Psyche, Science, and Society

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

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

Accountability: Benjamin on Truuth Commission and Obama

Mark Benjamin, in Salon, writes what he is hearing of Obama’s plans for a truth Commission, with possible, though not that likely, future prosecutions. Hanging over the latter is the threat of a blanket Bush pardon for those involved in the torture program:

Obama’s plans for probing Bush torture

President Bush could pardon officials involved in brutal interrogations — but he may also face a sweeping investigation under the new president.

By Mark Benjamin

WASHINGTON — With growing talk in Washington that President Bush may be considering an unprecedented “blanket pardon” for people involved in his administration’s brutal interrogation policies, advisors to Barack Obama are pressing ahead with plans for a nonpartisan commission to investigate alleged abuses under Bush.

The Obama plan, first revealed by Salon in August, would emphasize fact-finding investigation over prosecution. It is gaining currency in Washington as Obama advisors begin to coordinate with Democrats in Congress on the proposal. The plan would not rule out future prosecutions, but would delay a decision on that matter until all essential facts can be unearthed. Between the time necessary for the investigative process and the daunting array of policy problems Obama will face upon taking office, any decision on prosecutions probably would not come until a second Obama presidential term, should there be one.

The proposed commission — similar in thrust to a Democratic investigation proposal first uncovered by Salon in July — would examine a broad scope of activities, including detention, torture and extraordinary rendition, the practice of snatching suspected terrorists off the street and whisking them off to a third country for abusive interrogations. The commission might also pry into the claims by the White House — widely rejected by experienced interrogators — that abusive interrogations are an effective and necessary intelligence tool.

A common view among those involved with the talks is that any early effort to prosecute Bush administration officials would likely devolve quickly into ugly and fruitless partisan warfare. Second is that even if Obama decided he had the appetite for it, prosecutions in this arena are problematic at best: A series of memos from the Bush Justice Department approved the harsh tactics, and Congress changed the War Crimes Act in 2006, making prosecutions of individuals involved in interrogations more difficult.

Instead, a commission empowered by Congress would have the authority to compel witnesses to testify and even to grant immunity in exchange for information. Should a particularly ugly picture emerge, the option of prosecutions would still theoretically be on the table later, however unlikely.

In Obama’s camp, there is a sense among some that such a commission would essentially mean letting Bush get away with crimes. “People have called for criminal investigations,” one person familiar with the talks told me this summer as plans got under way. On Wednesday, a person participating in the talks confirmed that some people involved in the planning felt strongly that the commission would amount to “bullshit” and that Bush officials should be prosecuted to the full extent of the law.

But few think prosecutions are realistic, given the formidable legal hurdles and the huge policy problems competing for Obama’s attention. Among them is the complicated task of closing down the military prison at Guantánamo Bay, which Obama advisors say is a priority. Some observers outside the Obama camp are also questioning how much Democrats really want exposed with regard to interrogation, since top Democrats in Congress were briefed in secret on some of the harshest tactics used by the CIA and appear to have done little, or perhaps nothing, to stop them.

Further complicating the Obama team’s planning is uncertainty about what President Bush might do. On the one hand, a blanket pardon for anyone involved in the interrogations could be viewed by the public as a tacit admission of colossal wrongdoing — after years of public denial — which would do nothing to help Bush’s tarnished legacy. Yet, if the administration fears an investigation will follow Bush out the door in January, they may not want to leave officials exposed to potentially revealing criminal proceedings. Bush might seek to frame a blanket pardon as a preemptive strike against wrongheaded, partisan retribution.

Constitutional scholars say a pardon of this kind would be an unprecedented move — the prospective pardon of not just individuals but entire categories of people, perhaps numbering in the thousands, for carrying out the president’s orders , which the White House has argued all along were legal.

Those scholars agree, however, that Article II of the Constitution gives Bush much latitude: There is no authority that can stop the president from doing so if he wishes, and there is no outside check or balance to revisit such a decision, however controversial it may be. “The president can do with pardoning power whatever he wants,” explained University of Wisconsin Law School professor Stanley Kutler. “It is complete and plenary unto itself.”

A blanket pardon from Bush could cover, for example, anyone who participated in, had knowledge of, or received information about Bush’s interrogation program during the so-called war on terror. Not only are there potentially too many people to name without risking missing somebody, but some of the names are presumably classified.

