Posts filed under 'Bush administration'

Philadelphia Inquirer: Investigate torture crimes

The Philadelphia Inquirer editorializes in favor of a criminal investigation of CIA-Bush Administration torture:

But Was It a Crime?

Even after ruling against charging the CIA officers who destroyed videos of the brutal interrogation of terrorism suspects, a special prosecutor should still answer the critical question of whether crimes were depicted on the tapes. The long-delayed decision to forgo prosecuting anyone over the tapes’ destruction was disappointing, but at least it’s a hopeful sign that Justice Department officials say the investigation continues into whether agents resorted to illegal torture.

This is a case where the possible crimes are far more important than any cover-up.

The tactics reportedly depicted on the tapes included waterboarding, which simulates drowning, along with a host of other harsh interrogation methods used on detainees in secret CIA prisons overseas.

Conducted during the Bush administration with the approval of Justice Department lawyers, the program of harsh interrogations was curtailed by then-President George W. Bush. President Obama banned torture tactics upon taking office.

As the CIA’s chief operative involved in destroying the tapes, then-clandestine services director Jose A. Rodriguez Jr. certainly conveyed the impression that the tactics on the videotapes were deeply troubling. They “would make us look terrible,” Rodriguez said in an e-mail released by federal officials in response to a filing by the American Civil Liberties Union.

Indeed, what’s already known about CIA interrogations is enough to turn anyone’s stomach: 9/11 mastermind Khalid Sheikh Mohammed, waterboarded 183 times; accused terrorist Abu Zubaydah, 83 times.

Other tactics, including slamming suspects’ heads into walls, stripping prisoners, and keeping them awake for hours, were also sanctioned at the highest levels – even by Bush himself, the former president admits in his new memoir, Decision Points.

Until now, the official government version has been that the tactics never exceeded the guidelines set down by Justice Department and White House lawyers.

But Attorney General Eric H. Holder Jr. expanded the purview of special prosecutor John Durham to include whether agents illegally tortured detainees.

Deciding that issue remains vital to restoring U.S. prestige as a nation that – no matter how much its safety is threatened – will always live by the rule of law.

November 15th, 2010

Lithwick: “We are all water-boarders now.”

Dahlia Lithwick writes in Slate of our country’s move to celebrate torture:

Interrogation Nation
The baby steps that have taken the United States from decrying torture to celebrating it.

By Dahlia Lithwick

The old adage held that if they couldn’t get you for the crime, they would get you for the coverup. But this week, it was revealed that both the crime and the coverup will go permanently unpunished. Which suggests that everything in between will go unpunished as well.

In an America in which the former president can boast on television that he approved the water-boarding of U.S. prisoners, it can hardly be a shock that following a lengthy investigation, no criminal charges will be filed against those who destroyed the evidence of CIA abuse of prisoners Abu Zubaydah and Abd al-Rahim al-Nashiri.* We keep waiting breathlessly for someone, somewhere, to have a day of reckoning over the prisoners we tortured in the wake of 9/11, without recognizing that there is no bag man to be found and that therefore we are all the bag man.

President Barack Obama decided long ago that he would “turn the page” on prisoner abuse and other illegality connected to the Bush administration’s war on terror. What he didn’t seem to understand, what he still seems not to appreciate, is that what was on that page would bleed through onto the next page and the page after that. There’s no getting past torture. There is only getting comfortable with it. The U.S. flirtation with torture is not locked in the past or in the black sites or prisons at which it occurred. Now more than ever, it’s feted on network television and held in reserve for the next president who persuades himself that it’s not illegal after all.

In his new memoir, Decision Points, former President George W. Bush boasts that he not only granted his permission to water-board detainees but did so cowboy-fashion—with the words “Damn right.” This admission has elicited barely a ripple of self-doubt among an American public that reconciled itself long ago to the twin propositions that torture can sometimes be legal and that every terror suspect is always a ticking time bomb. Bush’s contention that American torture “helped break up plots to attack American military and diplomatic facilities abroad, Heathrow airport and Canary Wharf in London, and multiple targets in the United States,” has been largely rejected by British officials. (You may recall that earlier claims that Bush-era torture of Khalid Sheikh Mohammed led to the interruption of a plot to crash planes into the Library Tower in Los Angeles, were roundly debunked by my colleague Timothy Noah, who has shown that the Library Tower plot was disrupted in 2002, before the United States had even captured KSM, much less begun to torture him.)

But even the repeated assertions that torture saved American lives in this or that unfalsifiable international terror scenario is beside the point, as Ronald Reagan’s former Solicitor General Charles Fried has argued inBecause It Is Wrong, a book co-authored with his son Gregory Fried. They argue that torture is immoral and illegal and that it has degraded and shamed this country. As the Frieds vividly demonstrate in their book, for all that torture hurts our enemies, it invariably hurts us even more. And as Charles Fried reminded an Australian newspaper again today, the illegality of water-boarding isn’t a close call, even though we have come to call it “simulated drowning” or “enhanced interrogation.” It has been a crime for decades: “In the past we have prosecuted American soldiers who engaged in the equivalent of waterboarding. We have also prosecuted German and Japanese commandants who ordered it. Some were even executed.”

British papers may claim that there will be legal repercussions following Bush’s admissions, but the truth is that the Bush spin on the old Nixonian formulation for presidential conduct—it’s legal if my lawyer tells me it’s legal—has become the law of the land. Indeed, it’s exactly the formulation used by Jose Rodriguez, the man who ordered CIA officials to destroy videotapes showing prisoners being abused: His lawyers said he could. As Nan Aron explains, the “my lawyer ate it” defense has been deemed illegal since Nuremburg. Now it’s a get-out-of-jail-free card.

Eric Holder and Barack Obama have taken pains to tell the American people that water-boarding is illegal torture. So what? That’s just their opinion. President Bush disagrees. The persistent failure to hold anyone accountable at any level for years of state-sanctioned abuse speaks louder than their words. It has taken this issue from a legal question to a matter of personal taste. What we choose to define as torture is now just another policy disagreement, like extending the Bush tax cuts or picking a caterer. This is precisely the kind of sliding-scale ethical guesswork the rule of law should preclude.

Those of us who have been hollering about America’s descent into torture for the past nine years didn’t do so because we like terrorists or secretly hope for more terror attacks. We did it because if a nation is unable to decry something as always and deeply wrong, it has tacitly accepted it as sometimes and often right. Or, as President Bush now puts it, damn right. It spawns a legal regime that cannot be contained in time or in place; a regime that requires that torture testimony be used at trials and that terror policies be withheld from public scrutiny. It demands the shielding of torture photos and the exoneration of those who destroyed torture tapes just a day after the statute of limitations had run out. Indeed, as Andrew Cohen notes, when the men ordering the destruction of those tapes are celebrated as “heroes,” who’s to say otherwise? Check, please.

All this was done in the name of moving us forward, turning down the temperature, painting over the rot that had overtaken the rule of law. Yet having denied any kind of reckoning for every actor up and down the chain of command, we are now farther along the road toward normalizing and accepting torture than we were back in November 2005, when President Bush could announce unequivocally (if falsely) that “The United States of America does not torture. And that’s important for people around the world to understand.” If people around the world didn’t understand what we were doing then, they surely do now. And if Americans didn’t accept what we were doing then, evidently they do now. Doing nothing about torture is, at this point, pretty much the same as voting for it. We are all water-boarders now.

Correction, Nov. 11, 2010: This article originally misspelled Abd al-Rahim al-Nashiri’s name. (Return to the corrected sentence.)

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Dahlia Lithwick is a Slate senior editor. Follow her on Twitter.

November 13th, 2010

Jon Stewart: Bush is a war criminal, but don’t say so

Jon Stewart, in pursuit of the “civility” that would end his show, admitted to Rachel Maddow that George W. Bush “technically” was a “war criminal,” but feels it too impolite to say so.

“You’ve said, ‘Bush is war criminal.’ Now that may be technically true. In my world ‘war criminal’ is Pol Pot or the Nuremberg trials,” Stewart replied.

“I think that’s such an incendiary charge that when you put it into a conversation: ‘Well technically he is.’ Well that may be right but it feels like a conversation stopper, not a conversation starter.”

So “civility” means suppressing truths in order to continue conversations with those supporting “war criminals.” Rich!

