Psyche, Science, and Society

Horton: AP asks wrong questions re: torture prosecutions

Scott Horton responds to the recent AP report I posted the other day:

AP: Obama Will Not Prosecute War Crimes

By Scott Horton

What do journalists do when they have no news to report? They focus on speculation about what might happen. Most of the speculation in transition time focuses on candidates in the inside-the-Beltway quadrennial personnel shuffle. And this is politics as usual: rivals usually connive to plant stories about one another, attempting to get a leg up in the competition. The media routinely floats their stories attributed to unnamed sources. But the latest entry in this series is peculiar. AP reports that two unnamed Obama advisors have stated that there will be no war crimes investigations or prosecutions relating to the Bush Administration’s torture policies.

To start with, the AP piece revolves around a question that is almost insulting in the way it is presented. What president would enter office pledging not to prosecute war criminals, or pledging to prosecute figures from the former administration? Any president who did such a thing would not be worthy of holding the nation’s highest office. Prosecutions should not begin or end on a signal transmitted from the White House. The criminal justice system is supposed to be administered in a fashion that stresses detachment from politics. One of the biggest complaints about the last eight years is that the veneer of political detachment has worn very thin. One thing the voters expect of Barack Obama is that he will rebuild the wall that separates the political side of the government from the law-enforcement side.

But second, it quotes two sources inside the transition team:

Two Obama advisers said there’s little — if any — chance that the incoming president’s Justice Department will go after anyone involved in authorizing or carrying out interrogations that provoked worldwide outrage.

Now as it happens, I agree with the Obama advisors, and almost everyone who has studied the case, that the Justice Department will not bring such charges. Why? First, no one expects that those who carried out instructions from the Bush Administration to use highly coercive interrogation practices, including waterboarding, would be prosecuted. The issue is whether those who made the policies and high-level decisions would be prosecuted. And second, because the Justice Department would be hopelessly conflicted from bringing any prosecution. Justice Department memoranda were concocted, almost certainly in bad faith and after the fact, to authorize and legitimate what happened. In several cases already documented, Justice Department officials were actually in the decision-making process itself. In criminal law terms, they made themselves part of a joint criminal enterprise. We don’t know how extensive Justice’s involvement was, but the current evidence is that it was quite extensive and involved the Attorney General, the Deputy Attorney General, the head of the Office of Legal Counsel, the head of the Criminal Division, the head of the National Security Division and others. It would therefore be impossible for the Justice Department to investigate or bring the appropriate prosecutions, and the change of personnel brought by a new administration would not cure this problem. On the contrary, it would aggravate it because it would add an appearance of retaliation or prosecution motivated by policy differences.

So the AP story sets off asking the wrong question.

But then we have the question of the two anonymous sources. The Obama transition team is enormous and it is peopled, appropriately enough, with a number of figures who have direct experience in the Bush Administration’s war on terror. No problem with that–in fact, Obama would be remiss if he failed to build such experience into his team. But there are a number of names in play right now who have troubling connections to the “dark side” of the intelligence community’s war on terror and who have pressing reasons to lobby against any investigation of any sort. Why? Because their own judgment-calls might come under unpleasant scrutiny. Just some for-instances:

• John Brennan, who regularly surfaces as a key Obama advisor on intelligence issues and is supposedly in the running for a key intelligence community post. Brennan has a completely ambiguous record on the torture issue, depending on whether he speaks from the agency, as a commentator or on behalf of President-Elect Obama.
• Jamie Miscik, another intelligence community careerist who was very close to the WMD in Iraq imbroglio and more recently was a key player at Lehman–and now understandably needs a new roof–is another figure who would clearly rather avoid a probe of the torture issue.
• And finally Jamie Gorelick, a former key Clinton Justice Department official who, according to intelligence community sources, took a whopping retainer from the CIA to counsel and protect the psychologists who crafted the guts of the Bush torture program. Gorelick, a Hillary Clinton partisan, is also a name in play for a senior intelligence post.

But the bottom line is that there should be no call about prosecutions until there has been an investigation. The question is really how should an investigation be conducted, and who should conduct it?

In the end any prosecution would require a special prosecutor, but who should handle the threshold inquiry into whether enough exists to appoint one? Again, the Justice Department has resources for that purpose that cannot properly be put in play. There is one clear answer, which is for President Obama to follow the example of President Ford in his dealings with allegations of intelligence community misconduct with high-level complicity that rocked the mid-seventies. He should appoint a commission to lay bare the facts, putting what the public needs to know on the record. Only then should the call about a special prosecutor be made by the attorney general. He should have the commission’s advice and findings to draw on in the process, and he should take the decision avoiding the political tug-of-war now going down and the dark interests who are driving it.

President Obama shouldn’t be focused on the fate of individual potential defendants. He should care about the nation’s reputation, our commitment to the rule of law, and a process that is worthy of our best traditions and aspirations.

