Susan Collins demagogued about how reading the attempted Christmas day bomber his Miranda rights demolished the ability to get intelligence from him. When caught out, she falls back on nonsense about a supposed “lack of consultation” that Andrea Mitchell demolishes:
In addition to the point about the cooperation of the bomber’s family, there is another point I haven’t seen made anywhere. The US was warned by the bomber’s father that his son posed a danger. If the father believed his son would be subjected to the “enhanced interrogation” [torture] tactics so beloved by conservatives, it is extremely unlikely that such a warning would have come. It is even likely that the threat of a military commission would have discouraged the family.
The point is that torture destroys the ability to gather intelligence. Sources will not turn in family or acquaintances to be tortured. But they are likely to turn in enemies, often with false accusations. Thus torture and an absence of due process discourage good intelligence and encourage bad.
Glenn Greenwald demolishes Collins in a piece where he takes on the right wing fiction ["lie"] that Constitutional rights only apply to American citizens:
Collins railed: “Once afforded the protection our Constitution guarantees American citizens, this foreign terrorist ‘lawyered up’ and stopped talking” (h/t). This notion that the protections of the Bill of Rights specifically and the Constitution generally apply only to the Government’s treatment of American citizens is blatantly, undeniably false — for multiple reasons — yet this myth is growing, as a result of being centrally featured in “War on Terror” propaganda.
First, the U.S. Supreme Court, in 2008, issued a highly publicized opinion, in Boumediene v. Bush, which, by itself, makes clear how false is the claim that the Constitution applies only to Americans. The Boumediene Court held that it was unconstitutional for the Military Commissions Act to deny habeas corpus rights to Guantanamo detainees, none of whom was an American citizen (indeed, the detainees were all foreign nationals outside of the U.S.). If the Constitution applied only to U.S. citizens, that decision would obviously be impossible. What’s more, although the decision was 5-4, none of the 9 Justices — and, indeed, not even the Bush administration — argued that the Constitution applies only to American citizens. That is such an inane, false, discredited proposition that no responsible person would ever make that claim.
What divided the Boumediene Court was the question of whether foreigners held by the U.S. military outside of the U.S. (as opposed to inside the U.S.) enjoy Constitutional protections. They debated how Guantanamo should be viewed in that regard (as foreign soil or something else). But not even the 4 dissenting judges believed — as Susan Collins and other claim — that Constitutional rights only extend to Americans. To the contrary, Justice Scalia, in his scathing dissent, approvingly quoted Justice Jackson in conceding that foreigners detained inside the U.S. are protected by the Constitution….
[B]asic common sense by itself should prevent people like Susan Collins from claiming the Constitution applies only to American citizens. There are millions of foreign nationals inside the U.S. at all times — not only illegally but also legally: as tourists, students, workers, Green Card holders, etc. Is there anyone who really believes that the Bill of Rights doesn’t apply to them? If a foreign national is arrested and accused by the U.S. Government of committing a crime, does anyone believe they can be sentenced to prison without a jury trial, denied the right to face their accusers, have their property seized without due process, be subjected to cruel and unusual punishment, and be denied access to counsel? Anyone who claims that the Constitution only protects American citizens, but not foreigners, would necessarily have to claim that the U.S. Government could do all of that to foreign nationals. Does anyone believe that? Would it be Constitutionally permissible to own foreigners as slaves on the ground that the protections of the Constitution — including the Thirteenth Amendment — apply only to Americans, not foreigners?
In its latest abomination, the Obama-Holder {In]Justice Department has decided to essentially clear the torture lawyers. The Obama administration seems to be making impunity for torture one of its top priorities.
They have now accepted the perfect system created by Bush and Cheney: Torture is illegal.
But torturers can’t be prosecuted because the [In]Justice Department said it was legal. Saying torture is legal is itself legal and ethical because the lawyers were only trying to interpret the law. Lawyers interpreting the law can’t be punished. Recycle again ne3xt time you want to torture. Thanks President Obama and Attorney General Holder. We understand that getting reelected is much more important than justice. We’ll remember you next time the torturers act:
Justice Official Clears Bush Lawyers in Torture Memo Probe
By Michael Isikoff and Daniel Klaidman
For weeks, the right has heckled Attorney General Eric Holder Jr. for his plans to try the alleged 9/11 conspirators in New York City and his handling of the Christmas bombing plot suspect. Now the left is going to be upset: an upcoming Justice Department report from its ethics-watchdog unit, the Office of Professional Responsibility (OPR), clears the Bush administration lawyers who authored the “torture” memos of professional-misconduct allegations.
While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action—which, in Bybee’s case, could have led to an impeachment inquiry.