Don’t get me wrong. I agree that there are times when it may be counterproductive to use the phrase “war criminal” to describe Bush. But it is absurd to make suppression of the truth a principle worth rallying about.

All of this was by way of Stewart explaining the equivalence between the serial liars of Fox News and those on the “left” who utter truths that others don’t want to hear. If that’s what Stewart supports, it’s terribly dissapointing.

1 comment November 12th, 2010

McGovern on the Bush torture boast

Ray McGovern comments on Bush’s torture boasting, and the silence by the Fawning Corporate Media, as he calls them:

Torture Sans Regrets
Bush Boasts About Waterboarding

By Ray McGovern

Former President George W. Bush continues to be beyond shame. Those favored with an advance copy of his memoir, Decision Points, say it paints a picture of a totally unapologetic Bush bragging, for example, about authorizing the CIA to waterboard 9/11 “mastermind,” Khalid Sheikh Mohammed.

According to newspaper accounts of the memoir, Bush says he was asked by the CIA for permission to subject KSM to the technique that creates the sensation of imminent drowning. His response was: “Damn right.”

For such a frank admission of high-level criminality, we can say, with ample justification, Shame on Bush. But that shame also sticks like Saran wrap to the rest of us – and especially to the Fawning Corporate Media (FCM), which has soft-pedaled the significance of Bush’s confession, and to his make-nice successor, Barack Obama, who has refused to demand any accountability.

However, if we are still a democracy, we are all complicit.

I don’t much care if this sounds judgmental. You see, I was alive during World War II when there was torture galore; then it was considered a grave offense. The Nuremberg Tribunals tried and convicted Germany’s leaders for torture and other war crimes. In the war’s aftermath, there were a very few serious people arguing that the world should simply look forward, not backwards.  The vast majority knew there had to be a reckoning, even amid the many serious crises that were facing a war-ravaged world.

The chief U.S. prosecutor at Nuremberg, Supreme Court Justice Robert H. Jackson, insisted that the civilized world had no choice but to demand justice. He looked the Nazi leaders straight in the eye and told the court:

“No charity can disguise the fact that the forces which these defendants represent … are the darkest and most sinister force in society,” Jackson said. “By their fruits we best know them. Their acts have bathed the world in blood and set civilization back a century.  They have subjected their European neighbors to every outrage and torture. …

“The real complaining party at your bar is civilization. … Civilization asks whether law is so laggard as to be utterly helpless to deal with crimes of this magnitude by criminals of this order of importance.”

The prescient Jackson foresaw a time when not just the vanquished Nazis, but also America’s own leaders might deserve to be put in the dock:

“But the ultimate step in avoiding periodic wars … is to make statesmen responsible to law. And let me make clear that while this law is first applied against German aggressors, the law includes, and if it is to serve any useful purpose it must condemn, aggression by any other nations, including those which sit here now in judgment.”

Beyond Nuremberg

Sadly, it is now clear that U.S. officials do not believe they should be held to that universal standard, and that the Nuremberg principles and other international laws need not apply to decisions emanating from the White House.

Rather than facing a stern judgment for his criminal actions, including approving torture and authorizing aggressive war against Iraq, George Bush is about to be lionized in Dallas over his presidential library, in bookstores for his memoir, and in the FCM. Two articles in the New York Times’ “Week in Review” section on Sunday cited Bush’s memoir as a possible turning point for Americans viewing the ex-President more favorably. Neither article made any mention of Bush’s “Damn right” admission of ordering torture.

Reporter Peter Baker wrote, “Perhaps it is time to think about whether America has begun to reconsider its 43rd president.” Columnist Maureen Dowd faulted “W’s decision-making” but said “his story-telling is good.”

In his memoir, Bush exudes confidence that he can achieve the resurrection of his popularity even as he boasts about his role on torture. It was a mark of almost inconceivable hubris that he would callously admit, this time in writing, his authorization of waterboarding.

But he did make that admission, which lobs the ball into our court as American citizens. It is indeed time for the kind of judgment Justice Jackson envisioned, not a celebratory book tour. Nor is it time for breaking ground on a new presidential library to further cover up crimes and falsehoods under a veneer of neo-con “scholarship.” (Progressives in Dallas have taken to calling Bush’s new structure a “lie-bury.”)

Bush’s confidence – or arrogance – can be traced, in part, to the power and tenacity of his acolytes, especially the neocons who remain very influential in Washington.

But blame also must fall on cynical politicians, especially in the House of Representatives, who thought they could maximize Democratic gains in 2006 and 2008 by ignoring their solemn oath to honor the Constitution of the United States. Forget the Founders, who took great pains to incorporate in the Constitution an orderly process for impeaching and removing senior officials guilty of high crimes and misdemeanors, foreseeing a time when that might be required.

The timid, calculating Democratic leadership wimped out when it had the chance – actually, when it had a Constitutional as well as moral obligation – to investigate, to build public support for action, and to hold Bush accountable.

Misguided Appeasement

Now, with the Republicans “shellacking” the Democrats on Nov. 2 and returning to power in the House, here’s a question for the outgoing Speaker Nancy Pelosi and her main malleable man, Judiciary Committee chair John Conyers: How’s all that appeasement workin’ for ya?

Shame, as well, on the Fawning Corporate Media (FCM) for joining Bush and Vice President Dick Cheney in stoking the hysteria that set the stage for the torture and then for caving in to White House pressure to avoid calling torture torture.

Last but hardly least, shame on Bush’s timid successor. Every time I hear that Obama is a former professor of Constitutional law I find myself muttering, “And that would be the constitution of which country?” The President’s soaring rhetoric falls flat fast the moment you stop to ponder how he has betrayed his oath to see to it that the laws are faithfully executed — in this case, by holding self-confessed torturers accountable.

Shame, too, on those of us who decide to remain silent as Bush openly brags about how he personally approved the use of controlled-drowning for interrogation. The Spanish Inquisitors who applied for the first patent on waterboarding had no qualms calling it what it is — tortura de agua.

“Unequivocally torture” is how U.S. Brigadier General David Irvine described waterboarding, after teaching POW interrogation and military law for 18 years.

Signs of the Times

Before some of the revelations of the Bush book hit the media last week, I had been wondering how much light, if any, the memoir would shed on what Bush euphemistically labeled an “alternative set of procedures for interrogation.”

Call me naïve, but I had found it too much of a stretch to visualize a former president of the United States admitting in writing to having ordered waterboarding, the same technique for which Japanese and American soldiers have been tried, convicted and punished.

I am now trying to come to grips with the notion that I have been living in the past, the kind of past that Bush lawyer Alberto Gonzales would call “quaint” and “obsolete” (adjectives he applied to the Geneva Conventions), a past inspired by the Nuremberg principles, where there was at least a modicum of respect for the law—and such a thing a shame.

For over five months now, I have been unable to get out of my head the photo of a relaxed, tuxedo-clad George W. Bush in an arm-chair being interviewed after a speech in Grand Rapids, Michigan, on June 2. He says nonchalantly:

“Yeah, we waterboarded Khalid Sheikh Mohammed. I’d do it again to save lives.” [But waterboarding doesn’t save lives—just the opposite; see below.]

Cavalier Torturer

Since I had not been able to shake that insipid image of the cavalier torturer in the armchair, there is little excuse for my being surprised at what Bush writes in his memoir about his role in ordering torture and the pride he takes in having done so.

I should have been fully prepared for Decision Points, in which the counterfeit cowboy assumes the very same posture of in-your-face-and-what-are-you-going-to-do-about-it-when-even-the-wimps-sworn-to-enforce-the-law-are-too-timid-to-do-so.

I have seen much change in the body politic since I arrived in Washington, DC, almost 48 years ago. There is one change, however, that dwarfs all others in significance. It is that the country no longer has, in any real sense, a free media. Read Jefferson and Madison on the importance of a free media to preserving a democracy and you will be reminded of how very BIG this change really is.

Don’t believe me?  This coming week, watch how the media gives George W. Bush a stay-out-of-jail pass as he starts to peddle his lie-infested memoir on TV and in bookstores. Watch how the moneyed interests he served lionize him at the groundbreaking for Bush’s “Presidential Center” in Dallas on Nov. 16.