Add comment November 19th, 2008

Novel: The Last Prisoner — Susan Beth Miller

Psychologist and published novelist Susan Beth Miller has posted extensive portions of a novel about torture online after having it rejected by several publishers. Here is her description of it:

My blog includes an intro to my novel, Indigo Rose,(Bantam Dell, 2005) and portions of a new novel, The Last Prisoner, the story of four men who interrogate and abuse (torture) a political prisoner in a South American jail, who later must decide whether to appear before an amnesty commission. I have published four psychology books plus the novel, but The Last Prisoner appears to be unpublishable due to its grim content. I believe the novel has some value, especially after Abu Ghraib.

Read the novel here.

Add comment November 18th, 2008

Dick Cheney, Alberto Gonzales indicted in S. Texas!

This time at least, its for abuses in the US:

Dick Cheney, Alberto Gonzales indicted in S. Texas
Charges related to alleged abuse of prisoners in federal detention centers

Associated Press

McALLEN, Texas — A South Texas grand jury has indicted Vice President Dick Cheney and former Attorney General Alberto Gonzales on charges related to the alleged abuse of prisoners in Willacy County’s federal detention centers.

The indictment criticizes Cheney’s investment in the Vanguard Group, which holds interests in the private prison companies running the federal detention centers. It accuses Cheney of a conflict of interest and “at least misdemeanor assaults” on detainees by working through the prison companies.

Gonzales is accused of using his position while in office to stop an investigation into abuses at the federal detention centers.

Another indictment charges state Sen. Eddie Lucio Jr. with profiting from his public office by accepting honoraria from prison management companies.

The indictments were first reported by KRGV-TV.

Add comment November 18th, 2008

Accountability: Torture, war crimes, and reciprocity

Scott Horton calls attention to a recent study of released Guantanamo detainees [I blogged about the study here, but have not yet finished reading it. Alas, the day job intervenes...]. In addition to the study, Horton calls attention to comments made in a preface by a former US and war crimes judge:

The 43rd President’s Dark Legacy

By Scott Horton

Over the last week, the American press has been filled with drip after drip from smug, generally anonymous Bush Administration clones who promise that when Barack Obama is saddled with the responsibilities of government he will “get real” about the threats presented by terrorists at Guantánamo and will tack away from his promise to shut the infamous prison camp down. But in a remarkable interview with CBS’s Sixty Minutes last night, the president-elect made clear that his commitment to clear, affirmative action was unwavering:

I have said repeatedly that I intend to close Guantanamo, and I will follow through on that. I have said repeatedly that America doesn’t torture, and I’m going to make sure that we don’t torture. Those are part and parcel of an effort to regain America’s moral stature in the world.

Moreover, the Obama transition team are now looking closely at the accountability issue. What should be done about a long track record of torture and other often criminal abuses committed against prisoners under the authority of President Bush? There are no easy answers to that problem, but I venture an approach in my essay “Justice After Bush” in the December issue of Harper’s. The answer must ultimately focus just on the point that Obama identified: America’s moral stature in the world and its commitment to live to the standards it advocates for others.

Here’s a new document that helps put that moral and legal issue in proper perspective. The Human Rights Center of the University of California has issued a compelling new report entitled “Guantánamo and Its Aftermath.” The report focuses on an important but largely neglected issue: what effect did the extraordinary detention arrangements at Guantánamo have on those who have been released? While the Bush Administration is fond of painting the Gitmo detainees in terms of pure villainy, it tends to obscure the fact that it has released roughly two-thirds of the total number of detainees. Most of them have returned to their homelands and tried to resume normal lives. The Human Rights Center report has been meticulously researched and is a “just the facts, ma’am” recounting of what happened to these former detainees. The five hundred “alumni” of Gitmo are now scattered in thirty different countries. One of the American guards at Gitmo was quoted telling a British detainee “if you didn’t hate America when you came here, you sure will after what we’ve done to you.” That is borne out by the study, which shows that a majority of the detainees harbor bitter thoughts about the United States over their treatment.

Only six of 62 surveyed detainees were found to have secured regular employment, and many lost their homes, businesses, and assets. Others report being shunned by their neighbors—often being suspected of being American spies because of their lengthy incarceration by the United States. But the most troubling details go to the medical condition of the released detainees. Two-thirds report psychological and emotional trauma, a statistic that validates concerns officially expressed by the Red Cross after it studied the American treatment standards. In nearly all of these cases it turned out that the United States had no basis to hold the detainees to start with; most often they were turned over as part of a scam on the United States by Pakistani intelligence and by Afghanistani war lords eager to turn a quick buck through U.S. bounty payments. Yet the United States has neither offered nor paid any compensation for falsely imprisoning these detainees nor for torturing or mistreating them. In fact, it hasn’t offered an apology to a single one. It has publicly held to a now totally untenable position—that it had good reason to hold every detainee.

All of this distracts from the vital fact that a number of prisoners held at Guantánamo are indeed dangerous individuals who have committed serious crimes and present a security threat to the United States. The generous admixture of the totally innocent into the picture and the failure to properly vet and review the cases (something which was advocated, as we now know, both by the military and the CIA, but was vetoed by Vice President Cheney’s chief of staff, David Addington) has seriously undermined America’s credibility and added to the strain on America’s reputation for justice.