The report, which is still going through declassification, will provide many new details about how waterboarding was adopted and the role that top White House officials played in the process, say two sources who have read the report but asked for anonymity to describe a sensitive document. Two of the most controversial sections of the 2002 memo—including one contending that the president, as commander in chief, can override a federal law banning torture—were not in the original draft of the memo, say the sources. But when Michael Chertoff, then-chief of Justice’s criminal division, refused the CIA’s request for a blanket pledge not to prosecute its officers for torture, Yoo met at the White House with David Addington, Dick Cheney’s chief counsel, and then–White House counsel Alberto Gonzales. After that, Yoo inserted a section about the commander in chief’s wartime powers and another saying that agency officers accused of torturing Qaeda suspects could claim they were acting in “self-defense” to prevent future terror attacks, the sources say. Both legal claims have long since been rejected by Justice officials as overly broad and unsupported by legal precedent.
A Justice official declined to explain why David Margolis softened the original finding, but noted that he is a highly respected career lawyer who acted without input from Holder. Yoo and Bybee (through his lawyer) declined requests for comment.
Mathew Alexander, former Air Force interrogator, had an important Op Ed in the New York Times in which he called for changing Appendix M in the Army Field Manuel guiding interrogations. As psychologist Jeffrey Kaye has been shouting for years, Appendix M allows continued abuses, such as sleep and sensory deprivation and is inconsistent with the Obama administration’s stated goal of ending detainee abuse.
TOMORROW will be one year since President Obama signed an executive order outlawing torture, yet our debate about interrogation methods continues. Though the president deserves praise for improving matters, the changes were not as drastic as most Americans think, and elements of our interrogation policy continue to be both inhumane and counterproductive.
Americans can now boast that they no longer “torture” detainees, but they cannot say that detainees are not abused, or even that their treatment meets the minimum standards of humane treatment mandated by the Geneva Conventions, the Detainee Treatment Act of 2005 (the so-called McCain amendment), United States and international law, or even Mr. Obama’s executive order.
If I were to return to one of the war zones today — as an Air Force officer, I was sent to Iraq to head an interrogation team in 2006 — I would still be allowed to abuse prisoners. This is true even though in my experience, torture or even harsh but legal treatment never got us useful information. Instead, such tactics invariably did just the opposite, convincing detainees to clam up.
The adoption last year of the Army Field Manual as the standard for interrogations across the government, including the C.I.A., was a considerable improvement. But we missed a unique opportunity for progress last August when the president’s task force on interrogations recommended no changes to the manual, which was hastily revised in 2006 in the aftermath of the Abu Ghraib torture scandal.
For example, an appendix to the manual allows the military to keep a detainee in “separation” — solitary confinement — indefinitely. It requires only that a general approve any extension after 30 days. Rest assured, there will be numerous waivers to even that minuscule requirement.
Yes, there are legitimate reasons to isolate detainees. Domestic law enforcement agencies do it to prevent suspects from colluding on alibis and allow investigators the leverage to use non-coercive interrogation techniques like confronting one detainee with the other’s statements.
But military interrogators do not operate in a vacuum. The consequences of their actions have far-reaching effects — like Al Qaeda’s exploitation of American abuse of prisoners as a recruiting tool. And, in any case, extended solitary confinement is torture, as confirmed by many scientific studies. Even the initial 30 days of isolation could be considered abuse.
If we truly wanted to come up with a humane limit on solitary confinement, we would look at the Golden Rule: what would we consider inhumane treatment if one of our own soldiers were captured by the enemy? My answer: Given the youth of our men and women in uniform, that number is probably around two weeks. This limit, however, should be determined by medical professionals, not soldiers or politicians.
The Army Field Manual also does not explicitly prohibit stress positions, putting detainees into close confinement or environmental manipulation (other than hypothermia and “heat injury”). These omissions open a window of opportunity for abuse.
The manual also allows limiting detainees to just four hours of sleep in 24 hours. Let’s face it: extended captivity with only four hours of sleep a night (consider detainees at Guantánamo Bay who have been held for seven years) does not meet the minimum standard of humane treatment, either in terms of American law or simple human decency.
And if this weren’t enough, some interrogators feel the manual’s language gives them a loophole that allows them to give a detainee four hours of sleep and then conduct a 20-hour interrogation, after which they can “reset” the clock and begin another 20-hour interrogation followed by four hours of sleep. This is inconsistent with the spirit of the reforms, which was to prevent “monstering” — extended interrogation sessions lasting more than 20 hours. American interrogators are more than capable of doing their jobs without the loopholes.
The Field Manual, to its credit, calls for “all captured and detained personnel, regardless of status” to be “treated humanely.” But when it comes to the specifics the manual contradicts itself, allowing actions that no right-thinking person could consider humane.
The greatest shame of the last year, perhaps, is that the argument over interrogations has shifted from debating what is legal to considering what is just “better than before.” The best way to change things is to update the field manual again to bring our treatment of detainees up to the minimum standard of humane treatment.
