Well, the long-awaited, and long-delayed Office of Professional Responsibility [OPR] report on the writing of the “Justice” Department Office of (Il)Legal Counsel torture memos came out Friday. The report in its three drafts can be found here. No surprise that the Obama administration manages to say “naughty” without any semblance of accountability.
The torture memo author John Yoo is excused, according to DoJ hack David Margolis, because he simply demonstrated “poor judgment” in claiming that the abhorrent and patently illegal was legal. Jay Bybee was excused because he, according to Margolis, didn’t pay attention when he signed off on torture.
The circle is now closed and smoothed:
White House desires torture
CIA demands legal cover
OLC asked to provide legal rationale
CIA and White House tell what they want OLC memos to say; CIA provides the so-called “evidence” of safety of torture techniques
OLC writes the memos, following instructions
Obama White House then says no one can be prosecuted because they followed the memos
Memo authors are immune because there was no standard saying that incompetent work on demand designed to legalize hitherto illegal activities is unethical
Thus, patently illegal activities are able to carried out with no legal culpability for anyone
A beautiful job, now completed by Obama-Holder Justice Department hack Margolis. Future lawless administrations now have a ready template to use to provide legal rationale for any abuses they desire.
This clearing of the torture lawyers is not the first time the Justice Department has covered over abuses by its attorneys Department prosecutors repeatedly withhold exculpatory evidence from defense attorneys. In fact, Department protection of its unethical lawyers happens so often that the OPR is referred to as the “Roach Motel, because, as Boston attorney Harvey Silverglate explains: “cases go into the Roach Motel and never come out.”
However, we shouldn’t believe that the (In)Justice Department is unconcerned with problematic actions by its attorneys. Rather, they appear to prefer going after those who put professional ethics above institutional loyalty. While closing its eyes to abuses committed by those providing the legal rationale for torture, DoJ “ethics” hawks were ever vigilant in persecuting former DoJ attorney Jesselyn Radack for the crime of correctly telling field operatives that John Walker Lindh was entitled to an attorney and for refusing to go along with official lies afterward.
On December 7, 2001, I fielded a call from a Criminal Division attorney named John DePue. He wanted to know about the ethical propriety of interrogating “American Taliban” John Walker Lindh without a lawyer being present. DePue told me unambiguously that Lindh’s father had retained counsel for his son. I advised him that Lindh should not be questioned without his lawyer….
I was forced out of my job, fired from my subsequent private sector job at the government’s behest, placed under criminal investigation without any charges ever being brought, referred for disciplinary action to the state bars where I’m licensed as a lawyer, and put on the “No-Fly” List.
In an interview by Scott Horton, Radack explains the contrast between her treatment and that of the torture memo writers:
action stemming from advice I gave in a terrorism caseand my advice was to permit an American terrorism suspect to have counsel.
Contrary to OPR’s own policies, it hastily and vindictively forwarded my case to the state bars in which I’m licensed, absent a finding of “professional misconduct,” much less a finding of “intentional misconduct or reckless disregard of an applicable standard or obligation”the benchmark that OPR uses. Instead, OPR referred me to the bar disciplinary authorities for “possible misconduct.” Moreover, I was referred based on a secret report to which I did not have access. Finally, I was referred for conduct I engaged in as a private citizen, not as a public servant, after I had left the employ of the Justice Department.
To the extent that OPR holds itself out as an internal watchdog of the Justice Department, that is belied by the fact that David Margolis, a single senior career attorney who has been with the Department for more than 40 years, has the unilateral power to override anything OPR does. Like most career bureaucrats, he obviously has a vested institutional interest in legitimizing Department conduct. Margolis’s take-away message is that it’s okay to ignore the rules of professional conduct if you’re scared or in a hurry, failing to realize, perhaps because he’s a government attorney, that stress and deadlines are the status quo for most lawyers.
Although entirely predictable, the Justice Department’s decision to give Yoo and his cohorts a pass should offend all lawyers. It is now incumbent upon the legal profession, which is entirely self-regulated, to provide oversight and accountability within its own ranks and to the public.