“The classic pardon is an identifiable individual; here you are talking about potentially thousands of people involved in illegal activities,” explained Jonathan Turley, a professor at George Washington Law School. A blanket pardon of this variety, Turley said, “would allow a president to engage in massive illegality and generally pardon the world for any involvement in unlawful activity.”

There are, in fact, some constitutional scholars who believe a pardon might actually facilitate more complete participation in a fact-finding commission, by removing the threat of looming liability. “Holding people accountable is certainly nice, but in terms of healing the country and moving forward, so is actually getting a clear picture of what happened and letting the public make an informed decision,” said Kermit Roosevelt at the University of Pennsylvania Law School. “If we had a pardon followed by something like a truth and reconciliation commission, that might not be such a bad outcome.” (Roosevelt represents a detainee held at Guantánamo.)

The politics of it would be fraught with danger, however, and could so blemish Bush’s legacy that some doubt he would go so far. “A pardon is an admission of guilt,” noted Donald Kettl, a political science professor at the University of Pennsylvania. Bush has argued for years that his interrogation program was perfectly legal. With a pardon, Kettl said, Bush is essentially saying, “Gee, maybe we did not do the right thing.”

It is not entirely unprecedented for a president to grant a pardon based on a category of behavior, rather than pardoning an individual by name. The day after his inauguration, President Carter pardoned all those who avoided the Vietnam draft by failing to register or by fleeing to Canada. George Washington pardoned participants in the 1794 Whiskey Rebellion. Andrew Johnson pardoned Confederate soldiers in 1865.

But these were pardons designed to foster reconciliation, handed out to categories of individuals who acted on their own conscience, rather than the president’s own allegedly illegal orders. “This would be a different deal completely,” explained Kettl. “It would be anticipating that people thought the official policy of the administration was wrong.”

Add comment November 14th, 2008

APA President Kazdin replies to Arrigo-Wessells letter

APA President Kazdin has replied to the Arrigo-Wessells letter cautioning of repeating the PENS task force problems with the new implementation committee:

Dear Drs. Arrigo and Wessells,

Thank you for your letter regarding the formation of the APA Presidential Advisory Group on the Implementation of the Petition Resolution. I, too, am optimistic that the work of this group will help to unite the organization and enable us to move forward to implement this new policy, which was approved by a vote of our membership.

Over the past few weeks, we have received several recommendations regarding the group process - all that it ought to and ought not to include. In response to your words of caution, I can assure you that the process has been, and will continue to be, open and transparent. While I appreciate your suggestion of an independent monitor, I have invited all three original sponsors of the petition for the very purpose of ensuring that the views and interests of those bringing the petition forward are well represented in the group’s discussions.
I would be grateful if you would forward this response to those you copied on your email.

Thank you.

Best wishes,

Alan

Alan E. Kazdin, Ph.D., ABPP
President, American Psychological Association
John M. Musser Professor of Psychology and Child Psychiatry
Department of Psychology
Yale University
PO Box 208205
New Haven, CT 06520-8205

Add comment November 13th, 2008

Accountability: Prominent talk show host calls for Hague trial for Cheney

As the Bush regime slowly ends, the discussion about how to deal with its multitude of human rights violations has commenced in earnest. From human rights blog Never In Our Names comes word that Gene Burn, prominent West-Coast talk show figure, has changed his mind and now believes that an international tribunal to try Vice President Cheney for torture is justified:

Influential Talk-Show Host Shifts Position: Cheney To The Hague

By blueness

For 30 straight years KGO has been the most listened-to AM radio station in the San Francisco Bay Area. From dusk till dawn, it can also be heard throughout the entirety of the west coast, from Canada to Mexico. KGO pioneered the talk-radio format, long before it was seized and exploited by the rightwing noise machine. The station employs local, non-syndicated hosts, all of whom consistently rank first in their time slots. Hosts run the left-coast political gamut, from the vacuous, muddle-headed centrist Ronn Owens, to the fiery renegade Ray Taliaferro, who contends that a close reading of scripture discloses that Jesus was gay, and most commonly refers to George II as “that idiot out of Texas.”

