British attorney and author of The Torture Team, Phillipe Sands, testifies before the House Judiciary Committee:
Then watch Sands reply to a question from Republican Rep. Mike Pence, about how to interrogate the “difficult cases”:
[pdf of testimony; attachment, Vanity Fair article, The Green Light]
Add comment May 12th, 2008
Ow! Joe Conason thinks Hillary Clinton is starting “to sound like a reincarnation of the late George Wallace.” That must hurt.
Add comment May 9th, 2008
I feel obligated to express my disgust, to put it mildly, with the racist turn in Hillary Clinton’s campaign. Not being sure of the best way to do so, I’ve decided to copy and post this entry from Talking Points Memo:
Pretty Black and White
TPM Reader AB is having a hard time reconciling Hillary’s remarks on Obama’s support among working class whites:
It seems to me that every progressive voice in this country should be outraged - jumping up and down - shouting in print and word - to repudiate Hillary Clinton’s remarks that Obama “is having trouble winning over blue collar “white” voters… “white Americans”…It is a disgraceful, shameful tactic to justify her own non-candidacy. This is a remark I would expect from a politician from Mississippi or Louisiana - not from our New York State senator… I am outraged, I am deeply embarrassed that my children have heard this reported on the news…and I regret that have I ever gave her one hard earned nickel.
All the while she touts the glass ceiling as a woman but when her chips are down, the racism springs forth fully formed.
AB is right. Maybe it’s general campaign fatigue, or the sense that the race is all but over now, but a month ago her remarks would have been a huge story, the dominant political story of the day.
The political press spent weeks trying to divine whether the Clinton camp was really attempting to cast Obama as the black candidate, a favorite son candidate of the African American community. The Clinton camp vehemently denied it then and even as recently as a few days ago Bill Clinton claimed it was the Obama camp playing the race card against him.
Race has been the subtext of much of Hillary’s argument for her own electability. But now she’s thrown it right out there in the open: Obama can’t win because he’s black. Vote for me instead.
You don’t have to believe that Hillary’s a racist (I don’t) to conclude that a combination of the rigors of the campaign trail and her own powerful ambitions have clouded her judgment and curdled her spirit. It has certainly soured what had been a historic relationship between the Clintons and the black community.
Hers is not an appeal we’d tolerate from a Republican candidate, nor should we from a Democrat, no matter how sterling her progressive credentials might otherwise be.
There’s been a lot of talk about the damage Hillary will do to the party by staying in the race this long. Perhaps she should consider the damage she’s doing to herself.
–David Kurtz
The one thing I would disagree with is the formulaic statement that David doesn’t think Hillary is racist:
You don’t have to believe that Hillary’s a racist (I don’t)…
After all, we psychologists, and any thinking person living in this society knows that, at some visceral level, we all harbor racist impulses. So, if the term “bot a racist” is to mean anything, it should mean one who fights against those impulses. Someone who chooses, for expediency, to fan these impulese, is a “racist.” After all, the same argument was made about George Wallace, that he wasn’t a “racist,” but only used racist themes for political expediency. And we know that Strom Thurmond had a complex relationship with race, with his mistress and child and all. To accept these arguments is to reduce “racism” to a personal predilection, and ignore the social and systemic aspects that make it so pernicious. Whether Hillary Clinton dislikes black people, or simply chooses to increase hatred of them for her benefit is irrelevant, except to biographers. If she chooses to unleash racism, she’s a racist.
So I would argue that anyone who deliberately appeals to racism for personal benefit, especially in a way likely to increase racial animosity, is a racist. We should not let Clinton, either one of them, off so easy. And we should should shout it from the rooftops. To do any less is to become complicit in the inexcusable.
4 comments May 8th, 2008
Marjorie Cohn, President of the national Lawyers guild, testified to Congress on Tuesday regarding legal culpability for US torture by commanders and by the torture lawyers:
Testimony of Marjorie Cohn
“From the Department of Justice to Guantánamo Bay: Administration Lawyers and Administration Interrogation Rules”
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
House Judiciary CommitteeMay 6, 2008
What does torture have in common with genocide, slavery, and wars of aggression? They are all jus cogens. That’s Latin for “higher law” or “compelling law.” This means that no country can ever pass a law that allows torture. There can be no immunity from criminal liability for violation of a jus cogens prohibition.
