect to trying to get information from individuals who were in our custody. And I will just have to wait until the full written record is available and has been examined.

MADDOW: I don’t mean to press you on this to the point of discomfort but there is an extent to which there is a legal discussion around this where everybody feels a little constrained by the legal terms and whether or not they are a legal professional. There is also the policy implications that you’ve been so eloquent about, in terms of what the implications are of these policies for the U.S. abroad in a continuing way. And you’ve been very optimistic in thinking that America still has a reservoir of good will around the world that we can call on regardless of these difficulties that we’ve had around these issues.

If specific interrogation techniques were being approved by people at the political level in the Cabinet, it doesn’t—the legal niceties of it almost become less important.

POWELL: I don’t know where these things were being approved at a political level.

MADDOW: If there was a Principals Meeting at the White House to discuss interrogation techniques?

POWELL: It does not mean it was approved, anything was approved, at a meeting.

MADDOW: OK.

POWELL: It depends on did the meeting end up in a conclusion or was it just a briefing that then went to others to make a final decision on and to document. And so it is a legal issue and I think we have to be very careful and I have to be very careful because I don’t want to be seen as implicating anybody or accusing anybody because I don’t have the complete record on this. And that complete record I think in due course will come out.

April 2nd, 2009

Obama’s exemplary legal appointees

I have not shied from criticizing several of Obama’s appointments. Partially to balance that critical tone,  here is an article by Scott Horton on some of his exemplary legal picks. I am disapointed in a number of Obama’s picks and policies.  But some, like those discussed here, fill me with hope:

The Woman Who Could Nail Bush: Are the Worst of the Torture Memos Still to Come?

By Scott Horton

Until recently, the Justice Department’s Office of Legal Counsel, often considered the “brains” of the department, has been known mostly to legal experts. But for the past eight years, it was the epicenter of allegations of political manipulation and, worse, the source of infamous memoranda on torture. In tapping Eric Holder as attorney general, President Obama has promised to restore standards of professionalism to the department. For Republicans, this is tantamount to a declaration of partisan war.

On March 19, the nomination of Indiana University law professor Dawn Johnsen to head the OLC was endorsed by the Judiciary Committee with every Republican voting against her and Sen. Arlen Spector (R-PA) abstaining. The nomination was to have been brought to the Senate floor for a vote on Monday and then again on Wednesday, but it has been held back. Republican leaders, it appears, are playing with the notion of making Johnsen the target of their first filibuster.

The highly credentialed Johnsen is an improbable target, and OLC was long viewed as an obscure post. But Johnsen served as a lawyer for the American Civil Liberties Union and the National Abortion & Reproductive Rights Action League. Antiabortion groups have targeted Johnsen over the last three weeks with a massive telephone, email, and letter-writing campaign, demanding that senators oppose her nomination. Johnsen is labeled a “radical, pro-abortion activist,” although her views on the abortion issue line up very closely with the mainstream. While the noise surrounding the Johnsen nomination appears on the surface to be about the abortion issue—over which her position at OLC would have very little influence—discussions with Republican stalwarts reveal that their main concerns lie elsewhere.

The real reason for their vehement opposition is that Johnsen is committed to overturning the Bush administration’s policies on torture and warrantless surveillance, which would clip the wings of the imperial presidency. Even more menacingly (from their perspective), she is committed to shining a light on some of the darkest skeletons of the Bush years. Already, publication of OLC memoranda authorizing torture, approving warrantless surveillance, and pronouncing the First and Fourth Amendments a dead letter in connection with domestic military operations has rocked the public. More memos, potentially even more disturbing, I have learned, are about to be made public soon. Yet these are difficult issues on which to attack Johnsen, other than through vague suggestions that she is “weak on national security.” Hence the steady stream of accusations linked to her largely irrelevant views about abortion rights.

Will the Republicans attempt to filibuster the Johnsen nomination? The threat is sufficiently serious to have provoked the editors of the New York Times to editorialize in support of Johnsen on Thursday. Calling the operation of OLC in the Bush era “lawless,” the editors wrote, “Ms. Johnsen is superbly qualified and has fought for just the sort of change the office needs.”

The controversy surrounding Johnsen provides a flashpoint for President Obama’s nominees for administration legal posts. Unsurprisingly, they look an awful lot like Barack Obama—strong legal credentials, an academic bent, and liberal attitudes balanced by a strong commitment to political pragmatism.