The next version of the manual should prohibit solitary confinement for more than, say, two weeks, all stress positions and forms of environmental manipulation, imprisonment in tight spaces and sleep deprivation. Unless we rewrite the book, we will only continue to give Al Qaeda a recruiting tool, to earn the contempt of our allies and to debase our most cherished ideals.
*************
Matthew Alexander is the author of “How to Break a Terrorist.”
The St Louis Post-Dispatch calls for an investigation of Scott Horton’s charges that three supposed Guantanamo “suicides” were likely deaths resulting from torture:
Prosecutor should investigate three questionable Gitmo suicides
By Editorial Board
Top national security and intelligence officials from President Barack Obama on down are examining closely the communications lapses that contributed to the shootings at Fort Hood by U.S. Army Maj. Nidal Hasan last November and the near catastrophe aboard a Detroit-bound airliner by an al-Qaida “Christmas bomber” in December.
The public has the right to expect a full and complete accounting, given the profound implications of what appear to be basic system failures.
Principles of accountability and correction up the chain of command should apply with the same urgency to a less-publicized but equally disturbing breach of discipline — one that calls into question the integrity of our military command.
There’s growing evidence that suggests that three detainees — two from Saudi Arabia and one from Yemen — died from torture-related injuries at the Guantanamo Bay prison camp in 2006. The military cover story strains credulity. A subsequent inquiry by the U.S. Naval Criminal Investigative Service fared worse.
Methodically examined and parsed by a team from Seton Hall Law School in Newark, N.J., the Navy investigation seems to have been pursued with either inexcusable incompetence or using a massive cover-up.
The detainees — none of whom had been charged with a crime — were found dead in their cells, allegedly the result of identical suicides by hanging. The details are gruesome.
For the deaths to have occurred as Navy investigators claimed, each of the men would have had to construct a braided noose out of torn sheets or clothing, tied their feet and hands together, pushed rags down their throats, hung the nooses from the cell wall or ceiling and then climbed up on a sink, put the nooses around their necks and used their weight to suffocate themselves by strangulation.
The three supposedly were in non-adjoining cells. They would have had to coordinate activities to simultaneously evade the detection of guards for two hours. In this high-security facility in Cuba, the guards were required to make physical checks of prisoners every 10 minutes.
Autopsies were performed within an hour of the discovery of their bodies, which were returned to their families with parts of their throats missing. The removal of neck organs prevented independent forensic examination of the claimed cause of death.
Now comes Harper’s Magazine, with advance online publication of an article that reports evidence from military guards that the victims may have been transported to another location prior to their “discovery,” and that the events leading to their deaths may have occurred at a “black site” — a secret facility used to conduct “enhanced” interrogation.
That’s just part of the litany of irregularities surrounding the supposed suicides and Navy investigation itemized by the Seton Hall investigators and published in the Harper’s report.
Evasions of this kind hardly are unprecedented. In 2004, U.S. Army Maj. Gen. Antonio M. Taguba revealed abuses and deception up the chain of command in connection with criminal misconduct at Abu Ghraib prison in Iraq.
Ranking officers were found complicit in the sadistic mistreatment of prisoners. It was not the work of only a few bad apples.
Enough is enough. Prisoner abuse and botched investigations undermine national security, handing America’s enemies a devastating recruiting tool.
Mr. Obama should appoint an unrelenting career prosecutor to the case, someone of the caliber of Patrick Fitzgerald, the U.S. attorney in Chicago, to dig deeper. He must follow where the evidence leads.
When a cover-up is exposed, nothing is more telling than the first reactions from those who are involved. Do they maintain their stories and face potentially aggravated consequences? Or do they simply remain silent? In making this choice, they often telegraph the depth of their anxiety and concern.
My friends who served in the military speak of the pride with they performed what they viewed as their duty. This duty included the obligation to act with honor, including, above all, following the Geneva Conventions when handling detainees and prisoners of war. My friends tell sadly of the despair they felt in seeing this obligation shredded during the Bush administration as word came down that they should do “whatever it takes.” Some of them resigned in disgust. Others resisted what they viewed as moral decay from within.
A new story by attorney Scott Horton at Harpers reveals yet another very disturbing episode of dishonor. Horton reveals strong credible evidence that three alleged “suicides” at Guantanamo in June 2006 were really homicides. The official story is that during the night of June 9, 2006, three prisoners were found hanging in their cells in Alpha Block of Guantanamo’s Camp 1.
The deaths were immediately proclaimed suicides, as examples of vicious “asymmetric warfare,” and all service members present were informed that they were not to challenge this conclusion. Early reports made no mention of the rags reportedly found stuffed down their throats that might lead to questioning of the suicide claim. Secret autopsies by unknown physicians were conducted. When the bodies were received by families, portions of the throat, including the larynx and nearby bones, were missing, thus removing evidence of how the men died. Requests by independent pathologists for the missing organs went unanswered by the Armed Forces Institute of Pathology.
