Torture Memos

How John Yoo and His Young Apprentice Tortured Health Care

Jason Leopold — Wed, 03 Mar 2010 19:41:52 -0600

Last Sunday, Nancy Pelosi vowed to wrangle up the votes needed to pass a health care bill even if it meant some Democratic lawmakers would be voted out of office in November's midterm elections.

"Why are we here? We're not here just to self-perpetuate our service in Congress. We're here to do the job for the American people," Pelosi said in an interview on ABC News' "This Week."

"The point is we have a responsibility here ... " Pelosi said later on CNN's "State of the Union," explaining the urgency in passing legislation.

If only Pelosi and other Democrats applied the same aggressive attitude toward holding Bush administration officials accountable for implementing a policy of torture against "war on terror detainees" after 9/11.

While it may seem like a stretch to talk about health care benefits and torture in the same breath, there is a direct link between the two issues. Indeed, it was a Medicare benefits statute and other health care provisions that were used to form the basis for one of two August 2002 torture memos.

A voluminous report released two weeks ago by the Justice Department's ethics watchdog, the Office of Professional Responsibility (OPR), revealed in great detail how, in early 2002 after discussing "enhanced interrogation techniques" during numerous meetings with CIA, the National Security Council, then White House Counsel Alberto Gonzales and former Vice President Dick Cheney's attorney, David Addington, Office of Legal Counsel (OLC) attorney John Yoo and a 28-year-old attorney named Jennifer Koester, who was just two years out of law school, started work on a legal memo that would redefine the federal torture statute's definition of severe pain.

Under 18 USC Section 2340, torture is "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control." Section 2340a makes it makes it a criminal offense for any person "outside the United States [to] commit or attempt to commit torture."

But Yoo wanted to know what Congress really meant by "severe." He looked up the definition of the word in a dictionary and included it in the draft memo he was working on, "suggesting that the degree of pain must be intense and difficult to endure," according to the final version of the OPR report.

Yoo also included in one of his early drafts a historical review of the anti-torture statute's legislative history, "the text and ratification and history of the [Convention Against Torture]," as well as two international torture cases and others where a torture law was applied "to support the conclusion that torture was extreme conduct that went beyond cruel, inhuman, or degrading treatment."

In comments Yoo made May 23, 2002, on one of the drafts of the torture memo, he "responded to the ... definition of 'severe' by asking REDACTED [likely Koester as her name appears unredacted in an earlier version of the OPR report] whether "'severe' is used in this way in other parts of the US Code?"

This is one of the results that popped up during a search:

"The term 'emergency medical condition' means a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent layperson, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in - (i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part."

That was taken directly from the Medicare+Choice Benefits and Beneficiary Protections statute . It ended up appearing in the final version of Yoo's legal memorandum. Koester found other uses of "severe pain" in health care statutes. Yoo concluded that what Congress meant by severe pain when it adopted the anti-torture statute was the type of pain that rose to the level of intensity equal to organ failure or death.

In another draft of the torture memo dated June 26, 2002, REDACTED [again, likely Koester] "cited several essentially identical health care benefits statutes, which listed symptoms that would lead a reasonable person to conclude that someone was suffering from an 'emergency medical condition,'" the report stated. "The term 'severe pain' was not defined in the health care statutes, but was listed as a possible indicator that a person was experiencing an emergency medical condition.

"That draft included the statement that these health care benefits statutes 'suggest that 'severe pain,' as used in [the torture statute] must rise to ... the level that indicates that death, organ failure, or serious impairment of body functions will reasonably result ... This proposition was summarized in the conclusion section of the [Yoo's] draft [torture memo] as follows:

"Severe pain is generally of the kind difficult for the victim to endure. Where the pain is physical, it is likely to be accompanied by serious physical injury, such as damage to one's organ's or broken bones."

But as the OPR report noted, the "benefits statutes do not define or even describe 'severe pain.'"

"They simply cite severe pain as one of an unspecified number of symptoms that would lead a prudent layperson to believe that serious health consequences are likely to result from a failure to provide immediate medical attention," the report said.

To support his interpretation of Congress's definition of severe pain, Yoo cited a 1991 Supreme Court case, West Virginia University Hospitals, Inc. v. Casey, and quoted a section of the opinion written by Justice Antonin Scalia discussing ambiguous statutory terms, which happened to be the only legal authority Yoo cited in his memo that justified the use of the medical benefits statute:

"[W]e construe a [statutory term] to contain that permissible meaning which fits most logically and comfortably into the body of both previously and subsequently enacted law."

But the OPR report noted that Yoo omitted an introductory phrase to the section of the High Court's opinion that said, "Where a statutory term presented to us for the first time is ambiguous, we construe ... "

Yoo "should have demonstrated that the term 'severe pain' was ambiguous before turning to other statutory sources," the OPR report said, adding that "borrowing from an unrelated statute ... is a relatively weak aid given that Congress may well have intended the same word to have a different meaning in different statutes."

This is just one of the many examples the OPR cited to demonstrate how Yoo and his boss Jay Bybee fixed the law around the Bush administration's torture policy.

The health care language Yoo twisted redefining severe pain was included, nearly verbatim, in one of the August 2002 torture memos that cleared the way for CIA interrogators to brutalize high-level detainees by subjecting them to nearly a dozen horrific torture techniques without fear of violating the anti-torture statute because, as the torture memo noted, they did not "specifically intend" to harm prisoners.

Nor would the approved methods, such as waterboarding, sleep deprivation and wall slamming, rise to an intense level of pain associated with "death, organ failure, or serious impairment of body functions" be considered torture, according to Yoo.

How and why the health benefits statute was used was one of the first questions OPR investigators raised during their four-year long probe of the legal work Yoo and former OLC attorney Bybee conducted for the Bush administration on torture.

Scott Horton, a constitutional lawyer and contributing editor to Harper's, who has written extensively on the Bush administration's torture policies, said in an email interview, "just about everyone I know who has examined the [torture] memo believes that Yoo's use of the medical triage provisions was absurd."

"Yoo also routinely criticizes the Congress for not writing 'clearly,'" Horton added. "But in fact it gave clear guidance - it just wasn't the guidance Yoo wanted, which is why he interprets their restrictions into oblivion."

When the "Standards of Conduct for Interrogation" was leaked in 2004, it contained a lengthy explanation as to why the health care statutes were relied upon to redefine the anti-torture statute's severe pain definition. The memo was prepared for Gonzales and Bybee is identified as the author.

"Although these statutes address a substantially different subject from section 2340, they are nonetheless helpful for understanding what constitutes severe physical pain," Yoo's memo, signed by Bybee, stated. "They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent, impairment of a significant body function. These statutes suggest that to constitute torture 'severe pain' must rise to a similarly high level - the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions."

The OPR report noted, "the medical benefits statutes in question do not associate severe pain with 'death,' 'organ failure,' or 'permanent damage.'"

"The language used by Congress was 'serious jeopardy,' 'serious impairment of bodily functions,' and 'serious dysfunction of any bodily organ or part," the report said.

OPR investigators questioned Yoo as to why he changed the statute's words. Yoo said that's not what he was trying to do. He was simply paraphrasing. But the words Yoo chose to paraphrase the medical benefits statute "heighten[ed] the severity of the listed consequences."

For example, the phrase "serious jeopardy" in the medical benefits statute became "death," "serious dysfunction of any bodily organ" was reinterpreted by Yoo as "organ failure," and "serious impairment of bodily functions" became "permanent damage."

The OPR said Yoo was asked to describe the "pain of death." "Well, I think I assume that's very painful, but I don't know," Yoo told the OPR.

Despite Yoo's denials that he wasn't rewriting the medical benefits statutes, the OPR concluded that the reason Yoo and Bybee changed the language was "to add further support to their 'aggressive' interpretation of the torture statute."

Yoo's use of these health benefits statutes to define severe pain was widely condemned inside the Justice Department and by outside legal scholars as "illogical or irrelevant," and ethics investigators concluded that the "reasoning underlying this legal conclusion" was also "illogical and unsupported by conventional legal analysis."

Daniel Levin, the OLC's former acting assistant attorney general, said the use of the medical benefits statutes to define severe pain "just didn't make sense." Jack Goldsmith, who took over as head of OLC after Bybee was appointed to the Ninth Circuit Court of Appeals, said, Yoo's "clumsily definitional arbitrage" of "severe pain" as contained in the health benefits statutes "didn't even seem in the ballpark."

The OPR said the "Standards" memo could be "interpreted as advising interrogators that they may legally inflict pain up to the point of organ failure, death, or serious physical injury." Yoo and Bybee vigorously defended the use of the medical benefits statutes in interviews with OPR investigators and lengthy responses to the report's findings.