The United States has always prohibited torture in our Constitution, laws, executive statements, judicial decisions, and treaties. When the U.S. ratifies a treaty, it becomes part of American law under the Supremacy Clause of the Constitution.
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, says, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.”
Whether someone is a POW or not, he must always be treated humanely; there are no gaps in the Geneva Conventions.
The US War Crimes Act, and 18 USC sections 818 and 3231, punish torture, willfully causing great suffering or serious injury to body or health, and inhuman, humiliating or degrading treatment.
The Torture Statute criminalizes the commission, attempt, or conspiracy to commit torture outside the United States.
The Constitution gives Congress the power to make laws and the President the duty to enforce them. Yet Bush, relying on memos by lawyers including John Yoo, announced the Geneva Conventions did not apply to alleged Taliban and Al Qaeda members. But torture and inhumane treatment are never allowed under our laws.
Justice Department lawyers wrote memos at the request of Bush officials to insulate them from prosecution for torture. In memos dated August 1, 2002 and March 18, 2003, John Yoo wrote the DOJ would not enforce U.S. laws against torture, assault, maiming and stalking, in the detention and interrogation of enemy combatants.
The maiming statute makes it a crime for someone “with the intent to torture, maim, or disfigure” to “cut, bite, or slit the nose, ear or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb, or any member of another person” or throw or pour upon another person any scalding water, corrosive acid, or caustic substance.
Yoo said, “just because the statute says — that doesn’t mean you have to do it.” In a debate with Notre Dame Professor Doug Cassell, Yoo said there is no treaty that prohibits the President from torturing someone by crushing the testicles of the person’s child. It depends on the President’s motive, Yoo said, notwithstanding the absolute prohibition on torture.
Yoo twisted the law and redefined torture much more narrowly than the Torture Convention and the Torture Statute. Under Yoo’s definition, you have to nearly kill the person to constitute torture.
Yoo wrote that self-defense or necessity could be defenses to war crimes prosecutions, notwithstanding the Torture Convention’s absolute prohibition against torture in all circumstances.
After the August 1, 2002 memo was made public, the DOJ knew it was indefensible. It was withdrawn as of June 1, 2004, and a new opinion, dated December 30, 2004, specifically rejected Yoo’s definition of torture, and admitted that a defendant’s motives to protect national security won’t shield him from prosecution. The rescission of the prior memo is an admission by the DOJ that the legal reasoning was wrong. But for the 22 months it was in effect, it sanctioned and caused the torture of myriad prisoners.
Yoo and other DOJ lawyers were part of a common plan to violate U.S. and international laws outlawing torture. It was reasonably foreseeable their advice would result in great physical or mental harm or death to many detainees. Indeed, more than 100 have died, many from torture. Yoo admitted recently he knew interrogators would take action based on what he advised.
Dick Cheney, Condoleezza Rice, Donald Rumsfeld, Colin Powell, George Tenet, and John Ashcroft met in the White House and micromanaged the torture by approving specific torture techniques such as waterboarding. Bush admitted he knew and approved of their actions.
They are all liable under the War Crimes Act and the Torture Statute. Under the doctrine of command responsibility, commanders, all the way up the chain of command to the commander in chief, are liable for war crimes if they knew or should have known their subordinates would commit them, and they did nothing to stop or prevent it. The Bush officials ordered the torture after seeking legal cover from their lawyers.
The President can no more order the commission of torture than he can order the commission of genocide, or establish a system of slavery, or wage a war of aggression.
A Select Committee of Congress should launch an immediate and thorough investigation of the circumstances under which torture was authorized and rationalized. The high officials of our government, and the lawyers who advised them, should be investigated and prosecuted by a Special Prosecutor, independent of the Justice Department, for their roles in misusing the rule of law and legal analysis to justify torture and other crimes in flagrant violation of our laws.
For the complete testimony, see C-Span Archives.