Occupying the 7-10 p.m. time slot is Gene Burns, who has been in radio for more than 40 years, the past 14 at KGO. Burns is a recently lapsed Libertarian; he sought the party’s presidential nomination in 1984, but, after supporting John Kerry in 2004, this year he made the great leap, and registered as a Democrat. He is a pedant, and something of a blowhard, but is extremely influential with more moderate listeners put off by the station’s fire-breathing lefties. Burns has consistently opposed impeachment proceedings against George II and Darth Cheney as frivolous and unwarranted: these men have not, to his mind, committed impeachable offenses. Challenged by callers contending that these men approved the torture of fellow human beings, Burns has maintained that the United States has not tortured; even waterboarding, to him, does not constitute torture.

Wednesday night, all this changed. After viewing on his local PBS affiliate the documentary Torturing Democracy, Burns told his listeners, he realized he had been wrong. The United States has tortured. It has also engaged in extraordinary renditions, for the purpose of torture. While Burns still believes impeachment to be a non-starter, he has concluded that, in the treatment of prisoners at Guantanamo Bay and in other sites overseas, Dick Cheney is guilty of war crimes and crimes against humanity, and should be brought to trial before an international tribunal at The Hague. With the expectation that, in the course of Cheney mounting his defense, he may implicate George II as equally culpable in the commission of the same crimes.

Burns urged his listeners to view Torturing Democracy, which is available, in full, here. Burns can be an obstinate cuss, not often inclined to admit error: this documentary, which I have not seen, must indeed be powerful. For Burns was heretofore no member of our choir: prior to viewing Torturing Democracy, he was adamant that no such crimes had been committed “in our names.”

I’m not here to scoff at him; I’m here to praise him. Admitting to error is very hard: I struggle with it, all the time, myself. Our outgoing president, of course, famously could not admit to a single mistake made in his first term. Burns is a better man than that. He was eloquent, tonight, in the explanation of his evolution; below is a transcript of some of what he said, taken from the station’s archived audio (which will be available here, if you’d like to listen yourself, until 10 p.m. PST on Thursday).

I now believe that some international human rights organization ought to open an investigation of the Bush administration, I think focused on Vice President Dick Cheney, and attempt to bring charges against Cheney in the international court of justice at The Hague, for war crimes. Based on the manner in which we have treated prisoners at Guantanamo Bay, and the manner in which we have engaged in illegal rendition, that is, surreptitiously kidnapping prisoners and flying them to foreign countries where they could be tortured by foreign agents who do not follow the same civilized standards to which we subscribe.

I’ve always said that I’ve thought that even at Guantanamo Bay the United States was careful to stay on this side of torture. In fact, you may recall that on a couple of occasions we got into a spirited debate on this program about waterboarding, and whether waterboarding was torture. And I took the position that it was not torture, that it was simulated drowning, and that if that produced information which preserved our national security, I thought it was permissible.

And then I saw Torturing Democracy.

And I’m afraid, now that I have seen what I have seen, that I was wrong about that. It looks to me, based on this documentary, as if in fact we have engaged in behavior and practices at Guantanamo Bay, and in these illegal renditions, that are violations of the international human rights code.

And I believe that Dick Cheney is responsible. I believe that he was the agent of the United States government charged with developing the methodology used at Guantanamo Bay, supervising it for the administration, and indulging in practices which are in fact violations of human rights.

Why not George Bush? I think that it would be easier to nail Cheney. And there’s a certain method to this madness: that if you go after Cheney–seriously, I’m talking now about a serious investigation by an international tribunal, and charges brought against him in the international court, so that he would be subject to arrest, and trial, just as Milosevic and some of the people involved in these behaviors in the Balkans were–that that would force Cheney, in his defense, to disclose the degree to which the president, George W. Bush, was culpable in any of this, if culpable at all.

I really found this documentary, Torturing Democracy, very, very disturbing. And I guess the reason that heretofore I have not been such an easy mark on the matter of this kind of charge is that I don’t think I ever saw an organized, systematized review of what we did, and how we did it, as well presented as it was in this documentary.

And it grieves me to say, as an American citizen, that I believe the leadership of our country is responsible for crimes against humanity. But, you know, we can’t be trumpeting about the behavior of others, like Milosevic, and others, if we do not expect ourselves to be held to a similar high standard.

And no matter our desire to preserve and protect our national security, which is uppermost in the minds of all of us, and something which our leaders are sworn to do by oath, if to do that we have to engage in torture, we should not do it.