Bybee said "no rational interrogator" could interpret the memo as "advising that he could 'legally inflict'" that amount of pain. Yoo said the advice contained in the memo he drafted was "written to guide a very small and quite sophisticated legal audience, not for any interrogators in the field."

But the OPR was unconvinced by Yoo's and Bybee's rationale.

"The fact that the medical benefits statutes were neither related, similar, nor analogous to the torture statute, coupled with the fact that they did not in fact define, explain or interpret the meaning of 'severe pain,' undermined their utility in interpreting the torture statute and led us to conclude that ... reliance on those statutes was unreasonable," the report said. "The occurrence of the phrase 'severe pain' in the medical benefits statutes provided little or no support for the conclusion that 'severe pain' in the torture statute must rise to the level of pain associated with 'death, organ failure, or serious impairment of body functions.'"

OPR concluded that the torture memos Yoo and Bybee prepared "did not represent independent professional judgment or candid legal advice," but were drafted to provide the Bush administration with the legal means to torture war on terror detainees. Moreover, Yoo and Bybee were well aware that the Bush administration wanted to pursue a policy of torture and "tailored their research" and "drafted memoranda to support that result."

The OPR said the misuse of the medical benefits statutes alone was a "professional misconduct" violation and, along with Yoo's and Bybee's other legal failings, warranted a referral to their states' bar associations where they could have faced disciplinary action that included the revocation of their law licenses.

However, David Margolis, a longtime Justice Department prosecutor who reviewed the final version of the OPR's report, changed the misconduct finding to that of "poor judgment," which means the agency will not make such a referral.

Yet, Margolis agreed with the final report's conclusions that the use of the medical benefits statute in Yoo's "Standards" memo was "confusing."

While Margolis declined to refer Yoo and Bybee to their states' bars, Congressman Jerrold Nadler (D-New York) sent letters February 26 to Paul J. Killion, the chief disciplinary counsel with the Disciplinary Board of the Supreme Court of Pennsylvania, asking that he "consider and determine whether, consistent with applicable laws, rules and procedures, further investigation or possible disciplinary proceedings are warranted in connection with" the legal advice Yoo provided to the Bush White House.

Nadler, who chairs a House Judiciary subcommittee, also sent an identical letter to Wallace E. Shipp Jr. at the Office of the Bar Counsel in Washington, DC, requesting an investigation of Bybee.

Though many legal scholars have doubted that state bar officials would conduct a further review of Yoo and Bybee's legal work, Horton said they will in fact "look very closely at what the OPR said because the OPR consists of ethics experts."

"It's unclear that they will really care that much about what David Margolis said or thought - although he was the final authority for the Justice Department, he is not, in fact, an expert of any sort on ethics matters - and most legal ethicists looking at his memo consider it to be something of an embarrassment," Horton said. Margolis' "memo will be examined and considered as a political judgment, I think."

"As for Nadler, he has done little more than refer the matter, which I don't think will of itself carry much weight," Horton added. "Still, if we look at other cases, the state bars have developed a clear pattern of not looking into cases involving DOJ lawyers unless and until they are referred. Then they make up their own minds."

..............................

Jason Leopold is editor in chief of The Public Record, www.pubrecord.org, and is the Deputy Managing Editor at Truthout, www.truthout.org. He is the author of the Los Angeles Times bestseller, News Junkie, a memoir. Visit www.newsjunkiebook.com for a preview.

Torture Accountablity Letter 7 - OPR Report

Bill Egnor — Mon, 22 Feb 2010 08:51:24 -0600

Happy Monday and welcome to the Dog’s letter writing campaign for torture accountability. Last week was not a good week for the cause. The release of the Office of Professional Responsibility report with the conclusion that Mr. Yoo and Judge Bybee showed only poor judgment in their ginning up of legal cover for torture is a travesty. The Associate Attorney General David Margolis overrode the two previous versions of the report which called for them to be referred to their local Bar Associations for professional misconduct. Instead they are very mildly admonished and let go their merry way.

Originally posted at Squarestate.net

There is still an avenue to pursue and that is House and Senate Judiciary Committee hearings. The Dog would love to tell you this was going to be a place where things will be different, but the reality is that it is likely to be a lot of smoke and very little fire. However giving up is not an option, at least for this dog. So lets take all the shots we can and keep this issue alive.

Today we will be writing to Judiciary Chair Conyers, below is this weeks letter:

Dear Representative Conyers;

I write you today in the hopes that you, in your role as Judiciary Committee Chairman will act to redress a grave injustice. You are aware of the release of the long awaited Office of Professional Responsibility report in the matter of the so-called Torture Memos.

The conclusion that this report comes to has widely been reported to be the work of Associate Attorney General Margolis. He overrode the conclusion of the report that Judge Bybee and Professor Yoo should be referred to their State Bar Associations for disciplinary action.

Under normal circumstances this might be an acceptable conclusion, if the matter they were being sanctioned for were not so serious. It has become clearer over time that Mr. Yoo and Judge Bybee actions were intended to facilitate the circumvention of Federal Law and International Treaties. There are only two conclusions for the actions of these men, either they are so incompetent as attorneys as to be unfit to be members of the Bar or they acted in a way that was premeditated to provide a particular outcome.

Chairman, that outcome was the torture of United States prisoners. Torture is anathema to civilized societies. It is so dangerous that it is kept in check only by absolute prohibition and strong punishment of any perpetrators. Recent history shows that once torture becomes accepted by a society it only ever grows in its use, until such a time as it is prosecuted and punished.

The actions of AAG Margolis have put this nation on a course where it is likely we will torture again. Without being able to put pressure on Mr. Yoo and Judge Bybee we are less likely to be able to find the scope of this infection and address it.

We will be treated to the sight of a former Vice President bragging about his support for what are war crimes that the United States has formerly prosecuted. This will not be the last time that this will happen, as the goal of the group who perpetrated these crimes to so normalize them as to make prosecution impossible.

You have it in your power to stop this course, Chairman Conyers. I did not favor the Congress starting full scale investigations as long as there was a chance that the Department of Justice would act in accordance with the law. It is now clear they will only act to cover up their own failings in this regard, and so it falls the Congress to provide oversight and clarity.

This will not be a popular course. The Republicans in Congress has a vested political interest in having the misdeeds of one of their presidents and Executive Branches not be tarnished by the second worst crime imaginable. They will make this out as political witch-hunt. However, Mr. Chairman, you should not reward a strategy that was part and parcel of the crime by inaction. The very fact of the political difficulty in prosecution is what allowed them to take these heinous actions. If you validate this tactic by inaction, as the DoJ seems to be intent on doing, then you all but grantee that this tactic will be used repeatedly by unscrupulous administrations in the future.

We are a crossroads Rep. Conyers; if we can not investigate and prosecute those in high office that conspire to and order the commission of torture, then where is the check on executive power? Is murder of prisoners up for consideration? It is the only crime higher than torture. If we do not draw line and re-assert accountability under the law then the future of our Republic is at stake.

These are strong words and I do not use them lightly. I do not see how a nation founded to of laws and not men can survive if those who achieve high political office can commit war crimes with impunity. It would as if after 234 years we have reestablished an aristocracy and have one set of laws for the lords and another for the commoners.

I beg you as a citizen who cares for and believes in our system of government not to participate in this wound to the to Republic by inaction or tepid action. Do no leave this mess to future generations to clean up.

Regards,

cc: President Barack Obama
Attorney General Holder
Speaker Pelosi
Majority Leader Reid
Judiciary Chair Leahy
Rep. Jerry Nadler

There is the letter, below are the links:
Rep John Conyers - Judiciary Committee Chair

The White House, Attention President Obama
AG Holder, can be reached at AskDOJ@usdoj.gov. Be sure to put Attention then his name in the subject line.
Speaker Nancy Pelosi
Majority Leader Harry Reid
Chairman Leahy
Representative Jerry Nadler
(to get past Rep. Nadler's filter use Zip Code 11224-4561 and the address of 445 Neptune Ave, Brooklyn, NY)

Please, if you have read this series, or are reading it today, don’t just shrug and turn away. If on no other Monday write and let your voice be heard for the rule of law.

The floor is yours.

The Conyers-Bybee Love Affair

davidswanson — Thu, 24 Sep 2009 12:28:35 -0500

By David Swanson

There is strong evidence that John Conyers, Patrick Leahy, and most of the rest of us are in love with torture-lawyer Jay Bybee. I'm not talking about sexual love and wouldn't, because people's lives are lost to such bread-and-circuses journalism every day. I'm talking deep personal devotion.

Let's examine the evidence.

1. As head of the Office of Legal Counsel, Jay Bybee committed felonies in exchange for being nominated to a life-time seat on the 9th Circuit Court of Appeals. Bybee violated the Anti-Torture Statute and the War Crimes Statute by facilitating torture through secret memos purporting to legalize specific criminal acts. Bybee also played a leading role in a conspiracy to violate the UN Charter, the US Constitution, and the War Powers Act by signing a secret memo purporting to give presidents the unrestricted power to launch aggressive wars.