The most remarkable part of the report is certainly the forward written by Patricia Wald, one of the nation’s most respected retired federal appellate judges. Judge Wald has a credential that few of her colleagues share: she left the court of appeals to serve as a war crimes tribunal judge for Yugoslavia and she also served as a member of the Commission President Bush constituted to look at the false allegations of WMDs in Iraq. Judge Wald compared the current allegations surfacing about detainee abuse authorized by President Bush with the cases she examined coming out of the war in Yugoslavia—that resulted in the indictment and conviction of a number of political leaders in the Balkans. Here’s what she has to say:

There are bound to be casualties when any nation veers from its domestic and international obligations to uphold human rights and international humanitarian law. Those casualties are etched on the minds and bodies of many of the 62 former detainees interviewed for this report, many of whom suffered infinite variations on physical and mental abuse, including intimidation, stress positions, enforced nudity, sexual humiliation, and interference with religious practices.

Indeed, I was struck by the similarity between the abuse they suffered and the abuse we found inflicted upon Bosnian Muslim prisoners in Serbian camps when I sat as a judge on the International Criminal Tribunal for the former Yugoslavia in The Hague, a U.N. court fully supported by the United States. The officials and guards in charge of those prison camps and the civilian leaders who sanctioned their establishment were prosecuted—often by former U.S. government and military lawyers serving with the tribunal—for war crimes, crimes against humanity and, in extreme cases, genocide.

There should be no confusion about what is being said here. One of America’s most prominent judges–and one of our few judicial experts on war crimes–is saying that the factual basis exists to charge officials of the Bush Administration. The test is fairly simple: is the United States now prepared to apply to itself the same legal standards that the United States applied to political leaders in the former Yugoslavia? It is in the end a simple question of justice. And a question of whether the United States is prepared itself to live by the standards it imposes on others.

Add comment November 17th, 2008

Guantanamo: How many children were held?

The ACLU raises the issue of government lying about the number of children detained at Guantanamo.This follows a release last week on incontrovertible evidence that the Pentagon was distorting the number of children held. It appears that virtually no claim made by US authorities regarding detention and interrogation operations is reliable:

Pentagon Admits Number of Guantánamo’s Children is Higher than Originally Disclosed

An AP article today announced the Pentagon has admitted that 12 children under the age of 18 have been held at Guantánamo since it opened in 2002. The news report comes on the heels of a study released last week by the U.C. Davis Center for the Study of Human Rights in the Americas, showing that the U.S. has held at least 12 juveniles at Guantánamo.

These reports confirm what the ACLU has been saying for months: the U.S. government has been lowballing the number of children it has imprisoned at Guantánamo. In a submission to the U.N. Committee on the Rights of the Child in May, the U.S. claimed that eight juveniles have ever been held at the detention camp and only two prisoners currently at Guantánamo were children at the time of their transfer to the prison. Yet in an ACLU report we issued that same month, Soldiers of Misfortune, we said that prisoner lists released in response to Freedom of Information Act requests show the number is closer to 23, while some sources estimate the number of youth held at Guantánamo as high as 60.

At a U.N. review session in Geneva, the ACLU also pointed out that the U.S. had failed to count a third prisoner currently at Guantánamo, Mohammed El-Gharani (also known as Muhammed Al-Qarani), who was only 14 when first captured and has reportedly attempted suicide several times while in custody at Guantánamo. U.N. officials of the Committee on the Rights of the Child demanded that U.S. officials explain why discrepancies in the figures of child detainees may exist, pointing out that the U.S. had failed to count El-Gharani. The government delegation’s inadequate answer? It’s tough to determine the number of teens we’ve detained at the Navy base.

In July, the ACLU renewed calls for the U.S. to release accurate numbers for the children imprisoned at Guantánamo, after an attorney for the U.K. non-profit Reprieve said testimonies collected by the NGO, which represents 30 inmates at Guantánamo, indicate the actual number is much higher than 22.

As the number of children whom the U.S. owns up to detaining climbs higher, it is becoming crystal clear that there is no transparency in the government’s Guantánamo detention practices. And as the U.S. government’s past miscalculations of child prisoner statistics are revealed, it proves that there is a profound lack of accountability for Guantánamo policies, even when children are concerned.

Sadly, this is not the first time the Bush administration has misled a human rights body and deflected public and institutional scrutiny to avoid full accountability for its Guantánamo policies. But it is not too late to correct past wrongs: Delay the upcoming trials of two of the remaining detainees who have been held since they were juveniles and assess their eligibility for rehabilitation and reintegration into society. As alleged former child soldiers, the two detainees (Omar Khadr, who was captured when he was 15, and Mohamed Jawad, who was captured when he was 16 or 17), should be treated first and foremost as candidates for rehabilitation and reintegration into society, not subjected to further victimization.

Add comment November 17th, 2008

Will Guantanamo survive Guantanamo?

The New York Times asks if Obama will support a new law authorizing detention without trial:

Post-Guantánamo: A New Detention Law?