The so-called “Justice” Department is clearly broken and in need of major reform. The first reform should be to abolish the OPR and submit all investigations of ethics violations to an independent Inspector General, as occurs in almost all other government agencies. The DoJ can no longer be allowed to investigate itself, placing the needs of institutional survival and comfort above the law and ethics. Unlike the OPR, the IG must have subpoena power to compel testimony from retired officials and obtain documents that are being deliberately withheld. IG decisions must not be allowed to be overruled by Department career hacks.
Additionally, Justice Department ethics rules need to be strengthened. Prosecutors and OLC lawyers who officially interpret the law should be held to higher standards regarding competent, independent, performance and loyalty to the law rather than administrations or the Department. Rules should makes sure that OLC lawyers can never again be protected by claims extreme partisanship excuses their incompetent legal interpretations. Prosecutors must be severely punished for withholding exculpatory evidence from defense attorneys.
As long as the Justice Department operates independent of any commitment to justice, no one is safe. When convenient, it will persecute the ethical and protect the guilty. Only the ethical have to fear in that case.
In a major development in the struggle to curb the abuses committed as part of the War on Terror, the British government today released under court order previously redacted information on the abuse of Binyan Mohamed by US interrogators. Here are the seven paragraphs that were released which summarizes intelligence information which both the British and US governments fought hard to suppress:
It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May 2002 as part of a new strategy designed by an expert interviewer.
v) It was reported that at some stage during that further interview process by the United States authorities, BM had been intentionally subjected to continuous sleep deprivation. The effects of the sleep deprivation were carefully observed.
vi) It was reported that combined with the sleep deprivation, threats and inducements were made to him. His fears of being removed from United States custody and “disappearing” were played upon.
vii) It was reported that the stress brought about by these deliberate tactics was increased by him being shackled in his interviews
viii) It was clear not only from the reports of the content of the interviews but also from the report that he was being kept under self-harm observation, that the interviews were having a marked effect upon him and causing him significant mental stress and suffering.
ix) We regret to have to conclude that the reports provide to the SyS [security services] made clear to anyone reading them that BM was being subjected to the treatment that we have described and the effect upon him of that intentional treatment.
x) The treatment reported, if had been administered on behalf of the United Kingdom, would clearly have been in breach of the undertakings given by the United Kingdom in 1972. Although it is not necessary for us to categorise the treatment reported, it could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities.
This case has aroused tremendous attention in Britain, as it clearly revealed British intelligence agents’, and the British Government’s, complicity in abuse of a British citizen. The British public, unlike much of the American, finds complicity in torture by its intelligence agents to be deeply disturbing.
The court decision ordering the release of this material is causing additional outrage because it violated hundreds of years of legal precedent in allowing only one side, the British government, to suggest changes in the decision. These changes were made without an opportunity of the defense to object. The letter to the court from the government lawyers requesting the changes was released, however. That letter gives a sense of what was excluded:
The master of the rolls’ observations ” will be read as statements by the court that the security service does not in fact operate a culture that respects human rights or abjures participation in coercive interrogation techniques.
Thus, the British government is afraid that the lies they perpetrated in the Binyan Mohamed case will disincline future courts from believing claims that the British government can be trusted when it asserts that they are opposed to torture or cruel, inhuman or degrading treatment. In other words, the court might correctly understand that the British government, like the US and many other governments, is a serial liar when it comes to abuses committed by its agents.
What may be less clear to US citizens is the potential enormous impact of the released information to the anti-torture struggle in the US. Marcy Wheeler [emptywheel] has pointed out the major significance of the apparent timing of Binyan Mohamed’s abuse. It is reported to have occurred before a visit by an MI5 officer on May 17, 2002. The significance of the date is that it is before the Justice Department Office of Legal Counsel memos providing a legal cover for torture were issued in august, 2002.Thus, Binyan Mohamed’s abuse, unlike later abuses, cannot be justified as being conducted in good faith under an authoritative legal opinion from the OLC.
Thus, this information just might provide an opportunity for prosecuting some of the torture perpetrators. And if the perpetrators are culpable, so may be those officials, however high they may be, who authorized the abuse.
Wheeler also points out that it is likely that the “expert interviewer” who designed the “new strategy” used on Binyan Mohamed was likely one of the CIA’s chief torture psychologists, James Mitchell or Bruce Jessen, or at least an associate of theirs. Thus, these architects of the CIA’s torture techniques may sweat a bit more after the release of these seven paragraphs.