The accomplices of the FCM can be counted on to suppress the truth about Bush and about their own complicity in cheerleading for war, torture and the rest. As is well known, cheerleading is a team effort demanding equal enthusiasm by all.

Maybe this is the real reason why NBC chose this particular time to put Keith Olbermann on leave without pay. Olbermann would never quite “get with the program.”

Unlike most of his pundit colleagues, he was uncomfortable buying into the wisdom of Nazi propaganda minister Joseph Goebbels, who famously said:

“If you tell a lie big enough and keep repeating it, people will eventually come to believe it…It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.”

How does the Big Lie technique translate to today? Simple. We will be getting a steady diet of this kind of punditry: waterboarding is merely something that a bunch of liberals associate with torture. And, besides, we waterboarded some of our own servicemen to show them what it was like (as if no one has the mental capacity to distinguish between a demonstration and the real thing). And, Bush’s confidence was bolstered by the results of his painstaking efforts to acquire guidance from both the legal and the medical profession. Right?

And most of the lawyers and doctors of this great country will keep silent — even in the face of that kind of provocation.

Media Attention

With the book not yet formally released, it has been easier for the FCM to give Bush’s bragging on waterboarding relatively little attention.

Last Thursday, after Bush’s comment on torture hit the news, the Washington Post, to its credit, ran on page two a report by staff writer R. Jeffrey Smith titled “Bush says in memoir he approved waterboarding.” Smith even noted in his first paragraph that “simulated drownings [are] a practice that many international legal experts say was illicit torture.”

Smith highlights Bush’s admission that he answered, “Damn right,” when CIA thugs asked permission to waterboard “9/11 mastermind” Khalid Sheikh Mohammed for the first of 183 times, and indicates that Bush repeated the mantra that he would decide the same way again “to save lives.”

That was Thursday.  On Sunday the Post hastened to inject the customary “balance” with a long panegyric defending George W. Bush from “Five Myths” spread by “liberals” and other recalcitrants unwilling to give him his due.

Did you know, for example, that Bush was “personally invested in compassionate conservatism?” And that his “experience as a born-again Christian led him to empathize with individuals’ personal struggles and to respect the role of religion in civic life?” So writes Professor Julian Zelizer of Princeton, whom the Post apparently paid bucks for “balance.”

The Post must have given Zelizer an advance copy of Decision Points, since his 1,250-word essay dominating page three of Sunday’s Washington PostOutlook section was occasioned by the soon-to-be-unveiled memoir and shows he has read it carefully. Zelizer does not mention Bush’s comments on authorizing waterboarding — presumably because that can no longer be dismissed as a “myth.”

As for the bit about Bush being a born-again Christian, this reminded me of another Bush admirer, his father, telling the media shortly after 9/11 that his son George had read straight through the Bible — twice!

Yep; two times! But did he miss, twice, “Thou Shalt Not Kill?” Or Jesus’s instructions to his followers to love your enemy and to treat others as you yourself would want to be treated? Does he need an exegete to unpack those pronouncements?

Favorite Bumper Sticker

To assist with his continuing theological education—and help him keep in mind a key passage, I shall try to give the former president my favorite bumper sticker when I see him at the groundbreaking in Dallas. It reads:

“When Jesus said Love Your Enemies I think he probably meant not to kill them.”

Or torture them.

Meanwhile, the New York Times continues to steer well clear of any such suggestion that waterboarding might be torture. That it had had ample opportunity to read and digest an advance copy of the book was clear on Nov. 4 when it published a 1,700-word article by star reviewer, Michiko Kakutani.

Kakutani was super-careful. Her only allusion to what Bush wrote on waterboarding is buried in one sentence sandwiched into dead center between the revelation that detainees at Guantanamo Bay had access to “an Arabic translation of ‘Harry Potter’” and vapid comments on the economic meltdown. There she inserted Bush’s claim that there would have been “a greater risk that the country would be attacked,” had he not authorized waterboarding.

As for George W. Bush’s faith, Kakutani gives pride of place to Bush’s agonizing choice between religion and alcohol, quoting from the memoir: “Could I continue to grow closer to the Almighty or was alcohol becoming my god?”

(With all due respect, had I known earlier what direct instructions Bush would later claim he got from being close to the “Almighty,” I would have sent him a monthly carton of whatever whiskey they drink down there in Texas.)

In Sunday’s Times, Peter Baker’s article offers a generally flattering portrayal of Bush and his book; Baker also neglects to mention Bush’s “Damn Right” approval of waterboarding. Instead, he notes plaintively that “a good portion” of Americans “still revile him for invading Iraq, waterboarding terror suspects and presiding over the worst financial crisis since the Great Depression.”
Picky, picky, that portion of Americans!

“And yet” are the familiar words Baker, and Professor Zelizer, use to start their various exculpatory paragraphs. No one should be surprised to see the “and yet’s” dominate media coverage this week, when major promotion of the book gets under way. (That’s assuming anyone is so impolite as to ask about waterboarding/torture.)

Baker finishes his article with a familiar sentiment from Bush: “Whatever the verdict on my presidency, I’m comfortable with the fact that I won’t be around to hear it.” At least the man is consistent. Interviewing Bush for his panegyric, Bush at War, Bob Woodward asked then-President Bush what he anticipated with respect to his place in history. “History, we’ll all be dead,” was Bush’s reaction.

Caring Less…

I’d like to ask Peter Baker why he decided to tuck that particular quote onto the end of his Times article on Sunday. Does he perhaps think it cute to have had a President who couldn’t care less? Or what?

As for Bush himself, I suppose he does not feel there is much danger from the possibility that some writer might prepare an objective, truthful portrayal of his tenure in office any time soon. No doubt he takes reassurance from the virtual certainty that the FCM would drown any such author in decibels. And should someone suggest Bush be prosecuted for war crimes, as he should be, that person would likely be sent off to do penance with Keith Olbermann. (So glad I do not have to depend on the FCM to earn a living.)

…and Making Stuff Up

As for Khalid Sheikh Mohammed, according to Reuters, Bush claims KSM was “difficult to break” but that waterboarding did the trick. “He disclosed plans to attack American targets with anthrax…among other breakthroughs,” writes Bush.

There he goes again, making stuff up. There is nothing to support that claim, and lots to refute it. For example, David Rose, a serious investigative journalist writing two years ago for Vanity Fair, conveyed the appraisal of a former senior CIA officer who read all the reports on Mohammed’s interrogation.

His verdict?  “Ninety percent of it was total “bullsh*t.” In addition, a former Pentagon analyst told Rose that the interrogation of Mohammed produced no actionable intelligence.

KSM himself has boasted derisively about sending CIA and FBI agents scurrying around the world on wild-goose chases, following up on the “leads” he gave them. I imagine that, by his 183rd waterboarding session, KSM may have identified terrorists he claimed were responsible for global warming.

Other of the Bush’s claims are demonstrably false — contradicted by the FBI, for example. Bush repeats the old saw about KSM yielding information leading to the capture of one of his top aides, Ramzi bin al-Shibh. But that information came from a different terrorist operative who was interviewed using traditional, legal methods.

The So-What Yawns

By and large, the “so-what” yawns that have greeted the initial reporting on torture is further testimony to the sorry fact that raw fear can lead to the forfeiture of the ability of Americans to distinguish between right and wrong — even regarding heinous offenses like torture. Sadly, this is made all the easier by the craven silence of the institutional churches and synagogues which, with very few exceptions, cannot find their voice — just as the Catholic and Lutheran churches could not find theirs during the Thirties in Germany.

Behind the stained glass, the end can now be subtly seen to justify the means, if that’s what it takes to head off contentiousness in the church community and keep pews and collection plates full. Anything goes; whatever is necessary to “keep us safe” is the mantra.

If a rare (prophetic) voice does enter the dialogue with a reminder that many of the prophets, including Jesus of Nazareth, were tortured to death, that voice is quickly silenced. Can’t you see? This is different; the terrorists hate us and are out to kill the lot of us.

What rankles most is the success Bush and Cheney have had, with the corporate media support on which they depend, in stoking Americans’ fear to the point where waterboarding and other forms of torture have become widely accepted as necessary to “keep us safe.”

Hidden is the supreme irony that torture has been doing just the opposite. In fact, it has proven the most powerful fillip to violence against us. Now who should find that surprising? Bush’s policy on interrogation has been directly linked by U.S. interrogators to the killing of American troops — in Iraq, for example.