2. The excuses that House Judiciary Committee Chairman Conyers used for not impeaching Bush or Cheney, outlandish and revolting as they may have been, do not apply to a judge who is not president and who is not known to most Americans. Yet Conyers, his committee, and the House of Representatives impeached a judge this year for groping people and have not attempted to impeach Bybee.

3. Senate Judiciary Committee Chairman Patrick Leahy has asked Bybee to testify, and Bybee has told the Chairman to go cheney himself. Conyers has not even asked Bybee to appear. Although any committee of Congress has the power to subpoena and to use the Capitol Police to enforce that subpoena, neither Leahy nor Conyers has subpoenaed Bybee.

4. While more than enough of Bybee's handiwork is publicly available in the form of his death memos, Conyers and Leahy have expressed their intention to do nothing until the Justice Department itself releases its own internal report on the crimes of Bybee and his colleagues. This has resulted in the Justice Department not releasing its report.

5. Conyers and Leahy are not being challenged in this matter by any members of Congress or any activist groups, the whole gang of them and us -- each in our own way -- deferring to the preference of President Barack Obama to grant all of the worst criminals immunity. But this dynamic won't stop people from placing the blame on Conyers. He knows that Obama is the messiah, whereas he is just the guy with the responsibility to impeach. Conyers wouldn't shred what's left of his oath of office and reputation just to please Obama. Conyers has publicly denounced Obama's actions on healthcare in the strongest terms.

6. The Department of Justice has proposed to cement in place the power of presidents to tell lawyers to secretly legalize crimes for particular criminals, by investigating for prosecution those who strayed from the illegal policies and granting immunity to those who created them.

7. The consequences of allowing the so-called executive branch to grant itself immunity for its crimes will effectively eliminate the first branch of government from our government, and Leahy and Conyers belong to that branch. The consequences of leaving Bybee in his current office include the possibility of his ruling on the legality of many of Bush and Cheney's crimes.

8. I've only heard two excuses leak out of Conyers' office. One of them is that the media would attack him for targeting a "conservative" judge if he tried to impeach a judge who tried to legalize aggressive war and torture. Exactly what is conservative about such actions has not been explained. How our republic can survive if Congress continues to take orders from Fox News I'm not sure.

9. The other excuse I've heard is that Bybee's not the worst of the lot, that John Yoo was a worse lawyer, that Bush and Cheney gave the orders. The problem with impeaching those people, however, is that they are out of office. You could and should still impeach them. Going into last year's election, Conyers promised to impeach Bush after it. Impeaching Bush and Cheney now would send a strong message, expose new information, lay the groundwork for prosecutions, and strip away secret service and pensions while banning them from every again holding public office. I'm all for it, and only focus elsewhere because 98 percent of Americans don't know it's possible. But if you're intent on avoiding impeachments of conservatives or non-sexual criminals, what about subpoenas? Subpoena the lot of them. Start with whoever you deem the most significant. Talking this way to Conyers is like talking to a wall. Why?

10. Many have suggested that Conyers is being blackmailed over scandals involving his wife and other things. But to allow threats to himself to dissuade him from the essential task of preserving the legislative branch of our government would require that he hate his country. I find it easier to imagine that he loves something or someone else.

Since the beginning of the year, already on record supporting Bybee's impeachment or resignation are: Congressman Jerrold Nadler, Senator Russ Feingold, the New York Times, the Center for Constitutional Rights, the Courage Campaign, Progressive Democrats of America, Bruce Fein, Common Cause, Democrats.com, People for the American Way, The World Can't Wait, ThinkProgress, Crooks and Liars, Digby, Scott Horton, After Downing Street, ImpeachBybee.org, Jeremy Scahill, Dave Lindorff, Congresswoman Jan Schakowsky, Senator Patrick Leahy, American Freedom Campaign, National Lawyers Guild, John Podesta, MoveOn, Veterans for Peace, National Accountability Network, Code Pink, Velvet Revolution, Bruce Ackerman, the Salt Lake Tribune, and too many others to name. But all have gone silent.

Efforts to impeach Bybee are headquartered at http://ImpeachBybee.org I'm convinced it’s a cause worth imposing on Congress, not just politely asking for. I'm convinced that the restoration of the power of impeachment as a check on the executive branch is much larger than Bybee, and that his impeachment hearings would result in the incarceration of the heads of his crime family: Cheney and Bush. I'm convinced that this is a cause worth pursuing, even if we have to break off a love affair.

David Swanson is the author of the new book "Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union" by Seven Stories Press. You can order it and find out when tour will be in your town: http://davidswanson.org/book

Comey Emails Illustrate Concerns Over Torture Policies

Jason Leopold — Mon, 08 Jun 2009 18:20:55 -0500

Dick Cheney and his lawyer, David Addington, pressured the Department of Justice (DOJ) in 2005 to quickly approve a torture memo that authorized CIA interrogators to use a combination of barbaric techniques during interrogations of "high-value" detainees, despite objections from senior DOJ officials, according to emails written by James Comey, the agency's former deputy attorney general.

In the emails, Comey also wrote that then Attorney General (AG) Alberto Gonzales was "weak" and had essentially allowed Cheney and Addington to politicize the DOJ. The emails can be found here: Documents: Justice Department Communication on Interrogation Opinions.

"The AG explained that he was under great pressure from the Vice President to complete both memos, and that the President had even raised it last week, apparently at the VP's request and the AG had promised they would be ready early this week," Comey wrote. Gonzales "added that the VP kept telling him 'we are getting killed on the Hill.'"

"It leaves me feeling sad for the Department and the AG ... I just hope that when this all comes out, this institution doesn't take the hit, but rather the hit is taken by those individuals who occupied positions at [Office of Legal Counsel] and [Office of the Attorney General] and were too weak to stand up for the principles that undergird the rest of this great institution."

The New York Times obtained the emails, which will likely be included in a Justice Department watchdog's report that will determine whether Office of Legal Counsel (OLC) attorneys violated professional standards when authorizing the Bush administration's interrogation program.

But the Times appears to have seriously mischaracterized the substance of some of Comey's emails in a story the newspaper published Saturday.

The Times reported that Comey "went along with a 2005 legal opinion asserting that the techniques used by the Central Intelligence Agency were lawful." But the issue is much more complex than that. Comey's 2005 emails tell a far more disturbing story about the way in which the Bush administration had politicized the Justice Department and pressured attorneys to come up with a legal rationale for torturing "war on terror" prisoners. Comey had gone so far as to say in one email that he would accept the blame for thwarting the White House's efforts to legalize torture.

The emails also clearly state that Comey had vehemently objected to torture on moral and ethical grounds and predicted that the matter would become the focus of a Congressional hearing "three years from now" if White House officials failed to heed his warnings.

Comey had previously butted heads with Cheney, Addington and Gonzales over the legality of the Bush administration's domestic surveillance program.

In March 2004, then Attorney General John Ashcroft was hospitalized with acute pancreatitis and it fell upon Comey to recertify the program. But Comey and his colleagues at the DOJ refused to do so because the program appeared to be illegal.

In testimony before the Senate Judiciary Committee two years ago, Comey said Bush, Dick Cheney and Gonzales, who was White House counsel at the time, tried to override his refusal to reauthorize the surveillance program by pressuring Ashcroft, who was hospitalized and barely conscious, to sign off on the program, which Ashcroft had refused to do.

So beginning on March 11, 2004, on orders from Bush, the National Security Agency illegally operated the surveillance program for about three weeks when administration officials could not obtain approval from the DOJ, leading to an internal revolt at the agency which nearly resulted in Comey and Ashcroft's resignation.

A year later, Comey found himself in a similar situation over the Bush administration's torture program.

In April 2005, several weeks before the OLC issued the first of three torture memos, Comey sent an email to his chief of staff, Chuck Rosenberg, stating that he had met privately with Gonzales after reading a draft version of a legal opinion that allowed CIA interrogators to employ a combination of torture techniques against detainees, such as waterboarding, prolonged stress positions and slamming detainees into walls.

"In our private meeting yesterday afternoon, I told [Gonzales] I was here to urge him not to allow the 'combined effects' memo to be finalized," Comey wrote on April 27, 2005. "I told him it would come back to haunt him and the Department. I told him the first opinion was ready to go out and I concurred. I told him I did not concur with the second and asked him to stop it."

Surprisingly, Gonzales said he agreed with Comey and instructed him to tell the OLC to finalize the first opinion, authorizing the CIA to torture, but not the second, the combination of techniques - that is until the OLC could come up with a way to make it work legally, according to Comey's email.

Gonzales said, "He would speak with [White House Counsel] Harriet Miers and share the concerns."