By William Glaberson

As a presidential candidate, Senator Barack Obama sketched the broad outlines of a plan to close the detention center at Guantánamo Bay, Cuba: try detainees in American courts and reject the Bush administration’s military commission system.

Now, as Mr. Obama moves closer to assuming responsibility for Guantánamo, his pledge to close the detention center is bringing to the fore thorny questions under consideration by his advisers. They include where Guantánamo’s detainees could be held in this country, how many might be sent home and a matter that people with ties to the Obama transition team say is worrying them most: What if some detainees are acquitted or cannot be prosecuted at all?

That concern is at the center of a debate among national security, human rights and legal experts that has intensified since the election. Even some liberals are arguing that to deal realistically with terrorism, the new administration should seek Congressional authority for preventive detention of terrorism suspects deemed too dangerous to release even if they cannot be successfully prosecuted.

“You can’t be a purist and say there’s never any circumstance in which a democratic society can preventively detain someone,” said one civil liberties lawyer, David D. Cole, a Georgetown law professor who has been a critic of the Bush administration.

Although the nation has long had limited legal procedures for detaining dangerous people who have not been convicted of a crime, the issue has become particularly controversial in the context of Guantánamo, where some detainees have been held for almost seven years without being charged.

Whether the Obama administration should push for a preventive detention law has inspired “a very hot and serious debate,” said Ken Gude, a national security scholar at the liberal Center for American Progress, adding, “I’ve had conversations with progressives who think it is a good idea and conservatives who think it’s a terrible idea.”

The president-elect’s transition office would not comment on whether that idea was even under discussion. But human rights groups have been mounting arguments to counter pressure that they say is building on Mr. Obama to show toughness, perhaps by echoing the Bush administration’s insistence that some detainees may need to be held indefinitely.

The international law of warfare provides authority for governments to hold captured enemy fighters until the completion of a conflict. Tens of thousands of German and Italian prisoners of war were held inside the United States during World War II.

But particularly inasmuch as the Bush administration invoked that authority as a basis for its much-criticized detention policies, a move by Mr. Obama to seek explicit authorization for indefinite detention without trial would be seen by some of his supporters as a betrayal.

Opponents of a preventive detention law say that continuing to treat captives as detainees instead of defendants in court would support terrorists’ self-image as warriors rather than criminals. And though the Guantánamo center might be closed, they say, the new law would effectively import Guantánamo and its image into the United States.

“Not only do you not need a system of preventive detention, but it would perpetuate the problem of Guantánamo and put us right back in the same dead end we are in now,” said Elisa Massimino, executive director of Human Rights First.

On the other hand, some proponents of such a law say it would clarify questions left murky by the Bush administration’s years of legal battles over Guantánamo. Benjamin Wittes, a fellow at the Brookings Institution, argued in a book published in June that Americans needed to cross a “psychological Rubicon” and accept the idea that preventive detention was a necessary tool for fighting terrorism.

“I’m afraid of people getting released in the name of human rights and doing terrible things,” Mr. Wittes said in an interview.

He said debates over Guantánamo had created a mythology that American law permitted detention only upon conviction of a crime. Locking up mentally ill people who are deemed dangerous, he noted, is an accepted American legal practice.

At the heart of the debate about whether a preventive detention law is necessary is uncertainty about the risks of criminal trials. Some lawyers warn that given the nature of evidence against some Guantánamo detainees, prosecutors may not be able to convict them.

“We have lots of information that is reliable, that tells us someone is a threat and that cannot be proved in court,” said Andrew C. McCarthy, a former federal terrorism prosecutor who is now director of the Center for Law and Counterterrorism.

Putting detainees on trial in American courts could be difficult in part because suspects captured in war do not receive protections, like warnings against self-incrimination, that are standard police practice. And much evidence against the detainees is classified; intelligence officials say it cannot be disclosed.

Further, some interrogation practices, including the simulated-drowning technique of waterboarding, might leave crucial government evidence unacceptable to American judges.

Jack L. Goldsmith, a former Justice Department official in the Bush administration who has written a book critical of some of the administration’s legal strategies, is among those calling for a preventive detention law.

Professor Goldsmith, who teaches at Harvard Law School, said in an interview that he believed the administration had correctly asserted a right to detain the men held at Guantánamo. But, he said, Congressional approval would “ensure that we can legitimate holding people for a long term.”

In the absence of such a law, any plan to move even some of the remaining 250 Guantánamo prisoners to the United States would require a careful analysis of the authority to hold the detainees, several of whom have said they would relish an opportunity to kill Americans.

In the end, the Obama administration may conclude that it is simply not feasible to seek a new preventive detention measure. Doing so could portray the new administration as following in the footsteps of President Bush, surely an unlikely goal as Mr. Obama sorts through his options.

Add comment November 17th, 2008

Torture we can believe in?