Obama’s top picks start with a couple of well-known Washington names. Eric Holder, the nation’s first black attorney general, was a career Justice Department attorney who spent his formative years as a prosecutor in the department’s Public Integrity Section (much-criticized for abuse under Bush). He spent time as a U.S. attorney, a judge, and ran the Justice Department for a while as deputy attorney general in the Clinton years. Obama’s White House counsel, Greg Craig, is a Washington fixture at the powerhouse Williams & Connolly law firm. The former foreign-policy aide to Sen. Edward Kennedy and State Department official has handled high-profile cases from Clinton’s impeachment defense to representing the father of Elian Gonzales. In the way of Washington, he is also has ties to powerful Republicans, including Karl Rove and Alabama Sen. Richard Shelby, whom he successfully represented in a sensitive FBI investigation into the leaking of classified data.

But delving deeper into the list, the names are less known for pragmatic politics and inside-the-Beltway experience than for pure intellectual firepower. Nearly a quarter of all Obama nominees have a Harvard degree. No fewer than 11 Harvard Law School faculty members drew appointments in the Obama team, including the dean, Elena Kagan, who was also deputy domestic-policy adviser to President Clinton. He also tapped Yale’s law-school dean, Harold Koh, widely thought to be a possible Supreme Court appointment, to serve as the principal lawyer at the State Department. Obama has mined the University of Chicago, the University of Michigan, and Georgetown. All these schools are being forced to scramble as professors announce the cancellation of classes and prepare to depart for Washington.

A scan of the names involved makes clear that Obama is not looking for any particular ideological line—the candidates tapped range from centrist conservatives to traditional liberals. But he clearly is seeking individuals highly regarded by their peers who are on top of the issues for which they will have responsibility.

The trio of appointments Obama announced for the OLC underscores this point. In addition to Johnsen, Obama chose Harvard law professor David Barron and Georgetown law professor Marty Lederman as her two deputies. The three nominees have similar histories. Each served in the OLC in prior administrations before departing for academia. And over the last eight years, each spent a good deal of time and energy studying and criticizing the conduct of the OLC in the Bush years. Barron and Lederman co-authored a highly regarded two-part historical study of presidential powers, which demolished the underpinnings of the most significant OLC memoranda authored by John Yoo, including the famous torture memorandum. The three may well have been the Bush OLC’s most vocal critics, highlighting its departure from traditions and practices of earlier administrations. All three were also sharply critical of the Bush team’s devotion to secrecy in the formation of legal policy. It is therefore unsurprising that the Obama team has moved very quickly to publish the previously secret opinions that their Bush predecessors issued and to overturn those decisions. It would be hard to identify three lawyers more knowledgeable about the subject than Johnsen, Barron, and Lederman.

In the coming two weeks, their push for transparency will result in the publication of more Bush-era OLC memos, including the specific approvals granted for waterboarding, extended isolation, and other torture techniques—memos that the Bush administration has sought to keep secret. Former CIA Director Michael Hayden and Obama adviser John Brennan are said to have “gone to the mat” to keep the opinions secret, but Obama sided with his designated OLC team and upheld the decision to declassify and publish them.

Harvard law professor Laurence Tribe, one of the nation’s leading constitutional scholars and Supreme Court advocates, and Obama’s former teacher, is often mentioned as an adviser in the background, a gray eminence, counseling Obama on appointments and policy choices. He is widely believed to covet an appointment to the Supreme Court, though, at 67 years old, he might be passed over for a younger person. While Tribe is a regular target of the right and closely connected to an array of liberal causes, those familiar with his role in the recent appointments process say that he has steadily advised Obama to avoid ideological confrontations and stressed pragmatism as an important quality for appointees.

Another legal academic said to figure in Obama’s inner circle is Harvard law professor Cass Sunstein, who until recently was a colleague of Obama’s at the University of Chicago Law School. Sunstein has been appointed to head the White House Office of Information and Regulatory Affairs, while his wife Samantha Power, a Pulitzer Prize-winning author, serves as chief on the National Security Council as head of international organizations. Sunstein is associated with the notion of judicial minimalism, arguing that decisions should be taken on the narrowest possible case-specific grounds so as to preserve a broader range of options in future cases. The executive orders that Obama issued in his first two days in office were widely seen as following Sunstein’s minimalist approach in confronting a range of national-security issues on which Obama has pledged changes.