"He also directed me to call [acting general counsel of the CIA] John Rizzo and give him some comfort by saying the first [torture memo] would be done and that we would need to do additional work on the second," Comey added in his email to Rosenberg.

Another email, this one sent on April 28, 2005, appears to suggest Comey was told the torture memos needed to be drafted quickly to provide retroactive cover for torture that already occurred.

Gonzales's chief of staff Ted Ullyot "mentioned at one point that OLC didn't feel like it could accede to my request to make the opinion focused on one person because they don't give retrospective advice," Comey wrote to Rosenberg. "I said I understood that, but that the treatment of that person had been the subject of oral advice, which OLC would simply be confirming in writing, something they do quite often."

The identity of the detainee Comey had referred to is unknown.

Comey was not the only one concerned with the authorization to the CIA to use "combined effects" during interrogations. Patrick Philbin, the OLC's deputy assistant attorney general, also raised red flags.

"Pat alerted me to his serious concerns about the adequacy of the 'combined effects' analysis, particularly as it related to the category of 'severe physical suffering,'" Comey wrote in his email to Rosenberg on April 27, 2005.

But Gonzales, after sharing Comey's concerns with the Principals Committee, who included then Secretary of State Condoleezza Rice, Cheney, Addington, and others, told Comey they were not persuaded by his arguments. Cheney and Addington were pressuring him to have the memos authorizing torture and the combination of brutal methods finalized and signed immediately.

"I told [Gonzales] the people who were applying pressure now would not be there when the [shit] hit the fan," Comey wrote in an April 28, 2005 email. "It would be Alberto Gonzales in the bull's-eye. I told him it was my job to protect the department and the AG and that I could not agree to this because it was wrong. I told him it could be made right in a week, which was a blink of an eye, and that nobody would understand at a hearing three years from now why we didn't take that week."

Additionally, Comey said he told Gonzales that he should tell the White House that Comey "had gone on record against this" and that he was willing to bear the brunt of the blame for blocking efforts to get the DOJ to authorize the torture program.

"I told [Gonzales] I was leaving and was perfectly willing to catch that spear, as I had in other contexts," Comey wrote Rosenberg in the April 28, 2005 email.

Recounting the episode that unfolded a year earlier at Ashcroft's hospital bed, Comey told Rosenberg that he missed Ashcroft because, unlike Gonzales, Ashcroft had a "backbone."

"People may think it strange to hear me say I miss John Ashcroft, but as intimidated as he could be by the [White House], when it came to crunch time, he stood up, even from an intensive care hospital bed. That backbone is gone."

The opinion on combined techniques was approved on May 10, 2005. Another memo issued on that date discussed "whether CIA interrogation methods violate the cruel, inhuman and degrading treatment standard under federal and international law."

That second legal opinion concluded that past and present CIA interrogation methods did not constitute cruel, inhuman and degrading treatment. A third memo that provided a legal definition of torture in the context of "enhanced interrogations" was signed on May 30, 2005.

Steven Bradbury, who was the acting head of the Justice Department's Office of Legal Counsel during Bush's second term, signed the May 2005 memos that reversed efforts led by former Assistant Attorney General Jack Goldsmith in 2003 and 2004 to scrap earlier OLC memos asserting Bush's powers.

Senior Bush administration officials, including Addington and Cheney, were furious that Goldsmith, who was supported by Comey and Philbin, knocked down memos by previous OLC lawyers John Yoo and Jay Bybee.

In his book, "The Terror Presidency," Goldsmith recounted his collaboration with Comey in trying to restore some integrity to the legal advice under which the Bush administration had operated after the 9/11 attacks.

"Ever since Comey had come on board in December of 2003, he had been my most powerful ally in correcting the flawed interrogation opinions," Goldsmith wrote. "He always acted with a sensitivity to upholding the integrity of the Justice Department."

As Goldsmith struck down a key Yoo-Bybee opinion drafted in August 2002, he and Comey encountered angry resistance and even ridicule from Bush insiders, particularly David Addington, the legal adviser to Vice President Dick Cheney.

Goldsmith described one White House meeting at which Addington pulled out a 3-by-5-inch card listing the OLC opinions that Goldsmith had withdrawn.

"Since you've withdrawn so many legal opinions that the President and others have been relying on," Addington said with sarcasm in his voice, "we need you to go through all of OLC's opinions and let us know which ones you will stand by."

Yoo and Bybee had worked closely with the White House to create legal arguments for Bush to claim his commander in chief power essentially let him operate beyond the law, and Addington and Cheney found that person in Bradbury.

In the May 2005 memos, Bradbury reinstated key elements of the Yoo-Bybee memos, clearing the way for additional use of "enhanced interrogation techniques" against detainees and even expanded on some methods.

In another email, Comey wrote that Bradbury had clearly succumbed to pressure from Cheney and Addington because he wanted to be nominated for the job as head of the OLC.

"I have previously expressed my worry that having Steve as 'Acting' - and wanting the job - would make him susceptible to just this kind of pressure," Comey wrote in his email to Rosenberg.

In her book, "The Dark Side," author and New Yorker magazine reporter Jane Mayer recounted the episode Comey had described in his emails.

"In late spring of 2005, Comey went to the Attorney General and said in essence, "OK - I get it that you won't accept my interpretation of the law," Mayer wrote.

Comey then argued, "Just because you think you can do these things, it doesn't mean you should."

Mayer also added some insight into Bradbury's work on the May 2005 memos.

"The White House was so pleased with Bradbury's work that the day after he completed his opinion legalizing the cruelest treatment of US-held in history, President Bush sent his name forewarned to the FBI to begin work on a background check, so that Bradbury could be formally nominated to run the OLC. Evidently, the White House had received the 'work product' it wanted; Bradbury had passed his probation," Mayer wrote.

One day after Bradbury signed the last of three torture memos issued in May 2005, copies of which were declassified and released in April, Comey sent another email to Rosenberg summarizing his conversation with Gonzales.

"In stark terms I explained to him what this would look like some day and what it would mean for the president and the government," says Comey's May 31, 2005, email to Rosenberg.

In that same email, Comey said that he, Philbin and Bradbury met with Gonzales that morning to prepare him for his meeting with the Principals Committee, which was chaired by Rice.

Gonzales "began by saying that Dr. Rice was not interested in discussing details [of the list of torture techniques] and that her attitude was that if DOJ said it was legal and CIA said it was effective, then that ended it, without a need for detailed policy discussion.

"Pat [Philbin] and I urged [Gonzales] in the strongest possible terms to drive a full policy discussion of all techniques. I said I was not going to rehash my concerns about the legal opinion, but it was simply not acceptable for Principles [sic] to say that everything that may be 'legal' is also appropriate. In stark terms, I explained to him what this would look like some day and what it would look like for the President and the government ... I told him it would all come out some day and be presented in the way I was presenting it."

On August 15, 2005, in his farewell speech, Comey urged his colleagues to defend the integrity and honesty of the DOJ.

"I expect that you will appreciate and protect an amazing gift you have received as an employee of the Department of Justice," Comey said. "It is a gift you may not notice until the first time you stand up and identify yourself as an employee of the Department of Justice and say something - whether in a courtroom, a conference room or a cocktail part - and find that total strangers believe what you say next.

"That gift - the gift that makes possible so much of the good we accomplish - is a reservoir of trust and credibility, a reservoir built for us, and filled for us, by those who went before - most of whom we never knew. They were people who made sacrifices and kept promises to build that reservoir of trust.

"Our obligation - as the recipients of that great gift - is to protect that reservoir, to pass it to those who follow, those who may never know us, as full as we got it. The problem with reservoirs is that it takes tremendous time and effort to fill them, but one hole in a dam can drain them.

"The protection of that reservoir requires vigilance, an unerring commitment to truth, and a recognition that the actions of one may affect the priceless gift that benefits all. I have tried my absolute best - in matters big and small - to protect that reservoir and inspire others to protect it."

..............................

Jason Leopold is editor in chief of The Public Record, www.pubrecord.org.

George W. Bush Demands His Own Prosecution

Edger — Fri, 01 May 2009 16:56:25 -0500

After the news broke of torture and humiliation of prisoners at Abu Ghraib, George W. Bush set up interviews to make the case that it was just a "few bad apples".

Bush on an Arab television station after the Abu Ghraib situation went public, explaining the difference between a free nation with the rule of law and a dictatorship:

"It's important for people to understand that in a democracy, there will be a full investigation. In other words, we want to know the truth. In our country, when there's an allegation of abuse ... there will be a full investigation, and justice will be delivered. ... It's very important for people and your listeners to understand that in our country, when an issue is brought to our attention on this magnitude, we act. And we act in a way in which leaders are willing to discuss it with the media. ... In other words, people want to know the truth. That stands in contrast to dictatorships. A dictator wouldn't be answering questions about this. A dictator wouldn't be saying that the system will be investigated and the world will see the results of the investigation."