And as this documentary points out, there is no indication that any significant, credible evidence that made us safer was ever developed or deduced or adduced during these sessions. And in my view, some of these sessions went over the line.

And I’d like to see a panel of international court judges review the evidence. They might not agree. They might find Vice President Cheney not guilty–who knows? But I’d certainly like to see a trial of Dick Cheney as the responsible party in the United States government for developing tortures that were violations of our obligations under international concordants and treaties involving human rights violations.

If you keep listening, you will hear what we–and now he–are up against. The very first caller, an aging veteran, announced that Burns had “disgraced” himself; that “war is hell” and thus such things happen; that to sound such views but two days after Veterans Day constituted an offense against the United States. The caller concluded by saying that it was his belief that Burns should be jailed. Burns, who has a temper, invited the caller to go out and purchase some handcuffs, and then come down to the station to see whether he might succeed in locking them around Burns’ wrists.

A little later came the opposite end of the spectrum: a caller who sneered at Burns for coming too late to the issue, and demanded that Cheney be “publicly executed.”

Somewhere between these extremes must steer the serious people.

Can Dick Cheney be made to stand before The Hague? Maybe. Maybe not. The concept of international criminal tribunals is so fresh, and Darth Cheney is an awfully fat fish. But it is certain that every step taken towards such a day, even if that day is in the end never reached, helps insure that future Cheneys will be less likely to engage in similar behavior. And it is equally true that every sober, serious voice that states that Cheney deserves to be brought before The Hague, helps to push that position farther from fringoid fantasy, and closer to common wisdom.

So welcome to our world, Mr. Burns. And thank you.

Add comment November 13th, 2008

Cautionary letter to APA President Kazdin

UPDATED 11-13-2008. Jean Maria Arrigo and Mike Wessells, two members of the American Psychological Association’s infamous PENS task force (Psychological Ethics and National Security), have written to letter to APA President Kazdin warning of the dangers of repeating PENS flaws in the process of the Implementation Committee for the recently passed APA referendum banning psychologists working in detention centers operating outside of or in violation of international law or the Constitution. [Daily Kos blogger and psychologist Valtin has provided his take on the Implementation Committee in a new post.]:

Dear President Kazdin:

We, Jean Maria Arrigo and Mike Wessells, are writing in response to news of your formation of the Presidential Advisory Group on the Implementation of the Petition Resolution. With this committee, the APA has a new opportunity to unite the organization by effectively implementing the policies widely adopted by vote of the membership.

Yet we also see that setting up the organizational structure, charge, and guidelines for communication and transparency warrants caution. As members of the 2005 Presidential Task Force on Psychological Ethics in National Security (PENS), we wish to warn of certain procedural irregularities in the PENS process that are potential pitfalls for successful implementation of the referendum. These irregularities led to a fraudulent process that undermined the ostensible purpose of PENS:  to develop ethical guidelines for psychologists in national security interrogations.

It appears to us that the fraudulent PENS process was the root cause of many of the APA’s difficulties in the past three years because it prevented true deliberation. As much as anything else, it deprived thoughtful, honest advocates for psychologists’ involvement in interrogations of the opportunity to present a credible case for their position.

Many of the stakeholders to the PENS process are involved in the Implementation process, directly or indirectly. It is therefore crucial that the actual Implementation process — as opposed to the public face of the process — be transparent, fair, and deliberative. To illustrate both the subtlety and the gravity of violations in the PENS procedures, and the potential for violations in the Implementation process, we offer four examples from among a dozen that equally de-legitimized the PENS effort. All of these can be substantiated. Not one has been publicly acknowledged by APA authorities. There were other— in some ways more dramatic and egregious—violations of independent, democratic process, but the following examples particularly signal risks to the work of the new Advisory Committee.

1. As psychologists we are aware that majority influence plays a great role in group decision-making. The undisclosed “observers” to the PENS task force meeting included: the Assistant Director of Social, Behavioral, and Educational Sciences for the White House Office of Science and Technology Policy; the Executive Director for APA Science Policy; a second APA Science Policy staff member; a former National Security Agency psychologist and former director of the Navy Internship Program; and the Director of the APA Practice Directorate. At least the first four of these five had been closely involved in securing defense-related funding for APA programs. And all received the PENS listserv communications. Their presence and involvement was inconsistent with what anyone would understand by the “public face” of the PENS task force.