Unlike Obama, a professor of law, George W. Bush was noted for a sharp disdain for lawyers. He liked to make disparaging jokes about attorneys in pinstripes and tasseled loafers. “I don’t care what the international lawyers say, we are going to kick some ass,” he barked as the war on terror got under way, according to former counterterrorism chief Richard Clarke. Through the Bush administration, appointment to high-level legal positions was usually a reward for faithful service—as personified by Alberto Gonzales, who as counsel to the president and attorney general arguably held the two most powerful legal posts. Gonzales’ entire career, as a partner at the prestigious Houston firm of Vinson & Elkins, in Texas state government, and finally in Washington, was marked by service to a single client: George W. Bush.

The Bush administration’s overriding concern was for political loyalty. It demanded individuals who would unquestioningly implement the White House’s directives. The notion of independent professional judgment was derided as counterproductive at best and a cloak for liberal activism at worst. To that end, selecting the best and the brightest was not advisable. Where prior administrations looked for the top graduates from the nation’s elite law schools, the Bush team scoured schools not found in a list of the top-100 law schools (and sometimes not even ABA-accredited), but with strong ties to the religious right and the Republican Party. Justice Department officials openly asked job candidates whether they had worked for the Bush-Cheney campaign and contributed money and quickly rejected those whose offense was support for John McCain in the 2000 Republican primaries. Membership in the movement’s conservative legal organization, the Federalist Society, was also a plus if not essential—in recently disclosed emails, former Bush-era U.S. attorney and Civil Rights Division Director Bradley Schlozman (whose case is now under review for the possible filing of criminal charges) called them “ideological comrades.” The result was a Justice Department filled with political hacks in appointed positions and a historically unprecedented level of politicization in its decision-making process.

The Obama nominees, presenting the sharpest possible contrast, have drawn sputtering fire from Republicans in Congress and have come under broad attack from religious-right leaders who previously had strong influence in Justice Department picks. Dawn Johnsen is an interesting test case. If the Republicans opt for a filibuster or move to line up a unanimous GOP vote in opposition, it will be a shot across the bow of the Obama Justice Department.

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Scott Horton is a law professor and writer on legal and national-security affairs for Harper’s magazine and the American Lawyer, among other publications.

April 2nd, 2009

Is Leahy’s Truth Commission dead?

Charlotte Dennett, in reporting on a meeting with Sen. Patrick Leahy, says that Leahy has given up on his Truth Commission idea, due to lack of support. Daphne Eviatar in the Washington Independent believes the report, though Leahy’s staff didn’t fully confirm it to her. She, however,  thinks that this increases the odds of prosecutions of senior bush administration figures for human rights abuses. I must say that I don’t see the logic. If the Obama administration won’t back a truth commission, why would they take the far more controversial step of initiating criminal prosecutions?

I would caution that we should wait for further confirmation before taking this report as a definitive statement. but, for the moment, thinks don’t look very good on the accountability front.

Unfortunately, as in other recovering countries, it may take years, or even decades, of pressure before our society decides to come to terms with its recent history of legalized torture. In any case, we must keep up the pressure for the long haul. And we can hope that the Spanish investigations into the torture lawyers continue.

Dennett’s report:

Leahy Bails on ‘Truth Commission’ Plan

By Charlotte Dennett

Editor’s Note [Consortium News]: The U.S. government seems paralyzed at the prospect of holding ex-President George W. Bush and other senior officials accountable for war crimes, even as Spanish investigative judge Baltasar Garzon initiates an inquiry under international law regarding torture sanctioned by Bush’s lawyers.

In this guest essay, investigative journalist and former candidate for Vermont attorney general, Charlotte Dennett, describes a meeting with Sen. Patrick Leahy in which he acknowledges the failure of his plan for a “truth commission”:

Those of you following the George W. Bush prosecution trail will be interested to know that Patrick Leahy’s “truth commission” is a no-go. I was in a meeting with Leahy and four other Vermonters on Monday when he broke the news to us.

We had asked for the meeting to learn why he supported a truth commission over the appointment of a special prosecutor.

Halfway through the allotted 30 minute meeting (with him taking up much of the time explaining why he was not generally opposed to prosecution, since he had been a DA for eight years and had the highest conviction rate in Vermont), he told us that his truth commission had failed to get the broad support it needed in Congress, and since he couldn’t get one Republican to come behind the plan, “it’s not going to happen.”