*****
Marjorie Cohn is a professor at Thomas Jefferson School of Law and the President of the National Lawyers Guild. She is the author of “Cowboy Republic: Six Ways the Bush Gang Has Defied the Law.”
Add comment May 8th, 2008
Senator Russ Feingold, the only senator to vote against the original Patriot Act, has an LA Times op-ed on the dangers posed by today’s secret laws and legal opinions, such as the long-secret Yoo torture memos. We are not a nation of laws if we don’t know the laws whereby our rulers are acting.
Government in secret
The Yoo memo is just one example of Bush’s hidden lawsBy Russ Feingold
May 8, 2008The Bush administration recently announced it will allow select members of Congress to read Justice Department legal opinions about the CIA’s controversial detainee interrogation program that have been hidden from Congress until now. But as the administration allows a glimpse of this secret law — and it is law — we are left wondering what other laws it is still keeping under lock and key.
It’s a given in our democracy that laws should be a matter of public record. But the law in this country includes not just statutes and regulations, which the public can readily access. It also includes binding legal interpretations made by courts and the executive branch. These interpretations are increasingly being withheld from the public and Congress.
Perhaps the most notorious example is the recently released 2003 Justice Department memorandum on torture written by John Yoo. The memorandum was, for a nine-month period in 2003, the law that the administration followed when it came to matters of torture. And that law was essentially a declaration that the administration could ignore the laws passed by Congress.
The content of the memo was deeply troubling, but just as troubling was the fact that this legal opinion was classified and its content kept secret for years. As we now know, the memo should never have been classified because it contains no information that could compromise national security if released. In a Senate hearing that I chaired April 30, the top official in charge of classification policy from 2002 to 2007 testified that classification of this memo showed “either profound ignorance of or deep contempt for” the standards for classification.
The memos on torture policy that have been released or leaked hint at a much bigger body of law about which we know virtually nothing. The Yoo memo was filled with references to other Justice Department memos that have yet to see the light of day, on subjects including the government’s ability to detain U.S. citizens without congressional authorization and the government’s ability to bypass the 4th Amendment in domestic military operations.
Another body of secret law involves the Foreign Intelligence Surveillance Act (FISA). In 1978, Congress created the special FISA court to review the government’s requests for wiretaps in intelligence investigations, which is — and should be — done behind closed doors. But with changes in technology and with this administration’s efforts to expand its surveillance powers, the court today is doing more than just reviewing warrant applications. It is issuing important interpretations of FISA that have effectively made new law.
These interpretations deeply affect Americans’ privacy rights, and yet Americans don’t know about them because they are not allowed to see them. Very few members of Congress have been allowed to see them either. When the Senate recently approved some broad and controversial changes to FISA, almost none of the senators voting on the bill could know what the law currently is.
The code of secrecy also extends to yet another body of law: changes to executive orders. The administration takes the position that a president can “waive” or “modify” a published executive order without any public notice — simply by not following it. It’s every president’s prerogative to change an executive order, but doing so without public notice works a secret change in the law. And, because the published order stays on the books, Congress and the public have no idea that it’s no longer in effect. We don’t know how many of these covert changes have been made by this administration or, for that matter, by past administrations.
No one questions the need for the government to protect information about intelligence sources and methods, troop movements or weapons systems. But there’s a big difference between withholding information about military or intelligence operations from the public and withholding the law that governs the executive branch. Keeping the law secret doesn’t enhance national security, but it does give the government free rein to operate without oversight or accountability. Even the congressional intelligence committees, which are supposed to oversee the intelligence community, have been denied access to some of these legal opinions.
Congress should pass legislation to require the administration to alert Congress when the law created by Justice Department opinions ignores or even violates the laws passed by Congress, and to require public notice when it is waiving or modifying a published executive order. Congress and the public shouldn’t have to wonder whether the executive branch is following the laws that are on the books or some other, secret law.
Sen. Russ Feingold (D-Wis.) is a member of the Senate Intelligence and Judiciary committees.