Raghida Dergham discusses President Bush's Interview on Al Arabiya with Keith Olbermann
Countdown MSNBC - 2005

Memo to President Obama on Torture

Edger — Fri, 01 May 2009 12:05:22 -0500

In their first attempt to inform President Obama on a major intelligence issue, a powerful group of twelve intelligence experts who oppose torture has written a memo to President Obama asking him to investigate and prosecute torture by the Bush Administration. Veteran Intelligence Professionals for Sanity (VIPS), consistently challenged pre-war lies and fabricated justifications for the invasion of Iraq, beginning with Colin Powell's speech to the U.N. in 2003. They were absolutely right - and were ignored by the media.

Now they are battling the widely-accepted lie that torture "works":

The fact that the exploits of Jack Bauer have injected a dangerous level of fiction and fear among impressionable viewers, and have misled not only interrogators at Guantanamo but also the chair of the House Intelligence Committee, Silvestre Reyes - not to mention Supreme Court Justice Antonin Scalia - leaves no doubt that such illusionary scenarios need to be addressed by professionals with real-life experience.

They insist from professional experience that:

torture tactics are not only ineffective in terms of getting reliable, actionable intelligence but have fueled recruitment by Al Qaeda and other terrorist groups to the point that, arguably, more U.S. troops have been killed by terrorists bent on revenge for torture than the 3,000 civilians killed on 9/11

As Bob Fertik at Democrats.com put it yesterday:

In effect, Bush's torture regime created a second "9/11" - only the victims were our soldiers.

The VIPS Memo to President Obama on Torture is reproduced in full below...

from Veteran Intelligence Professionals for Sanity
April 29, 2009

MEMORANDUM FOR: The President
FROM: Veteran Intelligence Professionals for Sanity
SUBJECT: Torture

This memorandum is VIPS’ first attempt to inform you on a major intelligence issue, as we did your predecessor; thus, some background might be helpful.

Five former CIA officers established Veteran Intelligence Professionals for Sanity (VIPS) in January 2003, when we saw our profession being corrupted to justify an attack on Iraq. Since then, our numbers have grown to 70 intelligence professionals, mostly retired, who have served in virtually all U.S. civilian and military intelligence agencies.

In our first Memorandum for the President (George W. Bush), dated February 5, 2002, we provided a same-day commentary on Colin Powell’s U.N. speech. We warned the president that “an invasion of Iraq would ensure overflowing recruitment centers for terrorists into the indefinite future [and that] far from eliminating the [terrorist] threat, it would enhance it exponentially.”

We strongly urged the former president to widen the discussion on Iraq “beyond the circle of those advisers clearly bent on a war for which we see no compelling reason and from which we believe the unintended consequences are likely to be catastrophic.”

VIPS’ second pre-war Memorandum for the President was titled, “Forgery, Hyperbole, Half-Truth: A Problem” — a reference to the bogus intelligence we saw being ginned up to “justify” war.

President Bush ignored our warning and those of other informed individuals and groups. The corporate media uncritically echoed the Bush administration’s misuse and misrepresentation of the intelligence, despite the questions raised — including those raised by our unique movement. (It was the first time an alumni group of intelligence officials had formed expressly to chronicle and to halt the corruption of intelligence.)

The cheerleading for war had begun — a war that would fit the post-WWII Nuremberg Tribunal’s description of a “war of aggression.” Nuremberg defined such a war as “the supreme international crime, differing from other war crimes only in that it contains the accumulated evil of the whole.”

Torture: An Accumulated Evil

Torture is one of those accumulated evils. Violating domestic laws like the Foreign Intelligence Surveillance Act of 1978 is another. You were right to unceremoniously jettison former CIA director Michael Hayden, who betrayed the thousands of NSA professionals who, until he directed that domestic law could be ignored, had adhered scrupulously to the 1978 FISA law as NSA’s “First Commandment” — Thou Shalt Not Eavesdrop on Americans Without a Court Warrant.

In contrast, we believe you were badly misguided in giving a prominent White House post to former CIA director George Tenet’s protégé John Brennan, who has publicly defended “extraordinary rendition” in full knowledge that its purpose was torture. Brennan also had complicit knowledge of the lengths to which Tenet conspired with the Department of Justice to distort history and the law in drafting opinions that attempted to “justify” torture.

With all due respect, Mr. President, it would be another mistake for you to believe what you are hearing from the likes of Brennan and Hayden and the journalists they have fed and domesticated. Please do not be deceived into thinking that most intelligence officials, past and present, condone torture — still less that they are angry that you have put a stop to such techniques.

We are referring, of course, to what President Bush called “an alternative set of procedures” involving cruel, inhuman, and degrading treatment that violates domestic and international law. We focus on torture in the VIPS statement that follows these introductory remarks.

The Senate Armed Services Committee recently concluded that it was President Bush himself who, by Executive Memorandum of February 2002 exempting al-Qaeda and the Taliban from Geneva protections, “opened the door” to the abuse that ensued. You need to know that the vast majority of intelligence professionals deplore “extraordinary rendition” and the other torture procedures that were subsequently ordered by senior Bush administration officials.

Sadly, President Bush was not the first chief executive to find a small cabal of superpatriots, amateur thugs, and contractors — to do his administration’s bidding. But never before in this country were lawless thugs given such free rein. The congressional “oversight” committees looked the other way.

Tenet and his acolytes successfully ingratiated themselves with President Bush, Vice President Dick Cheney, and the faux lawyers who devised what actually amounts to a very porous “legal” shield for those who carried out the torture. It was a shield designed for and applied exclusively to those “just following orders” at the CIA black sites, and not for the low-ranking soldiers doing similar things at Abu Ghraib.

Some of the latter have done time in prison; one is still there. It would appear that some are less equal than others. And, to this day, the organizers and apologists for torture have managed to escape the consequences of their actions

No doubt you appreciate better than anyone that the official Department of Justice memoranda you insisted be released last week are a national disgrace. Worse still are the first-hand accounts by young soldiers at Guantanamo of perversions like “rape by instrumentality.”

You should be aware that this was a practice adamantly defended by former White House lawyers when Congress attempted to draft legislation expressly prohibiting it. Asked to explain their objection, Bush administration lawyers acknowledged that they were worried that such legislation might subject practitioners to prosecution under state and federal criminal statutes.

* * *

Statement of Veteran Intelligence Professionals for Sanity on Torture

Interrogation Abuses and Those Responsible Must Be Fully Exposed

Inasmuch as we have gone on record as strongly opposed to torture, both on moral and practical grounds, from the first public awareness that the Bush administration had decided to violate international and domestic law, treaty provisions, and American tradition;

As former intelligence officials we understand that unless intelligence is “actionable” — accurate, specific, and timely enough to be acted upon with some confidence — it is ineffective.

Equally important, we acknowledge our responsibility to expose fallacious reasoning regarding the utility of torture in acquiring actionable intelligence. This issue comes to the fore especially in the celebrated, but specious “ticking time bomb hypothetical” — a regular feature of Jack Bauer TV fiction.

The fact that the exploits of Jack Bauer have injected a dangerous level of fiction and fear among impressionable viewers, and have misled not only interrogators at Guantanamo but also the chair of the House Intelligence Committee, Silvestre Reyes — not to mention Supreme Court Justice Antonin Scalia — leaves no doubt that such illusionary scenarios need to be addressed by professionals with real-life experience.

Inasmuch as the recently released legal memos that comprised part of the “golden shield” constructed by Bush Administration lawyers do shed some light but also provide inadequate information on “harsh interrogation tactics,” and that the memos sow confusion regarding which officials were responsible for institutionalizing those methods — not to mention whether they were actually effective, as former vice president Cheney continues to insist;

Inasmuch as it has come to light that two detainees were waterboarded at least 266 times, throwing strong doubt on various rationalizations regarding the effectiveness of waterboarding in providing timely actionable intelligence (in a “ticking time-bomb” scenario, for example);

Whereas CIA Director Leon Panetta has insisted that the “harsh interrogation tactics that some officials have declared to be torture” (the circumlocution now in vogue in the corporate media) might again be used in a future “ticking time-bomb hypothetical;”

Whereas, when the torture technique of waterboarding, a practice with antecedents in the Spanish Inquisition was applied by Japanese troops in WWII to American and British prisoners — Japanese officers were later tried and executed;

Whereas there has been no better system devised — despite some shortcomings — to ascertain the truth of potential wrongdoing than the criminal investigative and judicial adversary process, which provides the right to attorney and right to jury and is governed by judicial rules which attempt to ensure fairness;

Whereas we recognize that the criminal justice process serves the important goal of stopping and deterring criminal actions and cannot be dismissed as merely “retribution;”

Whereas 92 videotapes showing application and results of the “harsh interrogation tactics that some officials have declared to be torture” have already been destroyed, and there is understandable concern that other evidence is being destroyed as the days go by;

Whereas other civilian and military intelligence professionals have also gone on record (see attached Annex) with respect to how torture tactics are not only ineffective in terms of getting reliable, actionable intelligence but have fueled recruitment by Al Qaeda and other terrorist groups to the point that, arguably, more U.S. troops have been killed by terrorists bent on revenge for torture than the 3,000 civilians killed on 9/11;

Whereas the false confessions that were elicited by the torture of Ibn al-Shaykh al-Libi, for example, were used by the president, vice president, and the secretary of state (at the U.N.) to claim that proof existed of operational ties between Saddam Hussein and al-Qaeda, and whereas such false confessions also diverted limited investigative resources to pursue bogus leads;

We of VIPS call for a full, truthful, and public fact-finding process to begin without delay. We ask that you give careful consideration to Senator Carl Levin’s suggestion that the attorney general appoint retired judges with solid reputations for integrity to begin the process.