It was a sobering exchange. The meeting had begun with our expressing serious concerns about ongoing dangers to our democracy, with the trend going to executive power while damaging our Constitution.

“We are a nation of laws,” said Dan DeWalt, who had helped organize 36 Vermont towns to vote for impeachment of Bush on town meeting day. “If we have a system of justice, why not let it take its course? It seems to many Americans that the rich and powerful don’t have the same system of justice, and they’re getting away with torture, murder, fraud, and Ponzi schemes.”

By the end of the meeting, we were beginning to wonder whether anything at all was going to done  – by Congress, by Attorney General Eric Holder, by President Barack Obama – to hold the Bush team accountable for its crimes.

Leahy’s own aversion to appointing a special prosecutor appeared to be more practical than philosophical.

”We don’t want another Abu Ghraib,” he said. “You know, ‘Boy, did we get those privates and corporals.’ So many up on high will never get touched. It’s like the war on drugs – ‘let’s get those black kids on cocaine.’”

So it’s not that Leahy had a problem with prosecutions per se. “I just worry that the prosecutions will be done only on middle-level people,” he said.

Well then, what would happen to the higher-ups? Leahy had said, on previous occasions, that the purpose of his truth commission was to grant immunity to those willing to testify – presumably middle-level people – and we could infer from that that they, in turn, would spill the beans on their superiors.

If any of the witnesses lied under oath or were less than thorough in their answers, Leahy had told MSNBC’s Rachel Maddow a month ago, they could be prosecuted for perjury. But that still left the fate of high government officials uncertain.

Leahy had hinted to Maddow that if officials refused to honor subpoenas, they, too could be prosecuted. But in the real world, as Monday’s news suggests, the people most responsible for the crimes will continue to get off free.

We should at least be content, Leahy said, with his success in forcing former Attorney General Alberto Gonzales’s resignation in 2007.

After Leahy left the meeting, his aide, Chuck Ross, assured our group that there was no one more devoted to protecting the Constitution than Leahy.

“He has been persistent in the face of obfuscation,” Ross said. “He got rid of Gonzales. I would challenge you to find someone who has done more to defend the Constitution.”

Then Ross let out a memorable one-liner: “He’s all you’ve got.”

What? Leahy’s all we’ve got to protect the Constitution? And we have to accept Gonzales’s resignation as the only punishment for years of gutting the rule of law? It took about five minutes for all this to sink in.

Then fellow Vermonter John Nirenberg spoke, I think, for all of us: “If he’s the only guy, this is not a healthy situation.”

It is, perhaps, no coincidence, that the same time Leahy downplayed the truth commission, congressional aides were quoted by reporter Jason Leopold of Consortiumnews.com that “the focus has shifted to the economy and that pressure for a special prosecutor to bring criminal charges over the Bush administration’s past actions could become a distraction to that focus.”

Leahy’s aide Ross had said the same thing. Everyone was focusing on the economy.

So now, it seems, the wrecked economy – complements of the Bush administration — is becoming the excuse for congressional inaction after eight years of unremitting malfeasance by the Bush administration.

This is serious, folks. Appointing a special prosecutor had been the top issue on President Obama’s Web site when he took office. Either he’s not listening any more, or his supporters are “looking forward, not backward,” just as he prefers – and just as his right flank (the CIA, the neocons, and everyone else who has something to hide) desperately want.

It remains to be seen if Obama’s huge base can get through to him on this issue, now that he occupies the White House. If they cannot, then the failure to hold even a truth commission, let alone prosecutions, signals a return to the same old way of doing things. Deterrence be damned.

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Charlotte Dennett is a lawyer and investigative journalist. She recently ran for Attorney General in Vermont on a pledge to prosecute George W. Bush under state criminal statutes for murder (i.e .for sending troops to their deaths in Iraq under false pretenses). She also promised, if elected, to appoint legendary Manson prosecutor Vincent Bugliosi as her special prosecutor. She lost the election but has continued to keep abreast of developments within the accountability movement.

April 2nd, 2009

Senate Armed Services report to highlight psychologists’ role

Jason Leopold is reporting that the Senate Armed Services Committee [SASC] report on U.S. military [as opposed to CIA] interrogations and torture is due out soon, perhaps within a week. I’m a bit skeptical as I’ve been hearing it would be released in “one or two weeks” for months now, so we’ll see. The report was completed in December, but has been undergoing negotiations about declassification all this time. The Executive Summary was released in mid-December.  The full report is  believed to add crucial details to the outline provided by the Executive Summary.