Add comment May 8th, 2008
[UPDATED: Corrected Sen. Hagel's party] Three key Senators — arl Levin (D-MI), Joe Biden (D-DE) and Chuck Hagel (R-NE) — have issued a letter calling for the Defense department and CIA Inspectors General to investigate allegations of forced drugging of detainees reported by the Washington Post and CQ last month. [See my commentary here.] While this call is welcome, it is unfortunate that they do not call for the appointment of an Independent Prosecutor, as the ACLU has done, rather than an in-house investigation. After all, these claims have been known for years now, and the Inspectors General have had adequate time to act. We now need to get investigations out of the mainstream Executive branch.
further, whoever conducts an investigation needs to be pressured to issue a public report on their findings. Only by getting this information out in the clear light of day can the American public take steps to see that these abuses don’t continue. Secret investigations are unacceptable at this point.
Here is the text of the Senator’s letter:
April 24, 2008
The Honorable Claude M. Kicklighter
Department of Defense
400 Army Navy Drive
Arlington , VA 22202-4704
By Facsimile & U.S. Mail
Dear Inspector General Kicklighter:
We are deeply concerned about the allegations reported in the April 23rd Washington Post article entitled Detainees Allege Being Drugged, Questioned regarding the alleged use of drugs on detainees to facilitate interrogations. They are the most recent in a series of allegations relating to the abuse and mistreatment of detainees in United States custody. Although such conduct is prohibited by U.S. law and international treaties and inconsistent with our national values, some similar allegations have since been confirmed by public reports.
As with other types of abuse, the forced administration of mind-altering drugs to facilitate interrogation appears to have been authorized by the legal analysis of John Yoo, then a lawyer in the Department of Justice’s Office of Legal Counsel. His memorandum authorizing such abuse reportedly overturned a decades-old U.S. ban on the use of mind-altering drugs to facilitate interrogation. President Bush recently confirmed in an interview with ABC News that the Administration’s overall interrogation policy was discussed by Cabinet level national security officials, and that the President himself was aware of these discussions.
The allegations reported in the Washington Post article warrant a thorough investigation by the Inspectors General of the Department of Defense and the Central Intelligence Agency. Investigation of alleged abuse and mistreatment of detainees is squarely within the purview of the Inspector General’s office.
Only by identifying and reforming policies and practices that violate United States law and international treaties and are inconsistent with our national values can we strengthen the international coalitions we need to fight terrorism, decrease the success of terrorists’ recruitment efforts, and restore America’s standing in the world. Thorough investigations are an important step in that process.
Joseph R. Biden, Jr.
Chairman
Senate Foreign Relations Committee
Carl Levin
Chairman
Senate Armed Services Committee
Chuck Hagel
Senior Member
Senate Select Intelligence Committee
Senate Foreign Relations Committee
Add comment May 8th, 2008
The sign of an authoritarian state:
Lawyers for Guantánamo Inmates Accuse U.S. of Eavesdropping
By William Glaberson
One lawyer for Guantánamo detainees said he replaced his office telephone in Washington because of sounds that convinced him it had been bugged. Another lawyer who represents detainees said he sometimes had other lawyers call his corporate clients to foil any government eavesdroppers.
In interviews and a court filing Tuesday, lawyers for detainees at Guantánamo said they believed government agents had monitored their conversations. The assertions are the most specific to date by Guantánamo lawyers that officials may be violating legal principles that have generally kept government agents from eavesdropping on lawyers.
“I think they are listening to my telephone calls all the time,” said John A. Chandler, a prominent lawyer in Atlanta and Army veteran who represents six Guantánamo detainees.
Several of the lawyers, including partners at large corporate law firms, said the concerns had changed the way they went about their work apart from Guantánamo cases. A lawyer in Chicago, H. Candace Gorman, said in an affidavit that she was no longer accepting new clients of any type because she could not assure them of confidentiality.
The new filing, by the Center for Constitutional Rights, came in a 2007 lawsuit under the Freedom of Information Act in which Guantánamo lawyers are seeking records to determine whether they have been targets of surveillance.
The Justice Department declined to comment Tuesday. But in a legal response in March, its lawyers said they could neither confirm nor deny that detainees’ lawyers had been targets of such surveillance “because doing so would compromise the United States Intelligence Communities sources and methods.”