The senior U.S. Air Force interrogation specialist who uses the name Matthew Alexander and who conducted more than 300 interrogations in Iraq and supervised over 1,000 more lamented those additional killings, “It’s a hard pill to swallow, but true.” Alexander, a Bronze Star awardee, says that as many as 90 percent of the foreign fighters captured in Iraq said they joined the fight against the U.S. because of the torture conducted at Abu Ghraib and Guantanamo.

Former General Counsel to the Navy Alberto Mora made the same point in testimony before Congress:

“There are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq — as judged by their effectiveness in recruiting insurgent fighters into combat — are, respectively, the symbols of Abu Ghraib and Guantanamo.”

It is a given, then, that the Bush torture policy made Americans less — not more — safe.

Getting Desired Answers

Are waterboarding and other harsh interrogation techniques “highly effective,” as Bush reportedly claims in his memoir? The short answer is No.
On Sept. 6, 2006, the very day Bush first bragged publicly about his “alternative set of procedures for interrogation” and appealed for legislation allowing the CIA to continue using them, the then head of Army intelligence, Lt. Gen. John Kimmons, took a very different tack.

Conducting a Pentagon briefing shortly before the President gave his own speech on the other side of the Potomac, Kimmons underscored the fact that the revised Army manual for interrogation is in sync with the Geneva treaties.

Then, conceding past “transgressions and mistakes,” Kimmons updated something I learned 48 years ago as a second lieutenant in Army infantry/intelligence:

“No good intelligence is going to come from abusive practices. I think history tells us that. I think the empirical evidence of the last five years, hard years, tells us that.”

Grabbing the headlines the following day was Bush’s admission that the CIA has taken “high-value” captives to prisons abroad for interrogation using “tough” techniques prohibited by the revised Army field manual — and by Geneva, for that matter. Gen. Kimmons displayed uncommon courage in facing into that wind.  Too bad our political leaders are afraid to follow his example.

Question: If Bush’s “alternative set of procedures for interrogation” adds to the queuing in front of terrorist centers, so to speak, and if they don’t yield good intelligence, why use them? Former FBI Special Agent/Attorney Coleen Rowley and I have co-authored articles for Consortiumnews.com, which address this very understandable question.  Let me refer you especially to “‘Justifying’ Torture: Two Big Lies.”

Briefly, if your aim is to extract untruthful information (like “intelligence” on those non-existent but close ties between al-Qaeda and Iraq, remember?), nothing works better than torture. If you want to intimidate real or imagined troublemakers, torture is a natural for proving that what Lord Acton said about absolute power is horribly real.

And, if you have a streak of sadism, harsh interrogation techniques can give grand release.

You are not likely to have seen much in the FCM about Bush’s bent toward sadism. Justin Frank, MD, psychiatrist and professor at George Washington University, who authored Bush on the Couch, has helped us veteran intelligence officers explore the implications.  Dr Frank explains:

“Bush’s certitude that he is right gives him carte blanche for destructive behavior. He has always had a sadistic streak: from blowing up frogs, to shooting his siblings with a b-b-gun, to branding fraternity pledges with white-hot coat hangers.

“His comfort with cruelty is one reason he can be so jocular with reporters when talking about American casualties in Iraq. Instead of seeing a president in anguish, we watch him publicly joking about the absence of ‘weapons of mass destruction’ in Iraq, in the vain search for which so many young Americans died.”

Patchwork of False Beliefs

The following excerpt is from a Veteran Intelligence Professionals for Sanity memorandum of July 27, 2007, which included some additional observations with regard to how Bush looks at truth, as suggested by Dr. Frank: “Dangers of a Cornered Bush”:

“His pathology is a patchwork of false beliefs and incomplete information woven into what he asserts is the whole truth… he lies — not just to us, but to himself as well…What makes lying so easy for Bush is his contempt — for language, for law, and for anybody who dares question him…. So his words mean nothing. That is very important for people to understand.”

A useful reminder as Bush comes back into public view in the coming weeks.
Torture is not wrong just because there are laws against it. There are laws against it because it is wrong. Intrinsically wrong; always wrong — like genocide, rape, slavery. And as one scholar put it, “to acknowledge that waterboarding is torture is like conceding that the sun rises in the east.”
President Obama and Attorney General Eric Holder have each said that waterboarding is torture. But, sadly, neither has the guts to look in the rear-view mirror and do what the Constitution and common decency require.

In the wake of World War II, civilized nations came to a general consensus on all this, and the ensuing laws and international conventions reflected that consensus. George Bush is simply the most visible leader to employ lawyers and doctors — and even a stray theologian here and there — to help him carve out exceptions to that consensus.

True, on occasion a moral theologian will summon the courage to speak out. Professor William Schweiker of the Chicago Divinity School, for example, has heaped scorn on the familiar scenario of the lone knower of the facts whose torture is thought to be able to save millions of lives. He notes that such is “the stuff of bad spy movies and bad exam questions in ethics courses.”
With specific reference to waterboarding, Schweiker admonishes Christians, in particular:

“Not to fall prey to fear and questionable reasoning and thus continue to support an unjust and vile practice that demeans the nation’s highest political and moral ideals, even as it desecrates one of the most important practices and symbols (Baptism) of the Christian faith.”

From the Professional Military

Interrogator Matthew Alexander reports,

“I have been contacted by World War II veterans who were outraged that the Bush administration so easily dismissed the American principles that millions of veterans gave their lives to defend. They pointed out what I have said all along: we cannot become our enemy in trying to defeat him.”

World War II General George C. Marshall warned,

“Once an Army is involved in war, there is a beast in every fighting man which begins tugging at its chains. … A good officer must learn early on how to keep the beast under control both in his men and in himself.”

And in 1775, as the birth of America hung in the balance, General George Washington said,

“Should any American soldier be so base and infamous as to injure any prisoner…by such conduct they bring shame, disgrace and ruin to themselves and their country.”

With George W. Bush’s “Damn right” permission to waterboard – and the FCM’s flaccid response – America has certainly come a long way. Again, I believe we are all complicit—and that would be doubly so, if we emulate the passive stance of the “good Germans” of the Thirties.

Bush has brought the issue of torture to a head. Shame on us all, if we allow the recent history of waterboarding and other torture techniques to go unchallenged and to end up defining us.

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Ray McGovern was an Army officer and CIA analyst for almost 30 year. He now serves on the Steering Group of Veteran Intelligence Professionals for Sanity. He is a contributor to Imperial Crusades: Iraq, Afghanistan and Yugoslavia, edited by Alexander Cockburn and Jeffrey St. Clair (Verso). He can be reached at: rrmcgovern@aol.com

November 8th, 2010

Worthington on Bush’s torture brag

Andy Worthington has a detailed analysis of the pro-torture claims made by former President Bush in his new memoir:

No Appetite for Prosecution
In Memoir, Bush Admits He Authorized the Use of Torture, But No One Cares

By Andy Worthington

With just days to go before George W. Bush’s memoir, Decision Points, hits bookstores (on November 9), and with reports on the book’s contents doing the rounds after review copies were made available to the New York Times and Reuters, it will be interesting to see how many media outlets allow the former President the opportunity to try to salvage his reputation, how many are distracted by his spat with Kanye West or his claim that he thought about replacing Dick Cheney as Vice President in 2004, and how many decide that, on balance, it would be more honest to remind readers and viewers of the former President’s many crimes — including the illegal invasion of Iraq, and the authorization of the use of torture on “high-value detainees” seized in the “War on Terror.”

As I fall firmly into the latter camp, this article focuses on what little has so far emerged regarding the President’s views on Guantánamo, and, in particular, on his confession that he authorized the waterboarding of “high-value detainee” Khalid Sheikh Mohammed, which is rather more important than trading blows with a rapper about whether or not his response to the Katrina disaster was racist, as it is a crime under domestic and international law.

On Guantánamo

On Guantánamo, the only comments in the book that have so far emerged are insultingly flippant, which is disgraceful from the man who shredded the Geneva Conventions and authorized an unprecedented program of arbitrary detention, coercive interrogation and torture. In addition, Bush’s baleful legacy lives on in the cases of the 174 men still held, in the recent show trial of Omar Khadr, and in the complacency regarding the basis for detaining prisoners of the “War on Terror” — the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks — on which Barack Obama continues to rely, despite its formidable shortcomings.