Nonetheless, the bodies showed signs of bruising, hemorrhaging, and needle marks suggesting that they had been tortured. The father of one of the men, a Saudi police brigadier general, examined his son’s body and proclaimed the death a homicide:
“There was a major blow to the head on the right side,” he said. “There was evidence of torture on the upper torso, and on the palms of his hand. There were needle marks on his right arm and on his left arm.” None of these details are noted in the U.S. autopsy report. “I am a law enforcement professional,” Al-Zahrani said. “I know what to look for when examining a body.”
We already knew from work by Mark Denbeaux and students at Seton Hall Law School that the official investigation of these deaths by the Navy Criminal Investigative Service [NCIS] was not credible as many potential witnesses were not questioned and such important sources of information as the surveillance videotapes of the hallways outside the cell where the prisoners allegedly hung themselves were never examined.
Horton also reveals for the first time the existence of a hidden “black site” facility at Guantanamo, nicknamed “Camp No” because anyone who asked if it existed was told “No, it doesn’t.” Horton speculates that Camp No is run, either by the CIA or by the Joint Special Operations Command, JSOC, which was commanded by Gen. Stanley McChrystal, appointed by Obama to be the commanding general in Afghanistan. JSOC is well known to those concerned with US torture because some of the most brutal interrogations in Iraq were reportedly conducted by JSOC. The Washington Post and New York Times recently revealed reports of abuses at a secret JSOC-run detention facility at Bagram air base. [See also the 2008 New York Times article mentioning the existence of prisoners held by JSOC at Bagram.]
Horton reports guards’ accounts of a mysterious van that transported three prisoners toward Camp No earlier in the evening of June 9. The van returned late that evening and backed up into a dock, as if unloading cargo. Shortly thereafter, the deaths were announced.
Horton speculates that the dead prisoners were tortured at Camp No on the night of their deaths. As evidence of torture he produces the account in a sworn federal court deposition of a fourth detainee,
Shaker Aamer, in which Aamer reports abuse that same night:
On June 9th, 2006, [Aamer] was beaten for two and a half hours straight. Seven naval military police participated in his beating. Mr. Aamer stated he had refused to provide a retina scan and fingerprints. He reported to me that he was strapped to a chair, fully restrained at the head, arms and legs. The MPs inflicted so much pain, Mr. Aamer said he thought he was going to die. The MPs pressed on pressure points all over his body: his temples, just under his jawline, in the hollow beneath his ears. They choked him. They bent his nose repeatedly so hard to the side he thought it would break. They pinched his thighs and feet constantly. They gouged his eyes. They held his eyes open and shined a mag-lite in them for minutes on end, generating intense heat. They bent his fingers until he screamed. When he screamed, they cut off his airway, then put a mask on him so he could not cry out.
The treatment Aamer describes is noteworthy because it produces excruciating pain without leaving lasting marks. Still, the fact that Aamer had his airway cut off and a mask put over his face “so he could not cry out” is an alarming fact. This is the same technique that appears to have been used on the three deceased prisoners.
Despite pressure from Britain, the US has refused to release Mr. Aamer, citing “security concerns.” Horton speculates that those concerns may be that Aamer could be a witness in a criminal prosecution of those responsible for the three June 9 deaths. However, the connection to the deaths is speculative, partly because there is no report in Aamer’s account of his being transported to a separate facility before his abuse.
Horton does not discuss the fate of Camp No. If it was open in 2006, it may still open, as is apparently the JSOC prison at Bagram. Certainly, no press reports have announced its closing. It is to be hoped that Horton’s article, by pulling pack the veil on some dark secrets, will ultimately lead to answers to this and other open questions.
No fair reader of Horton’s account can end reading it without serious questions regarding what happened that June night three and a half years ago. The testimony of the guards, along with evidence of inconsistencies in the official account, make the account of a triple suicide extremely unlikely. The only other alternative is that these men were killed, possibly as a result of “enhanced interrogation” torture gone awry. But even that explanation has problems. How could three “accidental” deaths occur in the same night using the same techniques? If the deaths were unintentional, why didn’t the torturers stop after one, or even two, deaths? Given this question, the possibility that the three men were deliberately murdered cannot be ruled out.
As Horton tells it, immediately after the murders, our government went into high gear, controlling the press, concocting the suicide cover story, and acting to destroy evidence and intimidate witnesses in order to destroy doubts about the official account. The FBI raided the home of a Guantanamo Colonel whose ego apparently led him to allow a press team to report on the rags stuffed down the dead men’s throat. NCIS conducted its sham investigation, while intimidating the detainees and guards into silence, including by seizing every piece of paper, including confidential attorney-client communications, from the prisoners. When Justice Department lawyers defended this seizure in court, they relied upon press accounts of the “suicides,” thus potentially avoiding making false statements under oath about the deaths
Horton also reveals that the Obama administration has been aware of the cover-up since February, 2010, when a Military Intelligence Staff Sergeant who witnessed suspicious events the night of the murders went to them. The Obama Justice Department “investigated” and then dismissed the report, despite confirmation from several military police ion duty that night. Only then did this Sergeant seek out the press.