Glenn Greenwald warns that a top Obama adviser, who is reportedly being considered for CIA Director, was a strong supporter of the Bush administration’s torture, rendition, and wiretapping programs. Let’s hope this is a sick rumor:

John Brennan and Bush’s interrogation/detention policies

By Glenn Greenwald

Last Wednesday, I wrote:

It simply is noteworthy of comment and cause for concern — though far from conclusive about what Obama will do — that Obama’s transition chief for intelligence policy, John Brennan, was an ardent supporter of torture and one of the most emphatic advocates of FISA expansions and telecom immunity.

Yesterday, Andrew Sullivan noted that observation but then linked to this post from James Gordon Meek of the Counterrorism blog, which reported that Brennan — a top CIA aide to George Tenet during most of the Bush administration — is a leading candidate to replace Mike McConnell and become Obama’s Director of National Intelligence.  Meek, not providing any links or citations, wrote:  ”Among many things Democrats like about the softspoken Brennan are his anti-torture views“ (emphasis added).  Andrew is right when he says:  “They both can’t be right.”

My statement about Brennan was based on several pieces of compelling evidence.  First, there is this detailed New Yorker article on Bush’s secret interrogation programs by Jane Mayer, unquestionably one of the nation’s best and most reliable reporters on these matters.  She wrote:

Without more transparency, the value of the C.I.A.’s interrogation and detention program is impossible to evaluate. Setting aside the moral, ethical, and legal issues, even supporters, such as John Brennan, acknowledge that much of the information that coercion produces is unreliable. As he put it, “All these methods produced useful information, but there was also a lot that was bogus.

Mayer explicitly identified Brennan –with whom she spoke concerning these programs — as a “supporter.”

Then there is Brennan’s December 5, 2005 appearance on The News Hour with Jim Lehrer, in which he vehemently defended the Bush administration’s use of rendition — one of the key tools to subject detainees to torture:

JOHN BRENNAN: I think over the past decade it has picked up some speed because of the nature of the terrorist threat right now but essentially it’s a practice the United States and other countries have used to transport suspected terrorists from a country, usually where they’re captured to another country, either their country of origin or a country where they can be questioned, detained or brought to justice. . . .

MARGARET WARNER: So was Secretary Rice correct today when she called it a vital tool in combating terrorism?

JOHN BRENNAN: I think it’s an absolutely vital tool. I have been intimately familiar now over the past decade with the cases of rendition that the U.S. Government has been involved in. And I can say without a doubt that it has been very successful as far as producing intelligence that has saved lives.

MARGARET WARNER: So is it — are you saying both in two ways — both in getting terrorists off the streets and also in the interrogation?

JOHN BRENNAN: Yes. The rendition is the practice or the process of rendering somebody from one place to another place. It is moving them and the U.S. Government will frequently facilitate that movement from one country to another. . . .

Also I think it’s rather arrogant to think we’re the only country that respects human rights. I think that we have a lot of assurances from these countries that we hand over terrorists to that they will, in fact, respect human rights.

And there are different ways to gain those assurances. But also let’s say an individual goes to Egypt because they’re an Egyptian citizen and the Egyptians then have a longer history in terms of dealing with them, and they have family members and others that they can bring in, in fact, to be part of the whole interrogation process.

Even when CBS News — for which Brennan was serving as an intelligence analyst — was reporting on the dreadful case of Maher Arar, the Canadian citizen whom the Bush administration abducted at JFK Airport and rendered to Sryia for 10 months to be tortured only for it to then be revealed that he had no connection whatsoever to terrorism, Brennan was defending the rendition program:

CBS NEWS: Despite Arar’s experience, this former counterterrorism official says “rendition” does have its place.

Mr. JOHN BRENNAN (CBS News Terrorism Analyst, Former Director, National Counterterrorism Center): I think it allows us to have the option to move a person who is involved in terrorism or terrorism-related activities to a country where they can be effectively questioned or prosecuted.

In November, 2007, Brennan — in an interview with CBS News’ Harry Smith — issued a ringing endorsement for so-called “enhanced interrogation tactics” short of waterboarding:

SMITH: You know, this all becomes such a giant issue because the president has gone on record so many times saying the United States does not torture. If we acknowledge that this kind of activity [waterboarding] goes on, you know, what does that mean, exactly, I guess?

Mr. BRENNAN: Well, the CIA has acknowledged that it has detained about 100 terrorists since 9/11, and about a third of them have been subjected to what the CIA refers to as enhanced interrogation tactics, and only a small proportion of those have in fact been subjected to the most serious types of enhanced procedures.

SMITH: Right. And you say some of this has born fruit.

Mr. BRENNAN: There have been a lot of information that has come out from these interrogation procedures that the agency has in fact used against the real hard-core terrorists. It has saved lives. And let’s not forget, these are hardened terrorists who have been responsible for 9/11, who have shown no remorse at all for the deaths of 3,000 innocents.

In the same interview, Brennan even defended — or at least justified — Michael Mukasey’s refusal to say whether waterboarding was “torture,” on the ground that by doing so, Mukasey would be admitting that the President broke the law (as though that is a valid reason for a prospective Attorney General to refuse to opine on a legal matter):

But I think Judge Mukasey is in a very difficult position right now as the attorney general nominee, to be asked whether or not this is torture. And if torture, then, is unconstitutional or illegal, they’re asking whether or not waterboarding is illegal and whether or not the individuals, which includes the president and others–if it was used, who authorized and actually used this type of procedure may be subject to some type of judicial action.