2. An APA Board liaison to the PENS task force was the first to suggest that the Director of the APA Practice Directorate attend the PENS meeting as an “observer,” because, as he wrote on the pre-meeting PENS listserv, “this TF has direct implications for practice.” In the morning of the first day of the June 26-29, 2005 task force meeting, it was this same Board liaison who proposed confidentiality of the task force proceedings, although no sensitive issues had yet arisen. This subtle intrusion by the APA Board exceeds the official role of Board liaison.

3. The Director of the APA Practice Directorate indeed attended, but not as mere observer. This Director articulated the task force mission as “putting out the fires” of controversy at APA, rather than resolving complex questions in psychological ethics. With cooperation from the task force chair (who was simultaneously vice-chair of the APA Ethics Committee), the Director steered the task force toward policy to be made in extreme haste, secrecy, with only an appearance of unanimity, and with no concrete examples to substantiate the policy.

Further the Director of the Practice Directorate was married to a BSCT psychologist who had served at Guantánamo, one of the theaters of concern to the task force. His spouse was closely involved with Army Surgeon General Kiley and, along with two other task force members, was part of the almost immediate military review of the PENS report with General Kiley. Other task force members employed by the military and intelligence agencies and APA task force organizers were surely aware of these profound conflicts of interest, although the Director disclosed no such influential relationships at the meeting.

4. As is now publicly known, one military member of the task force had been involved in the so-called “reverse engineering” of the Survival Evasion Resistance and Escape (SERE) training program to produce abusive techniques for terror suspects and prisoners of war. At least one of his colleagues on the task force was certainly aware of his severe conflict of interest. Further, four of the task force members served in the chains of command that had been accused of abuses.

The PENS process generated cadres of fierce critics of APA policy, whose researches eventually exposed many of the specific instances and mechanisms of fraud. These same cadres of APA members, international psychologists, human rights scholars, and journalists have their eyes on the Implementation process.

To fulfill the promise of your Presidential Advisory Group on the Implementation of the Petition Resolution, and because the PENS process so deeply damaged trust in APA institutional process, we think three things are needed: (a) a fair and transparent process, (b) committee participants who are free from overt conflicts of interest (whether disclosed or undisclosed), and (c) a reputable, independent monitor. We do not at all question your sincerity. This is not the point. Nevertheless, however far down the path you feel you are to a fair and transparent process, we urge you to arrange for a reputable, independent monitor. Such a practice will finally help put out the fires of controversy at APA over psychological ethics in interrogations.

Thank you very much for your time in considering our letter.

Sincerely,

Jean Maria Arrigo, PhD

Michael Wessells, PhD

UPDATE

APA President Kazdin has replied to the Arrigo-Wessells letter:

Dear Drs. Arrigo and Wessells,

Thank you for your letter regarding the formation of the APA Presidential Advisory Group on the Implementation of the Petition Resolution. I, too, am optimistic that the work of this group will help to unite the organization and enable us to move forward to implement this new policy, which was approved by a vote of our membership.

Over the past few weeks, we have received several recommendations regarding the group process - all that it ought to and ought not to include. In response to your words of caution, I can assure you that the process has been, and will continue to be, open and transparent. While I appreciate your suggestion of an independent monitor, I have invited all three original sponsors of the petition for the very purpose of ensuring that the views and interests of those bringing the petition forward are well represented in the group’s discussions.
I would be grateful if you would forward this response to those you copied on your email.

Thank you.

Best wishes,

Alan

Alan E. Kazdin, Ph.D., ABPP
President, American Psychological Association
John M. Musser Professor of Psychology and Child Psychiatry
Department of Psychology
Yale University
PO Box 208205
New Haven, CT 06520-8205

Add comment November 12th, 2008

Change or continuity in intelligence policy?

The Wall Street Journal has a depressing story. Among the thoughts in here:

The new president could take a similar approach to revising the rules for CIA interrogations, said one current government official familiar with the transition. Upon review, Mr. 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.

Let’s hope they’re totally wrong:

Intelligence Policy to Stay Largely Intact

By Siobhan Gorman

WASHINGTON — President-elect Barack Obama is unlikely to radically overhaul controversial Bush administration intelligence policies, advisers say, an approach that is almost certain to create tension within the Democratic Party.