As Michiko Kakutani explained in a review of the book for the New York Times:

He tries to play down the problems of Guantánamo Bay, writing that detainees were given “a personal copy of the Koran” and access to a library among whose popular offerings was “an Arabic translation of Harry Potter.”

On torture

On torture, however, Bush remains as casual about authorizing waterboarding (a form of controlled drowning used on at least three “high-value detainees” held in secret CIA prisons), as he did in June this year, when he told the Economic Club of Grand Rapids, Michigan, “Yeah, we waterboarded Khalid Sheikh Mohammed. I’d do it again to save lives.”

In his book, he writes that his response, when asked if he would approve the waterboarding of Khalid Sheikh Mohammed, was, “Damn right!” He added,  “Had I not authorized waterboarding on senior al-Qaeda leaders, I would have had to accept a greater risk that the country would be attacked.”

On Thursday, Reuters revealed more about the passages in the book in which Bush discusses waterboarding. This largely revisits the scenario as he described it in a press conference in September 2006, when Khalid Sheikh Mohammed, Abu Zubaydah and Abd al-Rahim al-Nashiri (the three men waterboarded by the CIA), plus 11 other “high-value detainees,” were transferred to Guantánamo from the secret CIA prisons whose existence, until that moment, had been strenuously denied by the administration.

On that occasion, he spoke at length about Abu Zubaydah, the supposed “high-value detainee” for whom the torture program was specifically developed, who, according to the “torture memos” released last year (written by lawyers in the Justice Department’s Office of Legal Counsel in 2002 and 2005) was waterboarded 83 times.

Revisiting his claims that, “When Abu Zubaydah stopped answering questions from the FBI, CIA Director George Tenet told Bush he thought the detainee had more information to offer” (as Reuters described it), Bush explains that “CIA and Justice Department lawyers conducted a careful legal review and came up with an ‘enhanced interrogation program,’ which he said complied with the US Constitution and all applicable laws, including those that ban torture.”

“No doubt the procedure was tough, but medical experts assured the CIA that it did no lasting harm,” Bush writes, adding that the methods were “highly effective,” and that Abu Zubaydah “revealed large amounts of information about al-Qaeda’s structure as well as the location of Ramzi bin al-Shibh, who he called the logistical planner of September 11 attacks” — an analysis that is unconvincing, as FBI interrogator Ali Soufan explained in an op-ed for the New York Times in April 2009. Soufan wrote:

Defenders of these techniques have claimed that they got Abu Zubaydah to give up information leading to the capture of Ramzi bin al-Shibh, a top aide to Khalid Sheikh Mohammed … This is false. The information that led to Mr. Shibh’s capture came primarily from a different terrorist operative who was interviewed using traditional methods.

Bizarrely, Bush also attempts to explain how Abu Zubaydah began cooperating, in a troubling passage in which he seems to be trying to make out that waterboarding was some sort of specific test for Muslims. He writes, “His understanding of Islam was that he had to resist interrogation only up to a certain point. Waterboarding was the technique that allowed him to reach that threshold, fulfill his religious duty, and then cooperate.” He adds that Abu Zubaydah then explained, “You must do this for all the brothers.”

Writing of Khalid Sheikh Mohammed, who was waterboarded 183 times, according to the OLC memos, Bush describes him as “difficult to break,” as Reuters put it, “but when he did, he gave us a lot.” As Reuters explained, “He disclosed plans to attack American targets with anthrax and ‘directed us to three people involved in the al-Qaeda biological weapons program,’ among other breakthroughs.”

Again, this is a claim that is not backed up with any evidence. As David Rose explained in an article for Vanity Fair in December 2008, “according to a former senior CIA official, who read all the interrogation reports on KSM, ‘90 percent of it was total f*cking bullsh*t.’ A former Pentagon analyst adds: ‘KSM produced no actionable intelligence. He was trying to tell us how stupid we were.’”

In conclusion, however, Bush claims that “the CIA interrogation program saved lives,” as Reuters described it, and states, “Had we captured more al-Qaeda operatives with significant intelligence value, I would have used the program for them as well.”

Why waterboarding is torture, and torture is a crime

The problem with Bush’s off-hand acknowledgment that he authorized the waterboarding of Khalid Sheikh Mohammed — and Abu Zubaydah and Abd al-Rahim al-Nashiri — is that waterboarding is torture, and torture is a crime.

As Isabel Macdonald of FAIR (Fairness and Accuracy in Reporting) explained in 2008 in an excellent overview of US reporting on waterboarding, “During the insurrection against the US occupation of the Philippines, the Washington Postdescribed how the US military tortured suspected members of the Filipino resistance using “the form of torture known as the water cure.” That was in September 1902, but after the Second World War, when US military tribunals tried Japanese military officials for war crimes for torturing prisoners of war with techniques including waterboarding, the New York Times described the procedure as “forced drownings,” and it was referred to by the Washington Post as “water torture.”

Similarly, in March 1968:

“water torture” was mentioned in the headline of a Washington Post article about the Australian army’s admission that a soldier had administered the “water treatment” to a Vietnamese woman suspected of being a guerilla. Six months later, the Post published a front-page photographic exposé of US soldiers administering this same “water treatment” to a Vietnamese prisoner. A follow-up report in the Post [in 1970] referred to this practice, which resulted in charges against the commander of the US Army troops in South Vietnam, as “an ancient Oriental torture called ‘the water treatment.’”

Moreover, when it comes to torture in more general terms, the US anti-torture statute (Title 18, Part I, Chapter 113C of the US Code, introduced in 1994) describes torture as “an act … specifically intended to inflict severe physical or mental pain or suffering … upon another person within his custody or physical control,” and, as I explained in an article in July this year about Jay S. Bybee, the former OLC head (and now a judge in the Ninth Circuit Court of Appeals) who signed his name to the most notorious of the “torture memos,” written by John Yoo in the summer of 2002:

The US anti-torture statute [also] requires a fine, or 20 years’ imprisonment (or both) for “[w]hoever outside the United States commits or attempts to commit torture,” and a death sentence, or a prison sentence up to and including a life sentence, “if death results to any person from conduct prohibited by this subsection.”

In addition:

The UN Convention Against Torture [ratified by Ronald Reagan in 1987] stipulates (Article 2.2), “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Moreover, the Convention also stipulates (Article 4. 1) that signatories “shall ensure that all acts of torture are offences under its criminal law” and requires each State, when torture has been exposed, to “submit the case to its competent authorities for the purpose of prosecution” (Article 7.1).

These facts are generally ignored by mainstream media outlets, where those in charge have, since 2004, when waterboarding under the Bush administration was first introduced to the US public, coyly — and deceptively — chosen to refer to it as “a form of simulated drowning condemned by human rights activists as torture” (as Reuters did on Thursday), thereby helping to foster the culture of impunity which has allowed Bush to make this statement so publicly, and which, in February, allowed Dick Cheney to tell Jonathan Karl, on ABC News’ “This Week,” “I was a big supporter of waterboarding.”

Why the Obama administration bears responsibility for Bush’s impunity

In addition, the Obama administration is also responsible. Neither President Obama nor Attorney General Eric Holder has chosen to hold Bush administration officials and lawyers — up to and including the former President — accountable for their crimes, even though, as I explained in an article in March 2009:

In an interview with ABC News on January 11, 2009, President-Elect Obama responded to a recent CBS interview with Dick Cheney, in which the then-Vice President had sounded his usual alarms about the need for “extraordinary” policies to deal with terror suspects, by stating, “Vice President Cheney I think continues to defend what he calls extraordinary measures or procedures and from my view waterboarding is torture. I have said that under my administration we will not torture.”

Two days later, at his confirmation hearing, Eric Holder reinforced Obama’s opinion. Noting, as the New York Times described it, that waterboarding had been used to torment prisoners during the Inquisition, by the Japanese in World War II and in Cambodia under the Khmer Rouge, and adding, “We prosecuted our own soldiers for using it in Vietnam,” he stated unequivocally, “Waterboarding is torture,” and reiterated his opinion on March 2, 2009, in a speech to the Jewish Council of Public Affairs in Washington. “Waterboarding is torture,” he said again, adding, “My Justice Department will not justify it, will not rationalize it and will not condone it.”