And in July, 2008, NPR attributed Obama’s reversal on FISA and telecom immunity to the fact that he was relying on the advice of Brennan, an emphatic supporter of those policies:

What’s important here is Obama’s reference to the information he’s received. He’s advised on intelligence matters by John Brennan, the former director of the National Counterterrorism Center. Like many intelligence professionals, Brennan says the FISA program is essential to the fight against terrorism. By adopting Brennan’s view, Obama improves his standing with the intelligence community. For someone looking ahead to a presidential administration, that’s important.

In fairness, Brennan, over the last couple of years, as he’s become more attached to Obama’s campaign, has several times said that waterboarding specifically is wrong, that it is “inconsistent with American values and it’s something that should be prohibited.”  In a 2006 PBS interview, he said that “the dark side has its limits”; that ”we’re going to look back on this time and regret some of the things that we did, because it is not in keeping with our values”; and, to his credit, he urged that there be much greater openness in debating policies such as eavesdropping and interrogation.

As I noted the other day, Obama is going to have a wide panoply of advisers and, especially now before they’re appointed, it’s important not to draw unwarranted conclusions or to believe the endless parade of gossip about who is going to be appointed to what positions. Still, Brennan has been and continues to be an extremely important adviser for Obama on intelligence issues.  His views on past administration conduct are, in many important instances, clearly disturbing and bear watching.

* * * * *

Last month, I interviewed Harper’s Scott Horton regarding a piece he had written on the efforts of several PBS officials, including Jay Rockefeller’s wife (the CEO of Washington’s PBS affiliate) to block broadcast of the documentary Torturing Democracy, which compellingly documents how virtually all of the torture and other illegalities and abuses of America’s interrogation programs were authorized and ordered at the highest levels of the Bush administration (of which waterboarding is but one small example).

That documentary is now available to be viewed in its entirety online — here — and I can’t recommend it highly enough.  Though it includes a few standard documentary tactics that I could do without (ominous music, grave-toned narration, black-and-white up-close photos of the villains), it is an extraordinarily well-documented account of America’s torture program over the last seven years and, most informatively, the role that top Bush officials played in those programs.  Notably, most of the sources on which it relies are former U.S. military and Bush administration officials who waged courageous though ultimately unsuccessful battles to halt these programs.

I’m particularly amazed that someone could be aware of this set of facts — could know that our highest government officials deliberately and knowingly authorized torture techniques that are war crimes under both U.S. law and international treaties to which we are a party — and still argue, as so many do, that it would be wrong to hold these political officials accountable for the laws they systematically violated.  It’s easy to say how horrendous one finds torture to be.  But those who simultaneously advocate that American political leaders should be immunized from the consequences of their criminality — that, in essence, we should refrain from enforcing these laws — are proving that those are empty words indeed.

UPDATE:  The aforementioned James Gordon Meek, who is the Washington correspondent for The New York Daily News, sent me a reply this morning by email, which is posted here.  My response to him is also posted there.

Add comment November 17th, 2008

Accountability: Are torture trials out?

Obama advisers are telling the AP that it is unlikely that there will be torture prosecutions:

Obama advisers: No charges likely vs interrogators

Obama advisers say no charges likely against workers who authorized harsh interrogation methods

By Lara Jakes Jordan

Barack Obama’s incoming administration is unlikely to bring criminal charges against government officials who authorized or engaged in harsh interrogations of suspected terrorists during the George W. Bush presidency. Obama, who has criticized the use of torture, is being urged by some constitutional scholars and human rights groups to investigate possible war crimes by the Bush administration.

Two Obama advisers said there’s little — if any — chance that the incoming president’s Justice Department will go after anyone involved in authorizing or carrying out interrogations that provoked worldwide outrage.

The advisers spoke on condition of anonymity because the plans are still tentative. A spokesman for Obama’s transition team did not respond to requests for comment Monday.

Additionally, the question of whether to prosecute may never become an issue if Bush issues pre-emptive pardons to protect those involved.

Obama has committed to reviewing interrogations on al-Qaida and other terror suspects. After he takes office in January, Obama is expected to create a panel modeled after the 9/11 Commission to study interrogations, including those using waterboarding and other tactics that critics call torture. The panel’s findings would be used to ensure that future interrogations are undisputedly legal.

“I have said repeatedly that America doesn’t torture, and I’m going to make sure that we don’t torture,” Obama said Sunday on CBS’ “60 Minutes.” “Those are part and parcel of an effort to regain America’s moral stature in the world.”

Obama’s most ardent supporters are split on whether he should prosecute Bush officials.

Asked this weekend during a Vermont Public Radio interview if Bush administration officials would face war crimes, Senate Judiciary Chairman Patrick Leahy flatly said, “In the United States, no.”

“These things are not going to happen,” said Leahy, D-Vt.