Horton’s revelations place our country at an important crossroads. There have certainly been a number of other deaths previously attributed to detainee abuse. However, the June 9, 2006 deaths are especially notable both in that they occurred far from the battlefield and in the extent of potential high-level cover-up involved.
This report that there is credible evidence of murder by our government, and that many government agencies may have participated in a cover-up constitutes a grave moral crisis for the nation. Will we demand an independent investigation, and accountability if justified? Or is the possibility of government murder just something we will accept? Does President Obama’s vaunted desire to “look forward and not backward” includes possible homicide?
As Horton quotes retired Rear Admiral John Hutson
“Filing false reports and making false statements is bad enough, but if a homicide occurs and officials up the chain of command attempt to cover it up, they face serious criminal liability. They may even be viewed as accessories after the fact in the original crime.” With command authority comes command responsibility, he said. “If the heart of the military is obeying orders down the chain of command, then its soul is accountability up the chain. You can’t demand the former without the latter.”
In our system of government, the President is the Commander in Chief. As the one at the top of the command structure, he bears ultimate responsibility “take Care that the Laws be faithfully executed.”It is his duty to guarantee a truly independent investigation of these charges. Unfortunately, given the possible involvement of numerous government agencies, including the NCIS, FBI and Justice Department, no investigation through the ordinary channels can possible be credible. We need an investigation truly independent of all government agencies that may have participated in a possible cover-up.
However, the responsibility does not rest with the President alone. As citizens it is our duty to insist that he acts. Only through a thorough independent investigation of these charges, and of the entire spectrum of abuses that occurred during the “War on Terror,” can my military friends’ honor be restored. They, and we, need to know that the words in the Geneva Conventions, the UN Convention Against Torture, and the Universal Declaration of Human Rights, not to mention the US Constitution, are more than words cynically taught to new recruits. These new accusations will provide a test of what type of people we are.
Jeff Kaye, at Firedoglake reminds us that the Army Field Manual, Appendix M, allowing sleep deprivation and other abusive techniques, is still in effect. Further, he finds out that interrogations based on these techniques are still occurring at Guantanamo. This post is evidently the first of a series on the Army Field manual:
Torture Confirmed at Guantanamo; Army Field Manual Codified Abuse
By Jeff Kaye
Recently, it occurred to me that, with all the debate or controversy over the Obama administration’s policies on torture, no one had asked the military, and in particular those running America’s “terror” prisons, if they had been using the Army Field Manual’s Appendix M. So, I called Guantanamo’s Public Affairs Officer, Lt. Commander Brook DeWalt, and asked him if Appendix M interrogations had taken place at Guantanamo.
This question may have more than intrinsic interest, as the administration has now announced that it is pursuing moving over a hundred Guantanamo “detainees” to a prison in Illinois. (The actions of Umar Abdulmutallab on an American Airliners jet on Christmas Day may have thrown a monkey-wrench into the “closing” of Guantanamo, but, most likely, Obama’s plans will move forward.)
Lt. Commander DeWalt took a few days to get confirmation, but when he spoke to me on December 11, he confirmed that while “not routine,” Appendix M interrogations are conducted at Guantanamo “as authorized,” “in accordance with DOD directives and U.S. law.” He would not go into operational specifics. Officer-In-Charge of the 4th Public Affairs Detachment (Guantanamo Forward), Lt. Col. James Crabtree, whom was also contacted, declined to be more forthcoming about dates when asked for more specific dates of operational usage.
Appendix M is the portion of the 2006 revised Army Field Manual that covers “unlawful enemy combatants” who don’t meet the U.S. government’s criteria for Geneva treatment as prisoners of war. Obama doesn’t want to call them illegal combatants anymore, so the government doesn’t call them anything, except people with lesser rights.
Famously, President Obama has proclaimed, as did his predecessor, that he was against torture, and was banning it in his administration. As a result, the Obama administration closed down the CIA secret black site prisons, though not, as it turns out, all secret black site prisons.
Obama also rescinded the torture memos of Bybee/Yoo/Bradbury/Addington/Levin, and replaced them with an interrogation policy oriented around the Bush-era Army Field Manual (AFM), whose latest incarnation was the brainchild of Donald Rumsfeld’s assistant, Stephen Cambone. At first, the new AFM was supposed to have a secret annex, so the “worst of the worst” could be grilled in U.S. military prisons, and not have any bleeding hearts or Al Qaeda types getting wind of what was going on.