Instead, after a promising start on torture, which involved the President upholding the absolute ban on torture in an executive order issued on his second day in office, and the release of the OLC “torture memos” last April, in response to a court order, the Obama administration has retreated to a place where every attempt to seek accountability for the Bush administration’s torturers has been resolutely blocked.

In January this year, it was revealed that Holder had appointed — or had allowed — the veteran Justice Department fixer David Margolis to override the conclusions of a four-year internal investigation into the behavior of John Yoo and Jay Bybee, in which the author’s conclusions — that both men had been willfully guilty of “professional misconduct” — were watered down so that they were merely reprimanded for exercising “poor judgment.”

In addition, the administration’s stock response to attempts to investigate torture claims in court — as, for example, in the cases of five men subjected to “extraordinary rendition” and torture, who sought to sue Jeppesen Dataplan Inc., a Boeing subsidiary that acted as the CIA’s torture travel agent — has been to slam all the doors shut mercilessly, inappropriately invoking the little-known “state secrets” privilege to prevent anyone with a valid complaint from even getting anywhere near a court.

This is unlikely to change in the near future, of course, leaving George W. Bush able to boast openly about his crimes, apparently secure in the knowledge that he is untouchable, although as David Cole, a law professor at Georgetown University, and a long-standing critic of the Bush administration’s interrogation and detention policies, told theWashington Post on Thursday, “The fact that he did admit it suggests he believes he is politically immune from being held accountable … But politics can change.”

At present, it is difficult to see how, but those compiling evidence will have taken note that, in the very public forum of an internationally available memoir, George W. Bush has failed to rehabilitate his legacy and has, instead, openly confessed to war crimes.

Note: For a perceptive analysis of George W. Bush’s thoughts about his responsibility for the Iraq fiasco, see this postby Amy Davidson of the New Yorker.

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Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books:Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebookand Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

November 7th, 2010

Miles on Bush authorizing torture, medical complicity, and the AMA’s silence

Noted bioethicist Steven Miles has sent this comment on recent reports that President Bush received medical assurances that waterboarding didn’t cause long-lasting harm before authorizing waterboarding. He notes the passivity of the American Medical Association [AA] in face of overwhelming evidence of organized medical complicity with torture and the AMA’s failure to call for investigation or accountability for those involved:

Former President Bush filled in the last link showing that medical complicity with torture was integral to the program.

Previous documents had shown that physician design and monitoring of coercive, abusive and torture interrogations was approved by Secretary of Defense Rumsfeld and the Office of Medical Services of the CIA.

As President Bust put it in an interview posted on CNN yesterday, “Another technique was waterboarding, a process of simulated drowning. No doubt the procedure was tough, but medical experts assured the CIA that it did no lasting harm.” [added emphasis] In other words, the medical oversight and go-ahead for torture was incorporated into the very highest presidential authorization of torture.

It need not be reiterated that waterboarding has been prosecuted as torture by the United States and that President Bush’s statement on its efficacy has been repudiated by the government itself.

Previously, the policy foundation for medical complicity with torture has been traced as high as Secretary of Defense Rumsfeld and to the CIA administrative structure. Now it goes all the way past the President’s lawyers to the President himself.

The AMA [American Medical Association] stands on the bad apple theory. It renounces medical complicity with torture in principle while not standing for independent truth commissions or censuring the physicians responsible. As the AMA’s chief ethics spokesperson puts it.

“AMA Institute for Ethics Director Matthew Wynia, MD, noted that, while the recent Fay Report on intelligence activities at Abu Ghraib calls for further investigation into the role of medical professionals and states that at least two prison medics failed to report abuse, there are also several “instances of doctors doing the right thing under adverse circumstances.”

The silence of AMA and IOM [Institute of Medicine] with regard to serious moral accountability for crimes against international law and for degradation of international standards of medical ethics becomes even more glaring.

In holding to standards against clinicians who participate in torture that are not backed up with accountability; in a silence that implies that the structural participation in torture is a “political” matter rather than the destruction of medical professionalism; in continuing to seek shelter in the discredited idea that US torture was made possible by a few medical bad apples, US medicine had separated itself from physicians who are fighting torture in Turkey and Egypt and is utterly unable to speak on behalf of their cause or protection.

November 7th, 2010

Madar: Guantánamo as American as cherry pie

Chase Madar, oi  TomDispatch reminds us that the brutality and lawlessness characteristic of Guantánamo
is far from a violation of traditional US values. Rather, extraordinary and heartless brutality toward those accused of offenses against the social order characterizes all too much of what passes for our criminal “justice” system, whether they be murders, car thieves, or drug users or the mentally ill.  For many, traditional American values are, alas, to try and destroy the very humanity of those accused of abuses. cruel, inhuman, and degrading treatment runs rampant in our prisons and jails, just as injustice often reigns when the socially excluded are accused of offenses.

I would like to remind readers of Craig Haney’s impassioned essay on these issues, which was originally delivered at the 2007 American Psychological Association convention (I had the honor of being the follow-up speaker) and which I posted here.

Guantánamo, Exception or Rule?
All-American Justice for a Child Soldier at Obama’s Gitmo

By Chase Madar

When I was down in Guantánamo a few months ago, a veteran German journalist let it slip that she didn’t much care for the place.  “This,” she confided in me, and many of the other journalists there as well, “is the worst place I have ever visited in my entire career.”

It’s not hard to see why my superlative-loving friend felt this way: we were covering the case of Omar Khadr, a 15-year-old Canadian captured after a firefight with U.S. forces outside Kabul in July 2002, tortured and interrogated for a few months at Bagram Air Base in Afghanistan, then transported to Guantánamo.  He just reached a plea agreement that will avoid a trial before a military commission at Gitmo for five “war crimes.”  Four of them, freshly invented for the occasion, are not recognized as war crimes in any other court on the planet.  (Khadr pled guilty to all charges and will get at least one year more at Gitmo — in solitary — then perhaps be transferred to Canada for a remaining seven years.)

Aside from Khadr and about 130 other prisoners who may one day see a trial, Guantánamo also holds 47 more War on Terror prisoners who are expected to be “detained” indefinitely without being tried at all.  This was one of the radical policies of George W. Bush and Dick Cheney that is now cheerfully defended by the human rights grandees in Barack Obama’s State Department.

Gitmo and all other places without habeas corpus rights are indeed dismal places — and there is certainly something disgusting about the first conviction of a child soldier since World War II.  All the same, I couldn’t help but wonder if my vehement Kollegin had ever visited a homegrown federal prison like the one in Terre Haute, Indiana (whose maximum security wing was copied down to the smallest detail at Gitmo’s Camp 5), or even your run-of-the-mill overcrowded state lock-up, the kind you pass on the highway without even noticing that you’ve done so, or one of the crumbling youth detention facilities in New York State which, as we lawyers who have represented youth offenders know, are hellish.

Such prisons may lack the exotic setting of Gitmo’s Camp Delta, but they should not be forgotten.  At the risk of sounding boosterish, it so happens that a great many of America’s unsung domestic prisons also routinely abuse inmates, Guantánamo-style, are unable or unwilling to prevent inmate rape, employ long-term, sustained solitary confinement (which gives waterboarding a run for its money), and in actual practice are often beyond the rule of law.  Confessions, true or false, obtained through violence and threats, aren’t restricted to Guantánamo either.  They are not all that hard to find in our contiguous 48 states.  And for the rest of our prison system, where are the outraged German journalists?  Why are no British “law lords” calling the federal supermax in Florence, Colorado, a “legal black hole” as law lord Johan Steyn termed Guantánamo?

Alas, in so many ways Guantánamo is not the exception but far closer to the rule of our criminal justice system, and the case of Omar Khadr, rather than being an anomaly of the War on Terror, is in all too many ways positively all-American.  To be sure, taking a child soldier you’ve captured in a foreign land, whose interrogation entailed stringing him up half-naked in a five-foot-square cell with wrists chained to the bars at eye level and a hood clamped tightly over his face, then prosecuting him for “murder” because he allegedly tossed a grenade on a foreign battlefield, does present some legal issues that don’t ordinarily come up in Spokane or Chillicothe.