Another viable possibility would be the appointment of an independent “blue-ribbon commission,” perhaps modeled on the Church Committee of the mid-Seventies, to assess any illegal or improper activities and make recommendations for reform in government operations against terrorism.

We commend the administration for releasing the Department of Justice memos attempting to legalize torture. We believe the remaining relevant information must be released promptly so that the citizenry can make informed judgments about what was done in our name and, if warranted, an independent prosecutor can be appointed without unnecessary delay.

We believe strongly that any judgments regarding amnesty, forgiveness, or pardon can only be made on the basis of a fully developed, public record — and not used as some sort of political bargaining chip. Finally, we firmly oppose the notion that anyone can arrogate a right to ignore the Nuremburg Tribunal’s rejection of “only-following-orders” as an acceptable defense.

(signatories are listed alphabetically with former intelligence affiliations)

Gene Betit, US Army, DIA, Arlington, VA

Ray Close, National Clandestine Service (CIA), Princeton, NJ

Phil Giraldi, National Clandestine Service (CIA), Purcellville, VA

Larry Johnson, CIA & Department of State, Bethesda, MD

Pat Lang, US Army (Special Forces), DIA, Alexandria, VA

David MacMichael, National Intelligence Council, Linden, VA

Tom Maertens, Department of State, Mankato, MN

Ray McGovern, US Army, CIA, Arlington, VA

Sam Provance, US Army (Abu Ghraib), Greenville, SC

Coleen Rowley, FBI, Apple Valley, MN

Greg Theilmann, Department of State & Senate Intel. Committee staff, Arlington, VA

Ann Wright, US Army, Department of State, Honolulu, HI

==========================================

Annex

We list below other experienced intelligence personnel, who have spoken out publicly about the inefficacy and counter productiveness of torture:

FBI: Ali Soufan, Dan Coleman, Jack Cloonan

CIA: John Helgerson (former Inspector General), Bob Baer, Haviland Smith

Military: Navy General Counsel Alberto J. Mora; Major General Antonio Taguba (who probed Abu Ghraib and concluded that Bush officials committed war crimes: http://www.mcclatchydc.com/251/story/41514.html); Air Force Col Steven M. Kleinman; Rear Admiral (ret) and former Judge Advocate General for the Navy John Hutson; former Naval Intelligence officer and Assistant Secretary of Defense during the Reagan Administration Lawrence Korb; former U.S. military interrogator (pseudonym) Matthew Alexander; and former military intelligence officer Malcolm Nance,

Links

FBI

Ali Soufan Op-Ed Contributor; My Tortured Decision; Reclaiming America’s Soul - NYTimes.com Apr 23, 2009

Soufan was an F.B.I. supervisory special agent from 1997 to 2005.

Dan Coleman; The Torture Memos Are Not Just Sick, They're Full of Lies:

Coleman was with the FBI; says “I can give you two reasons why Cheney wants more torture memos…”

Jack Cloonan: How to Break a Terrorist

Foreign Policy: FPTV

Cloonan is a veteran FBI interrogator who spent 25 years as an FBI special agent and interrogated members of al Qaeda

CIA

CIA IG John Helgerson: CIA official: no proof harsh techniques stopped terror attacks Washington — The CIA inspector general in 2004 found that there was no conclusive proof that waterboarding or other harsh interrogation techniques helped ...

Ray Close (VIPS) and Haviland Smith, both are retired CIA Station Chiefs who served in various senior positions in the Operations Directorate, including in Europe, the Middle East and (Smith) as Chief of the Counterterrorism Staff.

Two former top CIA officials on the efficacy of torture, by Stephen Soldz

Military

Former Navy General Counsel Alberto J. Mora: Abu Ghraib and Guantanamo are ‘first and second identifiable causes of U.S. combat deaths in Iraq.’

Air Force Col Steven Kleinman, senior intelligence officer: Senate Testimony

Malcolm Nance: Why the Bush torture architects must be prosecuted

Nance is a former military intelligence officer and the Founding Director of the International Counterterrorism Center for Excellence at Hudson N.Y. and author of "The Terrorist Recognition Handbook - A Practitioner's Manual for Predicting and Identifying Terrorist Activity."

Former U.S. Interrogator Matthew Alexander (pseudonym) author of Torture Policy Has Led to More Deaths than 9/11 Attacks and “I'm Still Tortured by What I Saw in Iraq”

Senator Robert Byrd Demands Torture Investigations

Edger — Thu, 30 Apr 2009 18:34:11 -0500

Sen. Robert Byrd, the longest-serving Senator in history, today demanded an investigation of torture by the Bush Administration:

The recently leaked report from the International Committee of the Red Cross (ICRC), as well as the four released memorandums from the Department of Justice Office of Legal Counsel (OLC), confirm our worst fears. These documents point to brutal, inhumane acts which were repeatedly carried out by U.S. military personnel, and which were authorized and condoned at the highest levels of the Bush Administration. These acts appear to directly violate both the U.N. Convention Against Torture and the Geneva Conventions. Spain and the United Kingdom have already initiated investigations of Bush Administration officials who approved these acts. The United States needs to investigate as well. To continue to ignore the mounting evidence of clear wrongdoing is a national humiliation.

Byrd is the President pro tempore of the Senate, which puts him third in the line of Presidential succession behind Vice President Biden and Speaker Pelosi.

Byrd's new blog did not specify the form of the investigation, but insisted on "consequences" for those who "condoned and approved" torture.

Whether it is through an independent investigation, a "Truth Commission," a Congressional investigation, or a criminal investigation by the Department of Justice, action must be taken. As long as those who condoned and approved these despicable acts are permitted to escape the consequences, we allow our moral standing in the world to be severely compromised. September 11 did not suddenly legalize torture, nor did it exonerate those who authorized such a heinous deviation from the rule of law. How we address these abuses will shape the image of the United States for decades. In order to truly clear our good name and put the past behind us, the United States must strive to be sure that this dark period of sick and secretive torture schemes receives the scrutiny it deserves.

Byrd joins Senator Carl Levin and 16 Democrats on the House Judiciary Committee in calling for a criminal investigation into torture. Last week, President Obama said Attorney General Eric Holder would decide on prosecutions. When Holder testified before Congress, Democrats.com, ACLU, Moveon, and FireDogLake delivered over 250,000 petitions for a Special Prosecutor to Holder's assistant. Holder promised David Swanson, "you will be proud of your country."

Hat tip to Bob Fertik @ Democrats.com

Torture Arrest Warrants Issued? Michael Ratner: Obama Must Now Prosecute Or Pardon.

Edger — Thu, 30 Apr 2009 12:57:02 -0500

Spanish Judge Baltasar Garzon is recognized worldwide for his determination to bring suspects to justice, wherever they seek refuge or how old the crime.

A 2005 BBC profile of Garzon notes that:

He came to prominence in the late 1990s, when he campaigned for the extradition former Chilean military ruler Augusto Pinochet, from London to Spain for human rights abuses.

In late 2003 Judge Garzon compiled a 692-page indictment which called for the arrest of 35 men, including Osama Bin Laden, for their alleged membership of a terrorist group. The number of suspects was later increased to 41.
...
Mr Garzon is one of six investigating judges for Spain's National Court which, like many other European countries, operates an inquisitorial system, as opposed to the adversarial system used by the US and UK.

The investigating judge's role is to examine the cases assigned to him by the court, gathering evidence and evaluating whether the case should be brought to trial. He does not try the cases himself.

Today, April 30, 2009, Garzon opened a Spanish investigation into torture allegations against US military personnel at the Guantánamo detention centre:

Meanwhile in Berlin, Barack Obama's attorney general Eric Holder said that about 30 Guantánamo detainees have been cleared for release and urged European allies to take some of them. Holder also signalled the Obama administration might cooperate with the Spanish investigation.