But, brilliantly, one has to admit, they hit on the idea of simply laying the document openly among the people, and when there was no protest, and the politicians dutifully saluted, the new torture policy was ready to go. First, they had to line up some right-wingers to protest the new AFM was “too soft,” especially for use by the CIA. Then, they had to conduct a PR campaign that sold the AFM to the public, as humane, Geneva-compliant, and the negation of former Bush torture policies. Hence hoary old Senator Feinstein was rolled out to give the stamp of approval from “pragmatic liberal” types. No one else around the Beltway would peep boo from the left.
Appendix M was certainly not the old “enhanced interrogation techniques,” but they weren’t exactly not them either. The new AFM was supposed to be better than the old one, like any new product, but in fact, old prohibitions against abusive interrogation techniques were removed, and in some cases, the techniques formally reintroduced. An example of the latter is sleep deprivation, which used to be explicitly proscribed, but is now part of Appendix M procedure. “Fear Up” procedures are strengthened. Modes of sensory deprivation are introduced. The ban against drugs that cause serious derangement of the senses or temporary psychosis is replaced by a ban against drugs that cause “permanent damage.” Stress positions are, notably, not explicitly banned.
Next: “Will Military Torture Be Transferred to the United States?”
The New York Timesknows torture when they hear of it, unlike the Obama administration or the Supreme Court:
Yes, It Was Torture, and Illegal
New York Times Editorial
Bush administration officials came up with all kinds of ridiculously offensive rationalizations for torturing prisoners. It’s not torture if you don’t mean it to be. It’s not torture if you don’t nearly kill the victim. It’s not torture if the president says it’s not torture.
It was deeply distressing to watch the United States Court of Appeals for the District of Columbia Circuit sink to that standard in April when it dismissed a civil case brought by four former Guantánamo detainees never charged with any offense. The court said former Secretary of Defense Donald Rumsfeld and the senior military officers charged in the complaint could not be held responsible for violating the plaintiffs’ rights because at the time of their detention, between 2002 and 2004, it was not “clearly established” that torture was illegal.
The Supreme Court could have corrected that outlandish reading of the Constitution, legal precedent, and domestic and international statutes and treaties. Instead, last month, the justices abdicated their legal and moral duty and declined to review the case.
A denial of certiorari is not a ruling on the merits. But the justices surely understood that their failure to accept the case would further undermine the rule of law.
In effect, the Supreme Court has granted the government immunity for subjecting people in its custody to terrible mistreatment. It has deprived victims of a remedy and Americans of government accountability, while further damaging the country’s standing in the world.
Contrary to the view of the lower appellate court, it was crystal clear that torture inflicted anywhere is illegal long before the Supreme Court’s 2008 ruling that prisoners at Guantánamo, de facto United States territory, have a constitutional right to habeas corpus. Moreover, the shield of qualified immunity was not raised in good faith. Officials decided to hold detainees offshore at Guantánamo precisely to try to avoid claims from victims for conduct the officials knew was illegal.
Reversing the Circuit Court would not have ended the matter. The plaintiffs would still have had to prove their case at trial. They deserved that chance. There are those who oppose trying to punish Bush-era lawlessness — some who argue that America should not look backward and some who excuse that lawlessness. But the rule of law rests on scrutinizing evidence of past behavior to establish accountability, confer justice and deter bad behavior in the future.
President Obama, much to his credit, has forsworn the use of torture, but politics and policy makers change and democracy cannot rely merely on the good will of one president and his aides. Such good will did not exist in the last administration. And the inhumane and illegal treatment of detainees could make a return in a future administration unless the Supreme Court sends a firm message that ordering torture is a grievous violation of fundamental rights.
Anyone who doubts the degree of executive branch pliability in this realm needs to consider this: The party that urged the Supreme Court not to grant the victims’ appeal because the illegality of torture was not “clearly established” was the Obama Justice Department.
Remember when the British military was full of outrage at the barbarous ways the US forces treated Iraqis? Abu Ghraib would never have occurred if the Brits were in charge. Because, they claimed, the Brits, with their wonderful Malay experience, knew how counterproductive such behavior was. Seems like such a long time ago….
The Times (London) now adds to the reports of systematic abuses by British forces in Iraq:
Iraqi prisoners ‘were sexually humiliated by female British soldier’
Fourteen new cases of sexual abuse have been made against a secretive British Army interrogation unit Tom Coghlan and Alice Fordham in Baghdad
A female British soldier is accused of sexually humiliating and abusing prisoners in Iraq in a series of claims about British troops in Basra, The Times has learnt.
Five former detainees have made specific allegations against a female interrogator they knew as “Katy”.
The claims are among 14 new cases brought against a secretive British Army interrogation unit. These bring to 40 the total of pending British court cases by former Iraqi detainees.
Sexual abuse was routinely practised by the Joint Forward Intelligence Team (JFIT) between 2003 and 2007, it is claimed, when the unit ran the Divisional Temporary Detention Facility based at the Shaibah Logistics Base near Basra. Among the allegations is at least one case of male rape.