The material released today also has several phrases that suggest that Binyan Mohamed was being experimented upon. As the material staes, tThe interrogations were “part of a new strategy designed by an expert interviewer.” And “The effects of the sleep deprivation were carefully observed.” Why were these effects being “carefully observed” unless to determine their effectiveness in order to see whether they should be inflicted used upon others? That is, the observations were designed to generate knowledge that could be generalized to other prisoners. The seeking of “generalizable knowledge” is the official definition of “research,” raising the question of whether the CIA conducted illegal research upon Binyan Mohamed.
Last summer Physicians for Human Rights suggested that materials in the then released CIA Inspector General’s report on the “enhanced interrogation” program suggested that the CIA had an systematic program of research. Such research is patently illegal and violates the rules that have governed human research since the Nuremberg Trials convicted German doctors for illegal research. This CIA research also violates rules of the US government regulating all research on people.
Similarly, bioethicist Steven Miles argued in an appendix to the second edition of his classic Oath Betrayed: America’s Torture Doctors that the detailed interrogation log of Mohammed al-Qahtan only made sense as the notes for a research protocol.
This new evidence on the torture of Binyan Mohamed adds to the considerable evidence that, as part of its torture program, the CIA also had a program to systematically study the effectiveness of torture techniques. Last summer, Physicians for Human Rights called for an independent investigation of this potential CIA research. The new evidence suggesting that Binyan Mohamed may have been an unwitting research subject only adds to the urgency of an investigation.
In addition to the usual human rights advocates, all those who conduct research on people — psychologists, sociologists, anthropologists, and biomedical researchers among others — should join the call for an investigation. For torture effectiveness research violates all the principles that guide our work, that our efforts should improve human welfare rather than degrade and destroy. We cannot allow the possibility that our society will remain one where inhumane research can be conducted with total impunity.
Dan Aalbers, one of members of the 2008 American Psychological Association referendum opposing psychologist participation in illegal detention sites has written the APA Council of Representatives protesting the association’s lack of action to implement the policy that was adopted by 59% of the APA members who voted:
Dear Member of the Council of Representatives,
It has been more than a year since the first referendum in our history
passed by a margin of 59 to 41. It has been nearly a year since the
council received a report on the implementation of the referendum, yet
very little has been to implement the referendum. Psychologists
remain at Guantanamo Bay — a camp whose name is synonymous with
torture. The membership voted to walk away from this torture center
but the will of the majority is not being enacted.
At a bare minimum, a letter should be sent to GITMO’s camp commander
that lays out the following instructions in no uncertain terms:
“Please inform all psychologists who are engaged in any activity other
than offering psychotherapy to fellow soldiers that they are in
violation of APA policy. These psychologists will remain in violation
of said policy unless they immediately seek to deploy elsewhere.”
If you believe that voting matters, if you believe that
representatives need to follow the clear instructions of their
constituents please contact me so we can work together to enact the
will of the membership.
Paul Krugman says the spending freeze is “appalling on every level.”
It’s bad economics, depressing demand when the economy is still suffering from mass unemployment. Jonathan Zasloff writes that Obama seems to have decided to fire Tim Geithner and replace him with “the rotting corpse of Andrew Mellon” (Mellon was Herbert Hoover’s Treasury Secretary, who according to Hoover told him to “liquidate the workers, liquidate the farmers, purge the rottenness”.)
It’s bad long-run fiscal policy, shifting attention away from the essential need to reform health care and focusing on small change instead.
And it’s a betrayal of everything Obama’s supporters thought they were working for. Just like that, Obama has embraced and validated the Republican world-view — and more specifically, he has embraced the policy ideas of the man he defeated in 2008. A correspondent writes, “I feel like an idiot for supporting this guy.”
Every year at this time I post a version of Christmas in the Trenches, that great song by John McCutcheon that suggests the possibility of peace in the midst of war. This year I post a brand new version by Gabriel Donohue:
I also post each year the following article I originally wrote in 2005 on the Christmas truce:
The 1914 Christmas Truce and the Possibility of Peace
A new French film, Joyeux Noel , brings the 1914 Christmas truce, that moment when a world of peace could be imagined, to a wider audience.