Justice Department officials have said in the past that they had not used their terrorist surveillance powers to single out lawyers but that telephone “calls involving such persons would not be categorically excluded.”
Since 2001, lawyers representing terrorism suspects not being held at Guantánamo have said they suspected government eavesdropping. Justice Department officials have said they intercepted such lawyers’ conversations rarely and inadvertently.
But some detainees’ lawyers say they believe there may be a comprehensive effort to monitor their communications at Guantánamo and elsewhere.
In the Tuesday filing in United States District Court in Manhattan, Thomas B. Wilner, a partner at Shearman & Sterling, said government officials insisting on anonymity had told him twice that he “should be careful in my electronic communications.”
In addition to being a leading Guantánamo lawyer, Mr. Wilner is an international trade law specialist. “You need to be very careful in what you say on the telephone,” he said in an interview.
Ms. Gorman’s court filing said that during a visit to the Guantánamo naval base in Cuba, her military escort “referred in conversation to personal information about my family that I had not disclosed to him,” leaving her to wonder how that information had been obtained.
Several of the lawyers said a program of surveillance would be consistent with obstacles they had encountered in representing detainees. In 2004, officials proposed “real-time monitoring” of lawyers’ interviews with Guantánamo detainees.
A federal judge barred that, saying that listening to lawyers’ meetings failed to recognize “the exceptional place in the legal system of the United States” for attorney-client communications.
Guantánamo officials say they monitor attorney-client meetings for the safety of lawyers with video cameras but that meeting areas are not wired for sound.
But several lawyers said their clients had told them that shortly after detainees met with lawyers, interrogators had asked the detainees about topics that had been discussed.
The Guantánamo spokeswoman, Cmdr. Pauline A. Storum, said interrogators were trained not to inquire about attorney-client meetings.
Shayana Kadidal, the lawyer at the Center for Constitutional Rights handling the freedom of information case, said there were many practical consequences of surveillance concerns. For example, he said, lawyers challenging the Bush administration’s detention policies must travel worldwide for meetings with witnesses to avoid potential telephone or e-mail monitoring.
Jonathan Hafetz of the Brennan Center for Justice at New York University represents two brothers from Qatar, Jarallah al-Marri, who is held at Guantánamo, and Ali Saleh Kahlah al-Marri, who is held at the navy brig in Charleston, S.C., the only person on the American mainland known to be held as an enemy combatant.
After 16 months during which Ali al-Marri was held incommunicado, Mr. Hafetz was permitted to discuss the case with him. In 2006, Mr. Hafetz said, a guard commander told Mr. Marri that he had to speak in English during a conversation with his lawyer.
Mr. Hafetz wrote government officials asking whether the English-only requirement indicated that his conversations with his client were being monitored.
Mr. Hafetz said the commander of the brig later said there was no military surveillance. Mr. Hafetz said he never received a response about whether other agencies had listened to their conversations.
These attorneys, who take the rule of law seriously enough to risk everything in its pursuit, are among the heroes of our times.
Add comment May 7th, 2008
Today is the 38th anniversary of the Kent State massacre of four antiwar students by National Guard troops. One seldom hears about those troops, but I suspect that, like the protesting students and their families, they still have nightmares on this day. They should never have been sent to a college campus fully armed. Those who sent them bear the major responsibility for the murders.
[h/t Crooks and Liars.]
Add comment May 5th, 2008
I was busy on Thursday and succeeding days. But I want to at least acknowledge the momentous event that occurred on May Day. The West Coast longshoremen shut down all West Coast ports in protest of the Vietnam Iraq war. If you haven’t already, go Watch, listen to, or read the Democracy Now! interview with union official Jack Heyman. We can only hope that this strike is portent both of a revitalized labor movement and of increasing engagement of labor in attempts to end this war. After all, the vast resources spent on this war are depleting the resources available for all the other vital needs in this country. And it is workers who do most of the fighting. Further, the threat of internal resistance to the war is one of the best brakes the populace can put upon the war-makers planning the next war.
Add comment May 5th, 2008
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