Interrogators are also accused of coercive practices outlawed in Britain, including threats and actual violence, the use of stress positions, sleep deprivation, exposure to heat and cold, hooding and threats to rape and murder detainees’ families.
A Ministry of Defence spokesman told The Times that all the allegations were being or would be investigated. However, lawyers from the human rights group Public Interest Law are in the process of bringing judicial review proceedings in all the cases, arguing that British military authorities cannot be relied on to investigate them impartially.
Phil Shiner, the lawyer for the five former detainees, outlined the allegations in a letter to Bob Ainsworth, the Defence Secretary.
“The forms of ill-treatment suffered by the claimants include physical beatings, deprivation of food, exposure to the cold and excessive heat, threats of rape and violence, sexual humiliation and solitary confinement,” the letter reads. “In particular, the allegations evidence a return to the use of coercive interrogation techniques declared unlawful by the European Court of Human Rights.”
Mr Shiner told The Times: “Cases of sexual abuse of one sort or another come up in a majority of the accounts given by my clients. This ranges from male rape in one case, through the use of pornography, various masturbatory practices and having sex in front of them.”
In Basra, fury at the treatment of detainees still simmers and local leaders claim that many innocent people became radicalised in prison.
“We heard about many cases of citizens of Basra being arrested although they are innocent,” said Awath al-Abdan, a tribal sheikh and politician. “These people suffered the worst types of torture and humiliation and foul words.”
He added that gangs and groups were formed inside the detention centres and prisoners would be compelled to join them. “The British did nothing to stop this, although they were aware of it,” he said.
When a man suffered in prison, he said, “this will give him a feeling of revenge and sometimes the sense of revenge cannot be obtained except by joining armed groups. And that is why when the British were being shelled with mortars and missiles, you never found a single person who was objecting”.
Public Interest Law said that the former detainees contacted them through the Iraqi League, a pressure group of Iraq-born Britons. Mr Shiner said that he did not believe that any of his clients were known to each other and that they came from different parts of southern Iraq.
He cited evidence given at the court martial in 2007 of seven members of the Queen’s Lancashire Regiment by Lieutenant-Colonel Nicholas Mercer, the Commander Legal for British forces in Iraq in 2003.
Colonel Mercer told the court martial that on March 27, 2003, he intervened after seeing about 40 hooded Iraqi detainees being kept in a stress position in the sun next to an electric generator at the Shaibah Logistics Base. The prisoners were in the care of interrogators from the JFIT. He said the interrogators told him that he was not authorised to end the prisoners’ treatment because the unit answered directly to the Defence Intelligence Security Centre in Britain.
In November the Government ordered the Al-Sweady Inquiry into allegations that British forces abused and unlawfully killed detainees. Part of that inquiry will relate to alleged abuse at the Shiabah Logistics Base between May and September 2004.
Bill Rammell, the Armed Forces Minister, said in a statement that of the 120,000 British soldiers who served in Iraq, only a few “have ever fallen short of our high standards”.
“Even a tiny number is unacceptable,” he said, and allegations would be taken seriously but “must not be taken as fact and formal investigations must be allowed to take their course without judgments being made prematurely”.
In their continuing purge of human rights advocates from the administration (think Greg Craig and Phillip Carter), the Obama administration together with the Democratic leadership in the Senate got rid of one of those advocates who never even got into Office. As a Christmas present to the right, the nomination of Dawn Johnson to head the Office of Legal Counsel was sent back to the administration without even a whimper, much less a fight . By all appearances, the administration had rapidly decided that it didn’t serve their purposes to have the principled Johnson as the ultimate legal authority for the government as they channeled George W. Bush in their legal policies on detention without trial, invasion of civil liberties, the creation of a wall of impunity for torturers, and the destruction of government transparency.
Yesterday, when I wrote about 34 Obama Nominees Not Named Dawn Johnsen being confirmed by the Senate on the heels of the healthcare vote, and before they left town, I was not aware, in addition (h/t earlofhuntingdon), the nomination was now completely dead. From Main Justice:
The Senate approved a unanimous consent request today to hold over several nominees for the second session of the 111th Congress, which begins in January.
But nominees to head three DOJ offices: Dawn Johnsen, for the Office of Legal Counsel, Mary L. Smith, for the Tax Division, and Christopher Schroeder, for the Office of Legal Policy, were returned to the White House before the Senate recessed for the holidays.
Johnsen, who was nominated in February, was approved by the Senate Judiciary Committee in March on a party line vote.
Several Senate Republicans, joined by Democratic Sens. Arlen Specter (Pa.) and Ben Nelson (Neb.), have voiced concerns about Johnsen’s vocal opposition to the Bush administration’s national security policies and her past work for an abortion rights group.