A recent decision by the Obama administration to release documents about Guantánamo helped the judge conclude that a police investigation, which could lead to criminal charges, was necessary.
...
"Mistakes were made" in the creation of the Guantánamo programme, Holder said. "Obviously, we would look at any request that would come from a court in any country and see how and whether we should comply with it."

"This is an administration that is determined to conduct itself by the rule of law and to the extent that we receive lawful requests from an appropriately created court, we would obviously respond to it," he said.
...
Judge Garzón reportedly cited "documents declassified by the US administration" as giving evidence "of what previously could be intuited: an official plan of approved torture and abuse of people being held in custody while facing no charges and without the most basic rights of people who have been detained."

He said he would now formally request copies of the documents from the United States.
...
Garzón has previously used international human rights laws to bring torturers from the Argentinian military dictatorships to trial in Madrid, with military officers from Argentina being found guilty and sent to Spanish jails.

Following close on the heels of Judge Garzon's announcement today, Michael Ratner, President of the Center for Constitutional Rights (CCR) in New York, talks today with Real News Network CEO Paul Jay, notes that if Obama won't prosecute Spain will, speculates that arrest warrants may have already been issued across Europe for the targets of Garzon's investigation, and concludes that Obama is now left with two choices: either prosecute or pardon:

Real News Network - April 30, 2009
If Obama won't prosecute, Spain will
Michael Ratner: Obama has a duty to prosecute while a Spanish judge moves ahead on his own

Torture: You Can Not Ignore Justice, Attorney General Holder

Thadius K Lindahl — Wed, 29 Apr 2009 14:33:44 -0500

I don't know the procedure, and of course the procedures certainly haven't been followed in this era that is...we hope... beginning to end.

But the head of the House Judiciary Committee and the Chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties have now asked the Head of the Department of Justice to appoint a Special Prosecutor to investigate.

And that should be good enough, now that...well, if, indeed... the Rule of Law has now been restored.

If the Rule of Law is once again operating, the Chairman of House Judiciary Committee asking the Attorney General to appoint a Special Prosecutor should be good enough.

[April 28], Congressman Jerrold Nadler (NY-08), Chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, Congressman John Conyers (MI-14), Chair of the House Judiciary Committee, and their Judiciary colleagues wrote to Attorney General Eric Holder requesting the appointment of a Special Counsel to investigate and, where appropriate, prosecute torture committed against detainees during the Bush administration. Similar letters were also sent to previous Attorneys General Gonzalez and Mukasey.

“This letter makes official our views on the necessary procedure in investigating those U.S. officials who allowed or actively instructed others to commit torture,” said Rep. Nadler. “Because the United States is bound by its own laws and by international treaty, we are obligated to investigate and, where necessary, to prosecute those who have violated the laws against committing torture – whether by ordering it or committing it directly. We have no choice if we are to remain a just and principled nation of laws.

“A Special Counsel is the most appropriate way to handle this matter. It would remove from the process any question that the investigation was subject to political pressure, and it would preempt any perceptions of conflict of interest within the Justice Department, which produced the torture memos. President Obama has honorably shown his commitment to the rule of law and placed this process into the hands of his able Attorney General, where it belongs. I look forward to working with Attorney General Holder on this, and with Chairman Conyers as the Judiciary Committee continues its oversight investigations.”

Dear Mr. Attorney General:

We write to request that you appoint a special counsel for the investigation and possible prosecution of any violations of federal criminal laws related to the interrogation of detainees in the effective custody or control of the United States in connection with counter-terrorism operations or armed conflicts in the aftermath of the September 11, 2001 terrorist attacks on the United States. Many of us previously asked your predecessor, Attorney General Mukasey, to do so, expressing our desire to ensure an independent investigation into serious allegations that high-ranking officials, including lawyers and others from the Department of Justice itself, approved the use of enhanced interrogation techniques that amounted to torture.

Recent events highlight the need for such an appointment. The OLC memos formally released last week provide additional details regarding the purported legal justifications provided by DOJ lawyers for various interrogation techniques, including the slamming of detainees into walls, the use of stress positions, confinement in boxes, sleep deprivation, and waterboarding. The Senate Armed Services Inquiry into the Treatment of Detainees in U.S. Custody, declassified and released on April 21, confirms that these interrogation practices were developed at the request of and authorized by high-ranking administration officials, and that the abuse of detainees at Abu Ghraib and elsewhere can be linked to these policy decisions.1 Top Bush Administration officials previously testified that at least three detainees were subjected to waterboarding,2 and the recently released OLC memos reveal that one detainee was subjected to waterboarding 183 times in a one month period while another was subjected to waterboarding 83 times in one month.3

During your confirmation hearings, you testified that waterboarding is torture, and the International Committee of the Red Cross, which had been denied access to detainees held at CIA secret prisons for several years, has concluded that the treatment alleged by fourteen of these detainees constituted torture.4 Earlier this year, the Bush Administration’s top official in charge of military commissions concluded that the U.S. military’s treatment of Mohammed al-Qahtani “met the legal definition of torture.”5

As you are aware, Justice Department regulations provide for the Attorney General to appoint an outside special counsel when: 1) a “criminal investigation of a person or matter is warranted,” (2) the “investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department,” and 3) “it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.”6 Such counsel is to be appointed from outside the government and should have the authority to secure resources for the investigation and prosecution and have full investigatory and prosecutorial powers.7

We believe that these three criteria have been met and warrant the appointment of a special counsel to investigate whether federal criminal laws were violated by individuals who authorized or participated in the interrogation of detainees. First, as noted above, there is abundant, credible evidence of torture and the cruel, inhuman, and degrading treatment of detainees, and criminal investigation is not only warranted, it is also required. The Geneva Conventions obligate High Contracting Parties like the United States to investigate and bring before our courts those individuals “alleged to have committed, or to have ordered to be committed” grave breaches of those Conventions.8 The war crimes act, 18 U.S.C. § 2441, creates jurisdiction in the U.S. courts whenever the victim or alleged offender is a U.S. national or member of the Armed Forces, and specifically identifies torture and cruel or inhuman treatment, as well as the conspiracy to commit those acts, as punishable war crimes. The Convention Against Torture (CAT) – signed by President Reagan in 1988 and ratified by the U.S. Senate in 1994 – also obligates the U.S. to conduct a “prompt and impartial investigation” and “submit the case to [our] competent authorities for the purpose of prosecution” whenever there are reasonable grounds to believe that torture has been committed in a territory under our jurisdiction or by U.S. nationals.9 The federal anti-torture statute, 18 USC § 2340A, criminalizes torture and the conspiracy to commit torture and creates jurisdiction in the U.S. courts whenever the “alleged offender is a national of the United States” or “is present in the United States.”

Second, a conflict of interest would be presented in having the Department investigate allegations that high-ranking Justice Department officials and lawyers provided legal guidance on and may have been involved in developing interrogation policy. For example, the Department of Justice’s Office of Legal Counsel and former Attorney General and White House Counsel Alberto Gonzales advised the Administration and President to deny detainees the legal protection of the Geneva Conventions, and OLC lawyers wrote extensive legal memos that authorized specific interrogation techniques that likely amounted to torture. While some key individuals are no longer with the Department or Executive Branch, it is impossible to determine at this stage and before conclusion of the necessary investigation whether additional conflicts of interest might exist or arise. When Department lawyers are alleged to have been involved, we believe the Attorney General should turn to a special counsel.

Finally, there can be little doubt that the public interest will be served by appointment of a special counsel. The authorization and use of interrogation techniques that likely amounted to torture has generated tremendous concern and outrage in this country, and has harmed our legal and moral standing in the world. As a country committed to the rule of law, we must investigate and demand accountability for acts of torture committed by or on our behalf. Appointing a special counsel to undertake this task would serve the interests of the Department and of the public in ensuring that the necessary investigation is thorough and impartial, and that the United States fairly investigates serious and credible accusations of misconduct, even where high-ranking government officials may be involved.
We applaud President Obama’s efforts to assure America and the rest of the world that this Department’s investigative and prosecutorial decisions will be free from political considerations. We are confident that you and the President will uphold this critical guarantee, and will restore the Department’s independence and integrity. Yet, as you undoubtedly are aware, Americans on both sides of the political aisle worry that this issue already is mired in politics, with those who oppose investigation characterizing that possibility as a political witch hunt and those who, like us, support accountability expressing concern that the rule of law must be upheld. Given these factors, any decisions that you make regarding prosecutions will be perceived by some as political. Appointment of a special counsel insulates you and the Department from such claims, and instills confidence that the outcome of the investigation could not possibly have been predetermined or otherwise improperly influenced.