According to Leopold, psychologists will play an important role in the report:

“The declassified version of his report will include a full account of the roles military psychologists played in assisting the Bush administration implement a policy of torture.”

Unfortunately, I doubt the SASC report will contain a full account of the role the American Psychological Association played in providing cover for the psychologist-torturers. Rather than act to stop the abuse, in 2005 they appointed some of the key psychologists in the chains of command responsible for the abuse to dominate their “ethics” task force formulating policy on psychologists involvement in detainee interrogations.

Rather than tackle reports of abuse that filled the press by that point, this task force agreed that psychologist participation in a variety of national security operations, including interrogations at Guantanamo and elsewhere, was “ethical” and secretly concurred with the opinion of the then APA President-Elect, a renowned expert in “psychological ethics,” that:

“The goal of such psychologists’ work will ultimately be the protection of others (i.e., innocents) by contributing to the incarceration, debilitation, or even death of the potential perpetrator, who will often remain unaware of the psychologists’ involvement.”

While the APA ethics code states in its Principle A: Beneficence and Nonmaleficence:

“Psychologists strive to benefit those with whom they work and take care to do no harm. In their professional actions, psychologists seek to safeguard the welfare and rights of those with whom they interact professionally and other affected persons.”

Evidently, this “ethics” task force found no conflict between “benefiting those with whom they work and take care to do no harm” and “contributing to the incarceration, debilitation, or even death of the potential perpetrator.” I guess “debilitation, or even death” do not count as “harm” when done in the name of “national security.”

By the way, the until very recently, the APA leadership still expressed pride in the performance of this task force and disingenuously claims that the task force membership was not kept from the public and APA membership. However, against the will of those leaders, the APA membership resoundingly rejected their leadership’s policies on participation in interrogations in a referendum last fall. Since then, to the APA leadership’s credit, and likely in acknowledgment of a new climate among their Washington contacts and in the country at large, they have moved to implement the policy ratified by their membership.

[Those wanting fuller accounts of the APA's systematic duplicity during the scoundrel times can examine my just released chapter "Closing Eyes to Atrocities: U.S. Psychologists, Detainee Interrogations, and Response of the American Psychological Association" and a response my colleagues and I wrote to an APA press release reiterating their indefensible claim to have actively opposed torture and detainee abuse.]

However, there is much more to be learned about the role of the APA. We desperately need a full investigation, either as part of a national Committee of Inquiry into US torture and detainee abuse or as a free-standing investigation.

We also need investigation into all the health professionals — physicians, psychologists, nurses, medical technicians, etc. — who, wrote false death certificates,  monitored detainee interrogations, stitched up the bodies and minds of the maimed, and force fed those protesting abusive detention while virtually never attempting to stop the abuse or documenting or reporting it.

Meanwhile, none of the health professional associations took adequate steps to deal with this complicity of their member professionals. None of the psychologists, physicians, or other health professionals has been sanctioned by and professional association or state licensing board, despite several complaints having been filed.  The traditional mechanisms of professional ethics enforcement have grievously failed when faced with a program of state-sanctioned torture and abuse. In order to better understand the magnitude of these failures, and the institutional reasons for them, we need a Health Professionals Truth Commission. This Commission would  conduct a full investigation, including of the varied professional associations, in order to recommend ethical, policy, and structural changes to prevent a recurrence of this complicity when the next crisis comes.

Ideally this health professionals investigation will be conducted as a component of a larger national Commission of Inquiry into US torture and detainee abuse. However, if the larger commission doesn’t materialize or fails to tackle health professionals’ complicity, the professions themselves, in conjunction with human rights organizations, must act. We owe it to our members an to the public we serve to draw a bright line between our professions, dedicated as they are to improving the health and welfare of our patients and others’ whom we serve, and state-sponsored programs of abuse. To fail to draw this line will undermine public faith and trusts in our professions, to our detriment and to the detriment of those needing our help.

Here is the Leopold article [h/t Valtin]:

Senate Report to Reveal New Details of Bush Officials’ Role in Torture

By Jason Leopold

While Congress has focused primarily on the country’s economic turmoil and the lavish bonuses paid to Wall Street executives, a Senate Armed Services Committee report currently in the process of being declassified will force lawmakers to shift gears.