Robert Litt, a former top Clinton administration Justice Department prosecutor, said Obama should focus on moving forward with anti-torture policy instead of looking back.

“Both for policy and political reasons, it would not be beneficial to spend a lot of time hauling people up before Congress or before grand juries and going over what went on,” Litt said at a Brookings Institution discussion about Obama’s legal policy. “To as great of an extent we can say, the last eight years are over, now we can move forward — that would be beneficial both to the country and the president, politically.”

But Michael Ratner, a professor at Columbia Law School and president of the Center for Constitutional Rights, said prosecuting Bush officials is necessary to set future anti-torture policy.

“The only way to prevent this from happening again is to make sure that those who were responsible for the torture program pay the price for it,” Ratner said. “I don’t see how we regain our moral stature by allowing those who were intimately involved in the torture programs to simply walk off the stage and lead lives where they are not held accountable.”

In the years after the Sept. 11, 2001, terror attacks, the White House authorized U.S. interrogators to use harsh tactics on captured al-Qaida and Taliban suspects. Bush officials relied on a 2002 Justice Department legal memo to assert that its interrogations did not amount to torture — and therefore did not violate U.S. or international laws. That memo has since been rescinded.

At least three top al-Qaida operatives — including 9/11 mastermind Khalid Sheik Mohammed — were waterboarded in 2002 and 2003 because of intelligence officials’ belief that more attacks were imminent. Waterboarding creates the sensation of drowning, and has been traced back hundreds of years and is condemned by nations worldwide.

Bush could take the issue of criminal charges off the table with one stroke of his pardons pen.

Whether Bush will protect his top aides and interrogators with a pre-emptive pardon — before they are ever charged — has become a hot topic of discussion in legal and political circles in the administration’s waning days. White House deputy press secretary Tony Fratto declined to comment on the issue.

Under the Constitution, the president’s power to issue pardons is absolute and cannot be overruled.

Pre-emptive pardons would be highly controversial, but former White House counsel Arthur B. Culvahouse Jr. said it would protect those who were following orders or otherwise trying to protect the nation.

“I know of no one who acted in reckless disregard of U.S. law or international law,” said Culvahouse, who served under President Ronald Reagan. “It’s just not good for the intelligence community and the defense community to have people in the field, under exigent circumstances, being told these are the rules, to be exposed months and years after the fact to criminal prosecution.”

The Federalist Papers discourage presidents from pardoning themselves. It took former President Gerald Ford to clear former President Richard Nixon of wrongdoing in the 1972 Watergate break-in.

Add comment November 17th, 2008

Will Obama follow through on pledge to end “enhanced interrogation” program?

CQ Politics asks if Obama will follow through on his promise to restrict the CIA to use only the tactics in the Army Field Manual. The AFM is problematic enough, as it allows the use of isolation, sensory deprivation, and “fear up harsh.” However, it would be a decided advance over the Bush-era “enhanced interrogation” program:

Hill Democrats Wait for Obama Stance on Interrogation Standards

By Tim Starks

Top Democrats on congressional intelligence panels could be heading for conflict with President-elect Barack Obama over interrogation policies, a subject over which they often clashed with President Bush.

Obama said earlier this year he supported legislation that would have mandated that the CIA and other agencies subscribe to a 2006 Army field manual’s guidelines on interrogation practices, which would have the effect of banning harsh treatment of detainees such as waterboarding. But some media reports have raised questions about whether Obama would use his executive powers to mandate the same interrogation standards once he is in the White House.

Sen. Dianne Feinstein , D-Calif., one of Congress’ leading proponents of banning harsh interrogation methods, is expected to take over the gavel at the Intelligence Committee.

“Sen. Feinstein intends to introduce legislation that would require America’s intelligence agencies to follow the Army field manual in interrogations; to prohibit the use of contractors in interrogations; to grant the International Committee of the Red Cross access to detainees; and to close the Guantánamo Bay detention facility within one year,” said a spokesman, Phil LaVelle. “If President Obama accomplishes these goals through executive action, then we won’t need to pursue them legislatively as well.”

Rep. Rush Holt, a New Jersey Democrat who chairs the select Appropriations subcommittee that recommends intelligence funding, said this week that Obama should take seven steps to improve the treatment of detainees. An aide to Holt said that he expected a standard of treatment during interrogations that is at least equal to that of the Army field manual.

“While an executive order will not remove the need for legislation on the issue, it is a way for President-elect Obama to put an immediate halt to our government’s use of torture during interrogations and to prevent secret detentions,” said Holt, chairman of the Select Intelligence Oversight Panel. “By exercising his authority and acting quickly, he will begin to restore our moral leadership on the issue and repair some of the harm that has been done to our international reputation.”

Although Obama issued a statement during the campaign supporting the idea of applying the Army field manual interrogation standard to all agencies, not just the Pentagon, a senior campaign adviser to Obama left the door open to applying another standard.

“He [believes] torture not be allowed in any form or fashion in any part of the federal government, and he would make sure that was the case,” said John Brennan, who served under former CIA chief George J. Tenet in a variety of capacities at a time when the agency has since acknowledged it waterboarded a small number of terror suspects.