The nomination of Dawn Johnsen to be the head of the Office of Legal Counsel at DOJ, a critical post, is now truly dead. If Ms. Johnsen is to serve, she will have to be renominated by Barack Obama and start over. She never got the up or down vote promised as soon as the Senate had done healthcare, she never got an ounce of support from the Administration that nominated her, and a year of her life was taken in what certainly appears to be a cowardly and demeaning political ploy.
There is a bit more than meets the eye to unpack here. Harry Reid held over several nominations for the return to session in January, but Dawn Johnsen was not one of them. The implication is that he could only do so by a “unanimous consent” approval by the Senate and that, golly gosh, he just could not get it. That does indeed appear to be the case from the Senate Rules on Nominations. Rule XXXI(6) provides:
Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President; and if the Senate shall adjourn or take a recess for more than thirty days, all nominations pending and not finally acted upon at the time of taking such adjournment or recess shall be returned by the Secretary to the President, and shall not again be considered unless they shall again be made to the Senate by the President.
Even assuming Harry Reid had no alternative but to return the nomination, the better question is how did it get to this point, and why has the White House and Senate been so disingenuous about it? The only rational conclusion at this point is that killing Johnsen’s nomination is precisely what the Obama White House desired. The White House intentionally left to rot, and then outright killed, their own nominee.
The evidence of this is pretty damning. Dawn Johnsen’s nomination had languished, twisting in the wind, for 280 days as of the time her nomination was killed by Harry Reid, far longer than any other Obama nominee. The only notable recent support for Johnsen from the White House came in a statement by White House Counsel Greg Craig on October 11, 2009, a weak statement saying only that the White House “would not withdraw” her nomination. Craig was subsequently fired and, hilariously, attempted to be scapegoated by Rahm Emanuel for – wait for it – not getting nominations like Johnsen’s confirmed.
A typical Rahm Emanuel backhanded opaque play; blame someone (Craig) interested in governmental transparency for not getting another official who favors openness and transparency (Johnsen) confirmed, and all the while Rahm and Obama are choking off openness and transparency. Use the Johnsen nomination as a bone to the liberals and simultaneously use it as cover to betray them with the opposite of what Dawn Johnsen stands for. A perfect political scam on the liberal base who was so thrilled with the nomination of a honest rule of law advocate for the Constitution like Dawn Johnsen. Liberals should have known better, but that is just not who Barack Obama and Rahm Emanuel are.
Moreover, the bleating by Harry Reid and the Obama Administration that it is all the fault of mean old Republican obstructionism simply does not hold water. The Democrats hold a 60 seat caucus block, sufficient to overcome Republican obstruction. Of those, the Main Justice article is quite clear there were only two Democratic problem children, former Republican Arlen Specter and the ever whiny Ben Nelson, who never passes up an opportunity to betray his party. That means there were potentially only 58 Democratic votes for Johnsen’s nomination. But Republican Richard Lugar firmly supported Dawn Johnsen, so that makes 59 votes, only one shy of confirmation.
In addition to Lugar, both Republican Senators from Maine, Susan Collins and Olympia Snowe, have refused to rule out voting for Johnsen and were being lobbied hard by extremely influential women’s groups and liberal constituents. Both Collins and Snowe have a history of agreeing, when pressured, to allow up or down votes on Presidential nominees, even from Democrats.
Barack Obama and Rahm Emanuel had 59 votes in favor of Dawn Johnsen’s nomination, a distinct possibility of picking up Collins, Snowe or both, and are more than aware Arlen Specter needs big help in his reelection campaign in Pennsylvania and that Ben Nelson can always be bought. And despite all of the above, the Obama White House did not ever request Harry Reid to call a vote. The only rational conclusion from this is the Obama White House did not want Dawn Johnsen, their own nominee, to be confirmed.
In the end, it is likely Barack Obama, Rahm Emanuel and the servants of the status quo simply did not really want a true advocate for governmental transparency, a critic who excoriated Bush/Cheney policies on warrantless wiretapping, torture, indefinite detention, ignoring international treaties and conventions, and concentration of power in a unitary executive; all policies the Obama Administration has substantially co-opted as its own. So Dawn Johnsen was a pawn, a shiny object, catnip for a desperate liberal base; but in the end, as always, Barack Obama and Rahm Emanuel just didn’t really care about their liberal base who put them in office.
There is a lot of detritus in the wake of the Obama White House duplicity on the Dawn Johnsen nomination. They humiliated Dawn Johnsen by letting her twist in the wind, wasted a year of her life, disrupted the faculty and student body of the Indiana University School of Law and sold out a huge block of liberal and progressive voters who were the very voters and ground organizers carrying Obama to election in the first place.
Barack Obama and Harry Reid owe an explanation to both Dawn Johnsen, and the voters who worked so hard to elect them, as to why they intentionally left Johnsen’s critical nomination out in the cold so long, and then killed it outright. The main media in the United States owe their readers the duty to ask the questions and demand answers. That much, at a minimum, is owed to the citizens.