The Armed Services Committee will release–possibly as early as next week—its voluminous report on the treatment of alleged terrorist detainees held in U.S. custody and the brutal interrogation techniques they were subjected to, according to Defense Department and intelligence sources who described the report as the most detailed account to date of the roles senior Bush administration and Defense Department officials played in implementing a policy of torture at Guantanamo, Abu Ghraib prison in Iraq and other detention centers.

The full declassified version of the report is 200 pages, contains 2,000 footnotes, and will reveal a plethora of new information about the genesis of the Bush administration’s interrogation policies. The investigation relied upon the testimony of 70 people, generated 38,000 pages of documents, and took 18 months to complete. The declassified version of his report will include a full account of the roles military psychologists played in assisting the Bush administration implement a policy of torture.

The committee released a 19-page summary of its investigation last year and voted last November to accept the full classified version of the report’s findings. According to the executive summary, “efforts by administration officials to place responsibility for detainee abuses mostly on lower ranking military personnel as both inaccurate and misleading.”

The release of the full declassified version of the Armed Service’s Committee report will also put additional pressure on the Obama administration to immediately launch a full-scale investigation into the Bush administration’s interrogation program. Last week, the ACLU called on Attorney General Eric Holder to appoint a special prosecutor to probe Bush administration officials who signed off on and approved the torture of prisoners.

But at his first prime-time news conference in February, Obama said in response to questions about the Bush administration’s interrogation practices that no one is above the law but that he favored looking forward, not backward.

“What I have said is that my administration is going to operate in a way that leaves no doubt that we do not torture that we abide by the Geneva Conventions and that we observe our traditions of rule of law and due process as we are vigorously going after terrorists that can do us harm,” Obama said.

“My view is also that nobody is above the law, and if there are clear instances of wrongdoing then people should be prosecuted just like any ordinary citizen. But generally speaking I am more interested in looking forward than I am in looking backwards.”

Levin has asked Holder to appoint someone to further probe his report’s findings and make a recommendation to Holder on how to proceed. The attorney general hasn’t yet responded. Matthew Miller, a Justice Department spokesman, said Friday he was working on obtaining a response to Levin’s recommendation to Holder but Miller was unable to provide The Public Record with a response by the time this story was published. We will, however, update this report with Miller’s response when we receive it.

In January, at a progressive media summit, Levin said, “There needs to be, I believe, an accounting of torture in this country.”

“I suggested to Eric Holder, who will be the next Attorney General despite the delay that took place today, that he select some people or hire an outside person who’s got real credibility, perhaps a retired federal judge, to take all the available information, and there’s reams of it,” Levin said Jan. 21. “Look, the Vice President, the former Vice President of the United States, acknowledged that they engaged in torture. He says that waterboarding’s not torture, he’s wrong. Waterboarding is torture, period.

“And this administration and Eric Holder has said so. It’s torture and there’s other forms that they engaged in, so what needs to be done, I believe, in addition to finishing the investigation, is for the Attorney General, the new Attorney General, to identify some people in his office to take the existing documentation. The acknowledgment, folks, this is not a very difficult — this is almost like a case in court with an agreed upon statement of facts, that the previous administration acknowledges that they engaged in waterboarding, period. . .”

John Yoo

The Armed Serivces Committee investigation has already concluded that “members of [Bush’s] Cabinet and other senior officials participated in meetings inside the White House in 2002 and 2003 where specific interrogation techniques were discussed. National Security Council Principals reviewed the CIA’s interrogation program during that period.”

But the declassified committee report contains detailed information about those secret meetings. John Yoo, a deputy assistant attorney general at the Justice Department’s Office of Legal Counsel, participated in several of these meetings prior to writing a legal opinion authorizing interrogators to subject detainees to waterboarding and other brutal techniques.

Last year, in response to questions by Armed Services Committee Chairman Carl Levin, Condoleezza Rice, who was National Security Adviser when interrogation methods were discussed, said that beginning as early as the summer of 2002 Yoo provided legal advice at “several” meetings that she attended and that the Department of Justice’s advice on the interrogation program “was being coordinated by Counsel to the President Alberto Gonzales.”

Yoo met with Gonzales and David Addington, counsel to Vice President Dick Cheney, to discuss the subjects he intended to address in the August 2002 torture memos, according to a declassified summary of the Armed Services Committee report.