But Gitmo, a “betrayal of American values”?  Would that it were!  Alas, for nearly every grisly tabloid feature of the Khadr case, you can find an easy analog in our everyday criminal justice system.  In a sense, much of our War on Terror has proven a slightly spicier version of our “normal” way of doing criminal justice.  Using the case of Omar Khadr, let’s take this step by step.

Child Soldiers and Juvenile Offenders

The Khadr case should have been a bit queasy-making for us Americanos.  Hasn’t there been a surge of concern for child soldiers in book clubs and church groups across the land?  Turns out, however, that this long-distance compassion goes up in smoke at closer range.  The second a child soldier points his gun at an American, not another African, it’s adiós victimized child, hello hardened terrorist.

The hypocrisy in all this is less flaming than it may appear.  After all, clemency for youth offenders, be they child soldiers or just local kids, runs against the American grain these days.  If we routinely prosecute children even younger than 15 as adults — and we do — why should a foreign child soldier be any different?

In fact the U.S. even has a few dozen inmates doing life without parole for acts committed when they were 13 or 14, and most of these sentences were mandatory rather than the prerogative of a particularly nasty judge.  (Some small progress: last May in Graham v. Florida the Supreme Court decided that juveniles can get life without parole only if there’s homicide involved.)  Overall, the U.S. has in recent years had precious little mercy for its children, or anyone else’s.

Coercive Interrogation of Minors

Back in May, the Gitmo press corps gasped when Khadr’s “Interrogator Number One,” Joshua Claus, described the veiled threats of rape he wielded at Bagram Prison to try to break the young prisoner.  If Khadr should fail to cooperate, Claus told him, he would meet the same fate as another young (and imaginary) Afghan detainee who was supposedly sent to a U.S. penitentiary and raped to death in a shower room by “neo-Nazis, and four big black guys.”  Claus, a court-martialed detainee abuser, had been the leader of the final interrogation of a mistakenly imprisoned Afghan taxi driver who was beaten to death by American guards at Bagram in 2002.  Before receiving a rather light sentence in the case, Claus pledged his full cooperation with the Khadr prosecution, and he kept his part of the bargain with visible enthusiasm.

As it happens, Claus’s veiled threats of rape and violence to a minor would not have been that uncommon in domestic interrogation rooms.  “From the stories I’m familiar with, threats like that are a pretty garden-variety police interrogation tactic,” says Locke Bowman, legal director of the MacArthur Justice Center at Northwestern University.

With youths, it’s not that much of a challenge to get a false confession, even without the threat of or actual physical violence being brought to bear, as the case of Marty Tankleff in Long Island shows, not to mention the seven and eight year-old boys from the Englewood neighborhood of Chicago who, in the summer of 1998, “confessed” to murdering a girl for her bicycle.  Even after DNA evidence from semen found on the corpse was matched to an adult serial sex offender, the Chicago Police Superintendent at first refused to exonerate them.  The State’s Attorney might well have prosecuted the boys, too, if the entire South Side of Chicago hadn’t threatened to explode.

Torture

Okay, but what about torture?  We bemoan with great feeling that America has “become” a state that uses torture.  Alas, this, too, is not so new, nor has it ever been limited to foreign insurgents (be they Comanche, Filipino, or Vietnamese) or suspected terrorists.  Take, for example, the former high-ranking Chicago police detective Jon Burge who, over a 20-year career, enhanced his interrogations with mock executions, suffocation, electroshocks, pistol-whipping, and yes, a form of waterboarding.  All this was uncovered in 2002 in an epic special investigation which led to the reexamination of more than 100 cases, several overturned convictions, multiple Governor’s pardons and the usual massive lawsuits against the Chicago Police Department.  Because the statute of limitations for Burge’s crimes had run out, the disgraced police officer was convicted this past June for perjury and obstruction of justice.  He currently awaits sentencing.

Routinized Prison Abuse

As for routinized prison abuse, Bagram and Abu Ghraib have regularly been described as one-off aberrations, but the origins of such brutality are not hard to spot in our treatment of prisoners at home.  This continuity is personified by Charles Graner, the ringleader of the Abu Ghraib torture.  He had fittingly been a guard at maximum-security State Correctional Institute-Greene in southwestern Pennsylvania, itself subject to a major prisoner-abuse scandal in the late 1990s which got several guards fired, though not Graner.

Fact is, the abuse and/or torture of prisoners, though far from systematic, is not all that uncommon in many American prisons.  What came out in the Abu Ghraib photos is, according to the (increasingly busy) United States program of Human Rights Watch, not so different from the abuse and brutality of many of our own stateside lock-ups.

In New York, for instance, a state task force convened by Governor David Paterson in 2008 deemed the entire youth detention system “broken.”  The official report found that guards throughout the system regularly used “excessive force” on youth inmates, sometimes breaking bones and shattering teeth.

Prison abuse here at home can be just as fatal as at Bagram.  In New York, an emotionally disturbed 15-year-old died in 2006 after corrections officers pinned him face down on the ground.  (Remember, at Bagram the interrogators tried to make young Khadr talk by threatening to send him to an American prison, which they apparently considered at least as threatening as anything Afghanistan had to offer.)

This is not lost on lawyers representing Gitmo detainees.  “I might well advise a client to take ten years in the communal wing of Guantánamo over three years in solitary at the supermax in Florence,” says Shayana Kadidal, senior managing attorney at the Guantánamo Global Justice Initiative at the Center for Constitutional Rights.  Attorney Joshua Dratel, who took part in the very successful defense of Gitmo detainee David Hicks, told me recently that he thought the worst American-run prison is not Guantánamo’s Camp Delta, but rather the Metropolitan Correctional Center in lower Manhattan. And yet, somewhat mysteriously, New Yorkers are more likely to know about the brutality of Gitmo and Abu Ghraib than the fatal abuse and abysmal prison conditions in their own state.

To be sure, in significant ways Gitmo and the CIA’s various global “black sites” were significantly worse. First, the use of torture has been far more widespread at Bagram, Abu Ghraib, Guantánamo, and the other secret prisons established in the Bush years than at home.  In addition, the government has also made the decision to imprison some detainees without trial for the duration of what has often been described as a “multigenerational” global war on terror.  Even those prisoners with habeas rights have had trouble getting release orders granted by the judiciary enforced.  Half a dozen Guantánamo prosecutors — prosecutors, mind you, not defense lawyers — have quit in disgust with the whole process, offering harsh words about the structural flaws which tilt the system towards securing convictions at the expense of impartial justice.

In important ways, however, our domestic justice system is no better.  Darrell Vandeveld is a former Guantánamo prosecutor.  He resigned in a crisis of conscience in 2009.  He was also once a public defender in San Diego where he found that many defendants were able to get only a semblance of justice.  “Most of the defendants’ rights were honored only in the breach.  It’s an overburdened system that has only become worse.  Comparable to Gitmo?  No doubt.”  Vandeveld, who now heads the public defender office in Erie, Pennsylvania, stresses that, while the outrages are not identical, they are comparable.

Legal Black Holes, At Home and Abroad

Gazing into Gitmo’s black hole can also easily provoke disturbing reflections on the rule of law in wartime America.  As another lawyer remarked 2,000 years ago while his republic was degenerating into empire, “Inter armas silent leges” (in time of war, the laws fall silent).

Keep in mind that the Global War on Terror — a name the Obama administration has demurely dropped without dropping the war that went with it — is by no means the only war deforming our justice system.  For the past three decades, the War on Crime and the War on Drugs have been in full fury, becoming ever less metaphorical as budgets for police and prisons skyrocket, and then skyrocket some more.  These domestic crackdowns have come with much martial rhetoric and political manipulation of fear and anger, clearing a wide path for the excesses of that Global War on Terror.  By overburdening the criminal courts and prison system to a hitherto unimaginable degree, these “wars” also created legal black holes where the rule of law is notional at best.

Take the Prison Litigation Reform Act of 1995, which made it nearly impossible for inmates to sue prison authorities, and has put thousands of Americans beyond the reach of any kind of juridical authority.  According to Bryan Stevenson, a peerless capital-defense litigator and executive director of the Equal Justice Initiative in Montgomery, Alabama:

“U.S. prison officials have obtained greater and greater discretion to send someone to solitary confinement for years; to force people into their cells naked, without meals; to inflict punitive measures without any possibility of outside intervention.  It’s often a closed system whose managers have all the authority, especially at our supermax facilities.  They function in many ways like Guantánamo.”