An article on the truce and the film from the Telegraph has this nugget:
Some viewers might find a certain sentimental excess in the scene in which a Scottish bagpiper spontaneously joins in when German soldiers began singing Stille Nacht (Silent Night). There are records of such an event. “All the acts of fraternisation had one thing in common: music and song,” says Carion. “I loved the idea that these could stop a war for a few hours.”
Perhaps we should learn something from this experience about the importance of music to peace. After all, the 60’s peace movements were infused with song, whereas today’s movements are silent. Music and song can unite, they can inspire, but they also can soothe. Movements for peace need all three.
The Telegraph article continues to point out that the reality of peace is beyond what audiences can believe:
The film also features a foraging ginger cat adopted as a mascot by both the French and the Germans. The cat existed, and, in real life, it was arrested by the French, convicted of espionage and shot in accordance with military regulations. “It was an era of madmen,” says Carion, who filmed this scene – to the great distress of his extras – but decided not to include it in case his audience didn’t believe it.
A Scottish bishop’s sermon, which includes references to a “crusade” and a “holy war”, seems like a thumpingly obvious effort to find parallels with more recent discourses about Iraq. In fact, these words were, Carion says, taken directly from a sermon preached by an Anglican bishop at Westminster Abbey. Here, too, the truth was toned down: Carion excised the real bishop’s references to German soldiers “crucifying babies on Christmas Day” in order to make it credible.
Perhaps the propensity toward war is aided by our unwillingness to imagine the depths to which people can sink when captured by the lure of war, the fantasy of perfect union with the state, that idealized perfect mother, and the ability to extrude all evil onto the enemy, that poisonous cannibalistic bad mother. As Christopher Hedges points out in War Is a Force that Gives Us Meaning, in more normal times we disown this desire for union and extrusion and cannot remember or imagine how destructive it can be.
Perhaps this dynamic also helps explain people’s passivity toward the threats to democracy facing us in the United States today. For those identified with their country, to truly accept the danger puts the evil, the bad, inside the union, where it is especially terrifying.
A resolution for many is the demonization solution, to view George W. Bush and his administration as absolute evil, destroying the country and the world. While tempting, and certainly not without evidence, the problem with this outlook is that it is the mirror image of that attitude which leads us into the nightmare. To those adopting this view, evil resides in Bush, in Cheney, in the Republicans. If only they could be removed, impeached, tried, the world would be saved. The problem with this notion is that it encourages only destruction of the enemy, not construction of something better. History has repeatedly demonstrated that movements guided by hatred do not end up producing a better world.
The Christmas truce, in its magnificence, gives us a tiny glimpse of a true alternative, a world in which we are all simply human, in which that which we have in common is greater than that which divides us. For the brief moment of that truce, lasting days or weeks, the soldiers on all sides embodied the wisdom of peace through union, a union without an all-bad enemy (though the officer class trying so hard to restore their respective killing machines surely could have qualified). A union of fun, of games, and of song. A world dominated by eros.
The challenge, so far unsolved, is how to take such a moment and make it last, or at least not turn into its opposite, a renewed carnage of destruction. This challenge, as pacifists and nonviolent activists have repeatedly discovered, requires us to find a way to accept and tame the capacity for destructiveness in each of us, so as not to need to attribute it to an enemy. At the same time, we need to find a way to continue peace and unity in more normal, less extraordinary times, beyond the moment of fusion. For eventually the excitement fades and we remember all our irritations, our gripes and our fears. To bring peace into daily life is the need upon which the future of the human race may well depend.
Large sectors of our country are inhumane. Today brings word of young Texans getting years in jail for graffiti. Yet torturers get protected by the Justice Department and the Supreme Court., What a country!
Irate judge won’t get to tag graffiti vandal with eight years
By Daniel Tencer
A Texas teenager who was sentenced to eight years in prison for graffiti and marijuana possession has had his sentence reduced under new state legal guidelines.
Corpus Christi Judge Marisela Saldana sentenced 18-year-old Sebastian Perez to eight years in prison last week for three counts of graffiti and one count of marijuana possession, giving Perez the maximum two-year sentence for each charge. Both crimes are felonies under Texas law.