Those meetings and the legal opinions that followed have also been scrutinized in a separate report by the Justice Department’s Office of Professional Responsibility (OPR), which spent four years reviewing the legal work of Yoo and other attorneys at the OLC. The OPR report, which is still classified, zeroed in on the meetings Yoo participated in and concluded that Yoo had breached “professional standards” by acting as an advocate for White House policy, according to Justice Department officials who spoke on the condition of anonymity because the report is still classified.

SERE Techniques

The declassified report will include a full accounting of how the military’s Survival Evasion Resistance and Escape (SERE) training program, which was meant to prepare U.S. soldiers for abuse they might suffer if captured by an outlaw regime, was reverse engineered and used against detainees during interrogations. SERE training techniques include stress positions, forced nudity, use of fear, sleep deprivation and, until recently, the Navy SERE school used the waterboard.

Already, the committee has revealed that discussion surrounding the use of SERE techniques on detainees began in the spring of 2002 and inquiries about the use of SERE methods were made in December 2001, well before the issuance of a legal opinion authorizing the use of harsh interrogation methods.

“Resistance training (the “R” in SERE) was a subject of discussion,” Levin said in a statement last December accompanying an executive summary of his committee’s report. “We discovered that in July 2002, at the request of [Department of Defense] General Counsel Jim Haynes’s office, the Joint Personnel Recovery Agency (JPRA) – the DoD agency that oversees SERE training – provided Haynes’s office a list of techniques used in SERE school and an assessment of the psychological effect of using those techniques on students.

“In December 2002, Secretary of Defense [Donald] Rumsfeld authorized some of those same techniques for use against detainees at [Guantanamo]. We discovered that, in January 2003, SERE instructors traveled to [Guantanamo] and trained interrogators to hit detainees and put them in stress positions. And the investigation revealed that instructors from JPRA’s SERE school participated in at least one abusive interrogation and were present for others during a visit to Iraq in September 2003.

“Secretary of Defense Donald Rumsfeld’s authorization of aggressive interrogation techniques for use at Guantanamo Bay was a direct cause of detainee abuse there,” the Armed Services Committee report concluded.” Secretary Rumsfeld’s December 2, 2002 approval of Mr. Haynes’s recommendation that most of the techniques contained in [Guantanamo’s] October 11, 2002 request be authorized, influenced and contributed to the use of abusive techniques, including military working dogs, forced nudity, and stress positions, in Afghanistan and Iraq.”

The investigation found that the CIA’s interrogation program “included at least one SERE training technique, waterboarding.”

“Senior Administration lawyers, including Alberto Gonzales, Counsel to the President, and David Addington, Counsel to the Vice President, were consulted on the development of legal analysis of CIA interrogation techniques,” a declassified summary of the report said. “Legal opinions subsequently issued by the Department of Justice’s Office of Legal Counsel (OLC) interpreted legal obligations under U.S. anti-torture laws and determined the legality of CIA interrogation techniques.

“Those OLC opinions distorted the meaning and intent of anti-torture laws, rationalized the abuse of detainees in U.S. custody and influenced Department of Defense determinations as to what interrogation techniques were legal for use during interrogations conducted by U.S. military personnel.”

Last June, Levin said he sent Jay Bybee, the former assistant attorney general at OLC who signed the infamous Aug. 1, 2002 torture memo, a list of questions about the implementation of SERE methods.

“In his response to my questions, Jay Bybee said that, in July 2002 – just before those two OLC opinions were issued and about the same time Jim Haynes’s office requested a list of SERE training techniques and information on the psychological effects of SERE (including waterboarding), the CIA provided OLC with an assessment of the psychological effects of SERE resistance training,” Levin said last December. “Jay Bybee wrote me that the assessment provided by the CIA was used to “inform” the August 1, 2002 OLC legal opinion that has yet to be made public. (CIA officials, including George Tenet and acting General Counsel John Rizzo declined to answer questions relating to both that assessment and the CIA’s interrogation program.)

“Judge Bybee’s answers provide insight into how senior officials in the United States government sought information on aggressive techniques used in SERE training, twisted the law to create the appearance of their legality, and authorized their use against detainees.”

Bybee’s legal work in this area was also harshly criticized by OPR, according to sources familiar with the contents of the watchdog’s report. Bybee is now a judge on the 9th Circuit Court of Appeals in San Francisco.

The investigation Levin’s committee conducted concluded that a Feb. 7, 2002, action memorandum signed by George W. Bush that excluded “war on terror” suspects from Geneva Convention protections was responsible for the abuse of detainees at Abu Ghraib and Guantanamo.