“Whether the Army field manual is comprehensive enough to cover all those tactics and techniques, that’s something I think he’d look to his national security advisers for,” Brennan said in an interview with CQ in August.

The Wall Street Journal, citing a “current government official familiar with the transition,” reported this week that “Obama may decide he wants to keep the road open in certain cases for the CIA to use techniques not approved by the military, but with much greater oversight.”

Opponents of using the Army field manual standard at the CIA said that interrogators there are more experienced than Pentagon interrogators and therefore are better equipped to apply techniques not listed in the manual.

The bill that included the Army field manual guidelines (S 2996) stalled this summer.

Feinstein’s expected move to chair the Intelligence panel took an additional step forward Friday when the incumbent, John D. Rockefeller IV , D-W.Va., wrote in an e-mail to staff that he would be leaving to take over the Commerce, Science and Transportation Committee. The move would have to be approved by the Democratic steering committee and caucus.

“The decision to do so was extremely difficult for me,” Rockefeller wrote. “The critical importance of rebuilding America’s infrastructure and sagging economy ultimately tipped the balance in my thinking and lead me to relinquish chairmanship of a committee that I love and of a staff who individually and collectively are a continual source of pride for me.”

Add comment November 16th, 2008

Prosecutor in search of justice based upon truth

Scott Horton writes of an amazingf prosecutor, one who has made it a priority to investigate prior convictions and free the innocent. If only there were more prosecutors like him, rather than the “get a conviction at costs” sort…

In Praise of a Prosecutor

By Scott Horton

What makes a bad prosecutor? It’s simple: Does the prosecutor’s longing for the public limelight, his aspirations for public office, come to overwhelm his dedication to justice, to simply doing the right thing? It’s said that a famous chief prosecutor from Dallas, Henry Wade, summed up the thinking that goes into a really bad prosecutor like this: “any prosecutor could convict a guilty man, but… it takes a real pro to convict an innocent man.”

Each year Bob Bennett, a former federal prosecutor who now heads his own litigation firm in Houston, Texas, publishes an invaluable list of the “ten worst prosecutors in the United States.” In the era of Bush, the competition to make the list has grown fierce. Last year, Bennett’s list was a sort of Bush-justice rogues gallery, starting with the world’s worst prosecutor, the disgraced (but still not indicted) former Attorney General Alberto Gonzales. It’s worth a read.

The Bush Administration has been a breeding grounds for this kind of abuse, stoking and rewarding it. But it’s worth remembering that there are honorable, dedicated, professional prosecutors at work, even in the Bush team—men like David Iglesias and David McKay, and women like Carol Lam. (They were all fired, of course.) And today’s Wall Street Journal brings an account of another prosecutor worthy of the name: Dallas County District Attorney Craig Watkins. And if there’s one trait that Watkins brings to the job, it’s a dedication to justice and a determination to right the injustices of the long line of legendarily bad prosecutors who went before him–including Henry Wade.

Craig Watkins may be the only prosecutor in America who is making his name getting people out of prison. As district attorney of Dallas County, Mr. Watkins is using DNA evidence to investigate more than 400 guilty verdicts notched up by his predecessors. His office’s Conviction Integrity Unit, launched last year for this purpose, has so far cleared six men wrongly convicted of rape, murder or robbery. In the past two decades, more than 200 convicts nationwide have been freed thanks in part to DNA testing. The tests involve taking biological material such as blood from the person convicted and comparing it to a sample left at the crime scene…

Mr. Watkins’s approach marks a change for Dallas, criticized for decades as a convict-at-all-costs county. It gained national notoriety in 1988 with the release of The Thin Blue Line, a documentary recounting the case of a man railroaded by prosecutors and wrongly convicted of murdering a police officer. Dallas County has had a string of district attorneys with tough-on-crime reputations stretching back to the legendary Henry Wade. Mr. Wade held the position from 1951 through 1986. He prosecuted Jack Ruby for the murder of Lee Harvey Oswald and was the named defendant in Roe v. Wade, the Supreme Court case that decriminalized abortion. Mr. Wade was famous for never losing a case he personally prosecuted, and for getting juries to impose the death penalty nearly every time he asked. His staff of assistants was almost as successful, and all told, won convictions in more than 150,000 cases.

Of course, there are a number of prosecutors who are riled up about Watkins. They think he’s giving the criminal justice system a bad name by showing that it misfired. These are precisely the sort of prosecutors whose indifference to justice is causing our system to rot from within.

Watkins is doing God’s work and furnishing an example to the new U.S. attorneys who will shortly be appointed by Barack Obama. They have a Herculean task–restoring public confidence in a Justice Department which has been transformed into a cesspool of unethical conduct and corruption–before them. And they will have to start with a stern look at the ineptitude and misconduct of their predecessors–including cases like the prosecution of Alabama’s Don Siegelman, Mississippi’s Paul Minor and Wes Teel, and Pennsylvania’s Cyril Wecht—that are now a blot on the nation’s reputation for justice.

Add comment November 15th, 2008