Civil-liberties groups were among those outraged that the White House sanctioned the use of harsh intelligence techniques — which some consider torture — by the Central Intelligence Agency, and expanded domestic spy powers. These groups are demanding quick action to reverse these policies.

Mr. Obama is being advised largely by a group of intelligence professionals, including some who have supported Republicans, and centrist former officials in the Clinton administration. They say he is likely to fill key intelligence posts with pragmatists.

“He’s going to take a very centrist approach to these issues,” said Roger Cressey, a former counterterrorism official in the Clinton and Bush administrations. “Whenever an administration swings too far on the spectrum left or right, we end up getting ourselves in big trouble.”

On the campaign trail, Mr. Obama criticized many of President George W. Bush’s counterterrorism policies. He condemned Mr. Bush for promoting “excessive secrecy, indefinite detention, warrantless wiretapping and ‘enhanced interrogation techniques’ like simulated drowning that qualify as torture through any careful measure of the law or appeal to human decency.”

As a candidate, Mr. Obama said the CIA’s interrogation program should adhere to the same rules that apply to the military, which would prohibit the use of techniques such as waterboarding. He has also said the program should be investigated.

Yet he more recently voted for a White House-backed law to expand eavesdropping powers for the National Security Agency. Mr. Obama said he opposed providing legal immunity to telecommunications companies that aided warrantless surveillance, but ultimately voted for the bill, which included an immunity provision.

The new president could take a similar approach to revising the rules for CIA interrogations, said one current government official familiar with the transition. Upon review, Mr. 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.

The intelligence-transition team is led by former National Counterterrorism Center chief John Brennan and former CIA intelligence-analysis director Jami Miscik, say officials close to the matter. Mr. Brennan is viewed as a potential candidate for a top intelligence post. Ms. Miscik left amid a slew of departures from the CIA under then-Director Porter Goss.

Advisers caution that few decisions will be made until the team gets a better picture of how the Bush administration actually goes about gathering intelligence, including covert programs, and there could be a greater shift after a full review.

The Obama team plans to review secret and public executive orders and recent Justice Department guidelines that eased restrictions on domestic intelligence collection. “They’ll be looking at existing executive orders, then making sure from Jan. 20 on there’s going to be appropriate executive-branch oversight of intelligence functions,” Mr. Brennan said in an interview shortly before Election Day.

The early transition effort is winning praise from moderate Democrats. “He’s surrounded himself with excellent people — an excellent bipartisan group,” said Rep. Jane Harman, a California Democrat who is chairwoman of the House homeland-security subcommittee on intelligence.

Civil-liberties and human-rights advocates, who helped Mr. Obama win election, are seeking both a reversal of Bush administration policies and expanded investigations into possible illegal actions when the administration sought to track down terrorists after the attacks of Sept. 11, 2001.

“We need to understand what happened,” said Caroline Fredrickson, director of the American Civil Liberties Union’s Washington office.

Most of those being discussed as candidates for director of national intelligence and director of the CIA have staked out a middle ground between safeguarding civil liberties and aggressively pursuing nontraditional adversaries.

Mr. Brennan is a leading contender for one of the two jobs, say some advisers. He declined to comment on personnel matters. Gen. James L. Jones, a former North Atlantic Treaty Organization commander; Thomas Fingar, the chief of analysis for the intelligence director; Joan A. Dempsey, who served in top intelligence and Pentagon posts; former Rep. Tim Roemer of Indiana, who served on the 9/11 Commission; and Ms. Harman have also been mentioned. Ms. Harman has also been cited as a potential secretary of homeland security.

“I’m very flattered that some folks somewhere think I would be qualified for a number of positions,” she said. “But I’m also looking forward to an eighth term in Congress working on many of these issues.”

None of the others could be reached for comment.

Another option for Mr. Obama would be to retain current intelligence Director Mike McConnell, who has said he would stay on for a reasonable time until a successor is named. CIA Director Michael V. Hayden also is open to considering an extension of his time in office, according to a senior intelligence official.

However, Mr. Obama voted against Mr. Hayden’s nomination as CIA director to signal his frustration with the administration’s warrantless-surveillance program, which Mr. Hayden helped launch as National Security Agency director.

Add comment November 11th, 2008