“Following the President’s determination, techniques such as waterboarding, nudity, and stress positions, used in SERE training to simulate tactics used by enemies that refuse to follow the Geneva Conventions, were authorized for use in interrogations of detainees in U.S. custody,” the committee’s report concluded.

“The abuse of detainees in U.S. custody cannot simply be attributed to the actions of ‘a few bad apples’ acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.”

Rumsfeld and Chertoff

Rice told Levin in written responses to his committee’s queries last September that the CIA’s interrogation program was reviewed by National Security Council principals and that Rumsfeld participated in that review.

Rice said that when the CIA sought approval of the interrogation program she asked Tenet to brief the principals and asked Attorney General John Ashcroft to “personally advise NSC Principals whether the program was lawful.”

John Bellinger, Rice’s Legal Advisor, told Levin that he asked CIA lawyers to seek legal advice not only from the OLC, but also from the Criminal Division of the Department of Justice, headed at the time by Michael Chertoff.

Chertoff reportedly advised the CIA General Counsel Scott Muller and his deputy, John Rizzo, that the August 1, 2002, legal opinion protected CIA interrogators from prosecution if they used waterboarding or other harsh tactics.

In February 2005, during his Senate confirmation hearing to become Homeland Security secretary, Chertoff said he provided the CIA broad guidance in response to its questions about interrogation methods, but never addressed the legality of specific techniques.

Abu Zubaydah’s Torture

The declassified report will also for the first time include a full account about the fierce objections the FBI had toward the CIA’s interrogation of Abu Zubaydah, an alleged “high-value” al-Qaeda detainee, and an in-depth accounting of the meetings and discussions that led to his torture..

According to documents Levin’s committee obtained from the Department of Justice, Daniel Levin, the former head of the agency’s Office of Legal Counsel, indicated that in 2002 “in the context of the Zubaydah interrogation, he attended a meeting at the National Security Council (NSC) at which CIA techniques were discussed.

Daniel “Levin stated that a DOJ Office of Legal Counsel (OLC) attorney gave advice at the meeting about the legality of CIA interrogation techniques. Levin stated that in connection with this meeting, or immediately after it, FBI Director Mueller decided that FBI agents would not participate in interrogations involving techniques the FBI did not normally use in the United States, even though OLC had determined such techniques were legal,” according to questions directed to Rice by Sen. Levin.

Daniel Levin was forced to resign in 2004 when Alberto Gonzales became Attorney General because he objected to waterboarding.

The CIA videotaped Zubaydah’s interrogations and the tapes were destroyed. Two weeks ago, author Mark Danner disclosed a report prepared by the International Committee of the Red Cross (ICRC), concluding that the abuse of 14 “high-value” detainees, including Zubaydah, “constituted torture.”

“In addition, many other elements of the ill treatment, either singly or in combination, constituted cruel, inhuman or degrading treatment,” according to the ICRC report. Since the ICRC’s responsibilities involve ensuring compliance with the Geneva Conventions and supervising the treatment of prisoners of war, the organization’s findings carry legal weight.

The ICRC report also found that there was a consistency in many details from the detainees who were interviewed separately and that the first “high-value” detainee to be captured, Abu Zubaydah, appeared to have been used as something of a test case by his interrogators. Zubaydah was one of the prisoners whose interrogations were videotaped by the CIA.

In her responses to Sen. Levin’s questions regarding Zubaydah’s interrogation, Rice said she had “general recollection that FBI had decided not to participate in the CIA interrogations but I do not recall any specific discussions about withdrawing FBI personnel from the Abu Zubaydah interrogation.”

The final conclusion of Levin’s investigation was that the “abuse of detainees at Abu Ghraib in late 2003 was not simply the result of a few soldiers acting on their own.”

“Interrogation techniques such as stripping detainees of their clothes, placing them in stress positions, and using military working dogs to intimidate them appeared in Iraq only after they had been approved for use in Afghanistan and at [Guantanamo],” a declassified summary of his report said. “Secretary of Defense Donald Rumsfeld’s December 2, 2002 authorization of aggressive interrogation techniques and subsequent interrogation policies and plans approved by senior military and civilian officials conveyed the message that physical pressures and degradation were appropriate treatment for detainees in U.S. military custody. What followed was an erosion in standards dictating that detainees be treated humanely.”

April 2nd, 2009