But a new law that took effect in the state this fall means judges can no longer “stack” consecutive sentences in cases like Perez’s, and on Friday Perez had his sentence reduced to two years, according to KIII-TV in Corpus Christi.
Perez broke down in sobs last week when a visibly irate Judge Saldana scolded him for his six-month graffiti spree and handed down the eight-year sentence.
“My question to you, Sebastian Perez, [is] why do you pick on these other fine citizens of Corpus Christi, why don’t you knock yourself out spraying, tagging, marking on your girlfriend’s house, her mother’s house, your friend’s house, your mother’s house,” Saldana said at the original sentencing. “Knock yourself out.”
Deanna McQueen, the Corpus Christi police force’s graffiti enforcer, said the eight-year sentence was an appropriate deterrent to other taggers, and declared, “It was a good day … for the citizens of Corpus Christi.”
The Corpus Christi Caller-Timesreported that the damage to private property from Perez’s tagging amounted to $7,300. Blogger Will Sherman at Animal New York calculates that the cost to taxpayers of incarcerating Perez for eight years in Texas would have amounted to $140,000.
This is not the first case of taggers receiving lengthy sentences in Corpus Christi. Last summer, 19-year-old Ralph Mirabal was sentenced to three concurrent sentences of eight years for graffiti damage to some 30 properties. Mirabal had reneged on a plea deal to join the Army, and was given a lengthy sentence as a result.
A UN official claims that money from the illegal drug trade saved the banking system during the height of the economic crisis:
Drug money saved banks in global crisis, claims UN advisor
Drugs and crime chief says $352bn in criminal proceeds was effectively laundered by financial institutions
By Rajeev Syal
Drugs money worth billions of dollars kept the financial system afloat at the height of the global crisis, the United Nations’ drugs and crime tsar has told the Observer.
Antonio Maria Costa, head of the UN Office on Drugs and Crime, said he has seen evidence that the proceeds of organised crime were “the only liquid investment capital” available to some banks on the brink of collapse last year. He said that a majority of the $352bn (£216bn) of drugs profits was absorbed into the economic system as a result.
This will raise questions about crime’s influence on the economic system at times of crisis. It will also prompt further examination of the banking sector as world leaders, including Barack Obama and Gordon Brown, call for new International Monetary Fund regulations. Speaking from his office in Vienna, Costa said evidence that illegal money was being absorbed into the financial system was first drawn to his attention by intelligence agencies and prosecutors around 18 months ago. “In many instances, the money from drugs was the only liquid investment capital. In the second half of 2008, liquidity was the banking system’s main problem and hence liquid capital became an important factor,” he said.
Some of the evidence put before his office indicated that gang money was used to save some banks from collapse when lending seized up, he said.
“Inter-bank loans were funded by money that originated from the drugs trade and other illegal activities… There were signs that some banks were rescued that way.” Costa declined to identify countries or banks that may have received any drugs money, saying that would be inappropriate because his office is supposed to address the problem, not apportion blame. But he said the money is now a part of the official system and had been effectively laundered.
“That was the moment [last year] when the system was basically paralysed because of the unwillingness of banks to lend money to one another. The progressive liquidisation to the system and the progressive improvement by some banks of their share values [has meant that] the problem [of illegal money] has become much less serious than it was,” he said.
The IMF estimated that large US and European banks lost more than $1tn on toxic assets and from bad loans from January 2007 to September 2009 and more than 200 mortgage lenders went bankrupt. Many major institutions either failed, were acquired under duress, or were subject to government takeover.
Gangs are now believed to make most of their profits from the drugs trade and are estimated to be worth £352bn, the UN says. They have traditionally kept proceeds in cash or moved it offshore to hide it from the authorities. It is understood that evidence that drug money has flowed into banks came from officials in Britain, Switzerland, Italy and the US.
British bankers would want to see any evidence that Costa has to back his claims. A British Bankers’ Association spokesman said: “We have not been party to any regulatory dialogue that would support a theory of this kind. There was clearly a lack of liquidity in the system and to a large degree this was filled by the intervention of central banks.”