Gitmo and Bagram were well within our capabilities before 9/11.  Yes, it’s true that Bush administration officials and pundits told us with excitement about how, in our counterattack on al-Qaeda, “the gloves were coming off.”  For a great many Americans already in U.S. prisons, however, those gloves had never gone on to begin with.  This raises some vexing questions about how we budget our indignation.  It is not at all clear why violent interrogations, abuse, and torture should be more scandalous when they happen overseas than in Chicago.

What explains this collective Jellybyism?  Is it because so many of our domestic inmates, especially in the regions where national opinion is produced, are African American and Latino, whereas most of our professional social reformers in the nonprofit sector are white and Asian?  Is it because most of our elite public-interest lawyers and white-shoe pro bono advocates come out of a top half-dozen law schools where they most likely got a nice taste of well-tended federal courts, but little if any exposure to our overburdened state criminal courts?  Is it just too depressing to think about our crumbling, overstrained criminal justice system in Guantánamo-like terms?  Does compassion fatigue for those atrocities closest at hand always set in first, and hardest?  Whatever the reasons, the gaping legal black holes in our domestic justice and penal system have acquired the seamless invisibility of an open secret.

It is no coincidence that most of the American intellectuals who have pointed out these domestic precursors to the Global War on Terror — journalists like Margaret Kimberley and Bob Herbert, and law professor James Forman, Jr. — are African American.  Black Americans, whose overall incarceration rate today is probably higher than that of Soviet citizens at the peak of the gulag, have had ample reasons over the centuries, and now as much as ever, to doubt the fundamental fairness of American justice.  When advocates compare the military tribunals unfavorably to “the Cadillac version of justice” that U.S. citizens supposedly get (which was how one Gitmo defense attorney described America’s domestic courts), it is simply baffling to those aware of how our system actually works.

In fact, the ho-hum familiarity of much of the War on Terror’s nastiness may help explain why so many Americans view what’s gone on at Gitmo with a shrug, and often respond to the liberal shock and horror with exasperation.  This has been going on right here for decades, where have you been?

Prosecuting a 15-year-old for “murder” with the help of a little torture and some threats of rape may not be the kind of thing we want to show German journalists.  They’ll just get upset.  They lack the context.  But we Americans really have no right to claim that we’re shocked, shocked.  We got used to this kind of thing a long time ago.  The prosecution of former child soldier Omar Khadr has been nothing, in other words, if not all-American.

**********

Chase Madar is a lawyer in New York.  He reviews and reports for the London Review of Books, Le Monde Diplomatique, the American Conservative Magazine and CounterPunch.  A Timothy MacBain TomDispatch video interview with Madar on why Guantanamo has not betrayed American “values” can be seen by clicking here or downloaded to your iPod, here.

Copyright 2010 Chase Madar

November 5th, 2010

Bush personally authorized water torture; memoir

The Washington Post reports that, in his memoir, President Bush admits to personally authorizing waterboarding Khalid Sheikh Mohammed.

The former president defends his handling of some of the most intense controversies of his presidency, acknowledging at one point that he personally approved the waterboarding, or simulated drowning, of alleged Sept. 11 plotter Khalid Sheikh Mohammed, a practice that the CIA has since forsworn and both President Obama and Attorney General Eric H. Holder Jr. have described as torture barred by international law.

“Damn right,” Bush said he told the CIA when they sought his permission.

Good thing for Bush that the Constitution protects Presidents from ever being brought to account for their abuses.

Bush also reports that Defense Secretary Donald Rumsfeld offered to resign after Abu Ghraib and Bush refused:

Bush writes that he still considers the war justified and said he believes it left America safer, despite the revelations of prisoner abuse at Abu Ghraib that prompted Defense Secretary Donald H. Rumsfeld to offer his resignation privately to Bush. He said he turned Rumsfeld’s offer down because he feared the change in leadership would send a bad signal to U.S. troops.

November 3rd, 2010

Obama pals with torture authorizer

Glenn Greenwald reminds us that a little torture, or an illegal war or two for that matter, are nothing among the powerful:

A political culture free of accountability

By Glenn Greenwald

Wolf Blitzer, CNN, January 10, 2003:

Last September 8, I interviewed President Bush’s National Security Adviser, Dr. Condoleezza Rice. I was pressing her on Iraqi President Saddam Hussein’s nuclear capabilities. . . .

“We know that he has the infrastructure, nuclear scientists to make a nuclear weapon,” she told me. . . .

Dr. Rice then said something that was ominous and made headlines around the world.

“The problem here is that there will always be some uncertainty about how quickly he can acquire nuclear weapons. But we don’t want the smoking gun to be a mushroom cloud.”

ABC News, April 9, 2008:

Sources: Top Bush Advisers Approved ‘Enhanced Interrogation’

In dozens of top-secret talks and meetings in the White House, the most senior Bush administration officials discussed and approved specific details of how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency, sources tell ABC News.

The so-called Principals who participated in the meetings also approved the use of “combined” interrogation techniques — using different techniques during interrogations, instead of using one method at a time — on terrorist suspects who proved difficult to break, sources said.

Highly placed sources said a handful of top advisers signed off on how the CIA would interrogate top al Qaeda suspects – whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding.

The high-level discussions about these “enhanced interrogation techniques” were so detailed, these sources said, some of the interrogation sessions were almost choreographed — down to the number of times CIA agents could use a specific tactic.

At the time, the Principals Committee included Vice President Cheney, former National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft.

As the national security adviser, Rice chaired the meetings, which took place in the White House Situation Room and were typically attended by most of the principals or their deputies. . . .

Then-Attorney General Ashcroft was troubled by the discussions. He agreed with the general policy decision to allow aggressive tactics and had repeatedly advised that they were legal. But he argued that senior White House advisers should not be involved in the grim details of interrogations, sources said. . . .

According to a top official, Ashcroft asked aloud after one meeting: “Why are we talking about this in the White House? History will not judge this kindly.

The Principals also approved interrogations that combined different methods, pushing the limits of international law and even the Justice Department’s own legal approval in the 2002 memo, sources told ABC News.

Then-National Security Advisor Rice, sources said, was decisive. Despite growing policy concerns — shared by Powell — that the program was harming the image of the United States abroad, sources say she did not back down, telling the CIA: “This is your baby. Go do it.”

Associated Press, today:

Obama, Rice huddle on arms treaty, other issues

WASHINGTON — President Barack Obama is meeting with former Secretary of State Condoleezza Rice to talk about a pending arms treaty with Russia and other issues .

A White House official said Rice and Obama have a “cordial relationship,” and the president looks forward to Friday’s meeting covering “a range of foreign policy topics.”

In other words:  Prosecute Bush officials who broke the law and instituted a worldwide torture regime? Please.  I’m doing the opposite:  I’m going to select some of them to occupy the highest positions in my administration and then meet with others in order to drink from the well of their wisdom on a wide range of foreign policy matters.

I realize this is very childish, shrill and unpragmatic of me.  All Serious people know that it’s critical to let Bygones be Bygones and that Serious National Security officials must meet with one another across partisan lines to share their wisdom and insights.  Still, the fact that Obama is not only shielding from all accountability, but meeting in the Oval Office with, the person who presided over the Bush White House’s torture-approval-and-choreographing meetings and who was responsible for the single most fear-mongering claim leading to the Iraq War, speaks volumes about the accountability-free nature of Washington culture and this White House.

John Aschroft was probably right that “history will not judge kindly” what these Rice-led officials did.  But that’s obviously not true of contemporary amoral Washington or its current President.

October 16th, 2010

Linkins: Obama supporters believe Bush critics should give Obama a pass for being to Bush’s right on civil liberties

Jason Linkins in Huffington Post:

Obama is to the right — let me repeat: TO THE RIGHT — of President George Bush, Vice President Dick Cheney, John Yoo, Jay Bybee, et al. — on the issues of state secretswarrantless surveillace, and detainee policy in Bagram, and has even come up with something that gives his predecessors pause: the claimed right to assassinate an American citizen at his whim! Obama, and his most idiotic defenders, seem to think that all of the people who built a career criticizing Bush for abuse of executive powers should just give Obama a pass — never mind that he ran on a platform of dismantling those powers.

September 18th, 2010

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