The special counsel rules provide for both accountability and transparency. An appointed special counsel would be subject to Department ethics rules and to oversight by you to prevent undue expansion of the investigation. The special counsel would report to you about any decision to prosecute or not to prosecute; you could provide that report to Congress and the public, and would have to report to Congress if the special counsel is fired or the investigation halted. Appointing a special counsel balances the need, recognized after Watergate, to ensure independent investigation of high-ranking officials with the need to avoid prosecutors with unchecked power.

Given the importance of this issue, we look forward to a response to our request at your earliest convenience.

If our government still works....

That should be good enough.

If not, if the Attorney General turns down the request of the House Judiciary Committee, ignores the Senate report from tthe Armed Services Committee, ignores the report by the Internayional Committee of the Red Cross, (The agency tasked with leveling charges of torture) ignores the press reports, ignores the public outcry, ignores the poll showing that over half of America wants investigations into torture, ignores the poll showing that 71% of Americans think waterboarding is torture, ignores the petitions of over a quarter of a million citizens....

And ignores that not just have the American people have soundly rejected the now crippled Republican Party's rhetoric and principles, but that one of their own Senators just rejected them as well. So he is also ignoring that the political concerns of a dwindling and rejected political party, a party that is being rejected in part BECAUSE of these policies, is not a valid reason to ignore justice.

Politics never is.

But as Thomas Friedman points out in today's NYT, this is not a case of torture alone...

After all, we’re not just talking about “enhanced interrogations.” Lawrence Wilkerson, the former chief of staff to Secretary of State Colin Powell, has testified to Congress that more than 100 detainees died in U.S. custody in Iraq and Afghanistan, with up to 27 of those declared homicides by the military. They were allegedly kicked to death, shot, suffocated or drowned. Look, our people killed detainees, and only a handful of those deaths have resulted in any punishment of U.S. officials.

If after all of that... the Attorney General does not appoint a Special Counsel...

We are in deep, deep trouble.

And he had better have a damn good reason to not do so. And he had better make it VERY clear what that reason is.

Or not only is he ignoring the will of the American people to have him merely investigate these alleged crimes, he is indeed ignoring justice, and the law as well.

And that is no way to run a Department of Justice.

Start the process Attorney General Holder. Appoint a Special Prosecutor now.

As the head of the House Judiciary Committee just stated...

"Given the importance of this issue, we look forward to a response to our request at your earliest convenience."

Justifying Torture: Scott Horton & Bruce Ackerman On Jay Bybee & His Torture Memos

Edger — Tue, 28 Apr 2009 15:25:43 -0500

Not a single Democrat questioned Bybee at the session, and the proceedings came to a quick conclusion. The following month he was confirmed by the full Senate. Just six months prior to the hearing, Jay Bybee had signed legal memos providing cover for CIA agents torturing detainees -- yet Congress voted him to a lifetime on the federal bench. How did this happen? And what will become of Judge Bybee now?

American News Project via Real News Network - The Jay Bybee Problem
How did Jay Bybee breeze through confirmation for his appointment to the Federal Appeals Court?
Transcripts below...

The Problem of Jay Bybee
By David Murdock

SCOTT HORTON, ATTORNEY, HARPER'S MAGAZINE CONTRIBUTING EDITOR: When I got those memoranda on April 16, I immediately went to that August 2002 Bybee memorandum, read it. And at the end I remember seeing his signature there and thinking, how could someone who wrote this now be sitting as a federal judge? It's just astonishing. Jay Bybee held a number of posts in the Bush administration. He comes from a background in Republican politics, and also as a legal academic—he was on the faculty of the University of Nevada at Las Vegas. But he had worked in Washington for a considerable period of time, and his last stop before he went on the bench was as assistant attorney general in charge of the Office of Legal Counsel, which is essentially that part of the Department of Justice that writes the attorney general's opinions. While he was heading the Office of Legal Counsel, it began to systematically undermine the role of the laws of war—the Geneva Convention, the Hague Convention, and so forth—and also international human rights protection, especially the Convention against Torture. It was within the six weeks after the disclosures of Abu Ghraib. Then a number of publications got their hands on would have [come] to be known as the "torture memoranda." And the first of these, from August 2002, was a memorandum from Jay Bybee to Alberto Gonzalez. When these memos first came out, the defense was immediately that, well, this is just lawyers giving abstract legal advice, no more than that. These lawyers certainly weren't involved in any intimate way in the process of crafting these techniques for interrogation.

BRUCE ACKERMAN, STERLING PROF. OF LAW AND POLITICAL SCIENCE, YALE UNIV: At that time, I wasn't really as clear as I am today—or we are since last week, really—as to how serious these memos and how detailed and how particular they were and how much he actually understood. You see, the first memo was full of legal abstractions, but this new memo is full of particulars about how much waterboarding you can do within a day and this kind of thing (only two two-hour sessions and the like) and how precisely you can take a person and bang his head against the wall. Well, this puts a new cast on this.

HORTON: How can you have law issued by the president that's secret? Here it's very clear why it's been kept secret. The instant the legal rationale is exposed to the sunlight, it would immediately be ridiculed; it wouldn't be able to hold its head up in any sort of legal discourse with legal authorities, as in fact happened with these memoranda. They were eviscerated by the bar and by legal experts instantly when they became public. Even within the Bush administration, they were rescinded on the basis of recognition that they were completely untenable in terms of legal rationale and analysis. They were advancing positions that are completely ridiculous. There are a large array of precedents discussing these techniques, none of which are presented and talked about in the memorandum. So, you know, we have a sort of reverse-engineered memo that has decisions that the administration wants, and then it just cobbled together some sort of completely ridiculous analysis in order to justify those decisions. So that makes them, really, the ultimate crafters of the torture system.

ACKERMAN: Without his authorization, the members of the CIA may well not have done it at all, or if they had, they would be, plainly, subject to criminal responsibility today. So these memos are at the absolute center of the torture activities of the United States government. This is not a minor matter. This is the foundation of our activities. Without these memos, the entire exercise of torture probably would not have taken place.

HORTON: Well, if we go back and check this against the timeline, you see that these memoranda, you know, issued at the beginning of August, prepared perhaps a few weeks before that, this stacks up with the time when Jay Bybee is in transit from the OLC to his judicial position. Congress is reviewing his candidacy, and he's going through the committee process with the Senate Judiciary Committee. No one is aware, as far as I can see—certainly no one on the Senate Judiciary staff nor members of the Senate Judiciary Committee are aware of this entire controversy or aware of these memos.

February 5, 2003

SEN. ORRIN HATCH (R-UTAH): Having said that, Mr. Bybee, if you could stand and raise your right arm to be sworn, do you swear—.

ACKERMAN: Judge Bybee was greatly advantaged by an accident. His Senate hearing occurred just at the moment when Colin Powell was testifying at the United Nations and giving the American government's case for, basically, invading Iraq, so almost all the senators were watching the TV outside the hearing room. All the Democrats were. This was of central importance for the Democratic senators in particular to define their position. One could appreciate why they were watching the tube rather than questioning Judge Bybee.

(OFF CAMERA): —finish the hearings as soon as we can, but—.

ACKERMAN: So there was no critical questioning at all at the hearing room, and that does not normally happen.

HATCH: Mr. Bybee, I've seen a lot of people around here and a lot of judges, and I don't know of anybody who has any more qualifications or any greater ability in the law than you have, and that's counting some pretty exceptional people. And I think that's one reason why this particular hearing has not been as much an ordeal as some of the ones others have had.

HORTON: Had the Senate known about these memos, there's simply no way Bybee ever would have been confirmed as a federal judge to begin with.

ACKERMAN: Other nominees who had some relationship to these tragic events were nominated and were not confirmed. The only difference is that the existence and character of the torture memos was not known in 2003 when Judge Bybee was confirmed, and it was known when these other nominees were considered.

HATCH: There is a belief by some that there is a real effort to slow down this process. Now, I would be the last who would think that that has real merit. Come to think of it, there has been some of that. But I'm hopeful that in your case and the case of many, many others, that we can get you through, get you on the bench, and get you doing your life's work, which is really what that will be, in the best interests of our country. And I have absolutely no doubt that your efforts will be in the best interests of our country.

HORTON: Had all this been out on the record, it's very clear he wouldn't have been confirmed. So that means he secured his confirmation to the bench through stealth.

ACKERMAN: Judge Bybee is going to exercise an important position of power in the United States government for the next 25 years. The question is: shall we remove him from the future exercise of power? And to have someone who has violated the war crimes statute, let's say—let's say he did. If he did, then to interpret the laws of the United States and to tell other people that they should go to jail, well, this is quite something.

HORTON: There may be very good reasons why a prosecutor in the end of the day would decide not to indict Jay Bybee and take him to trial. I can easily understand these considerations. But that someone like this will be sitting as a federal judge at the highest level of court below the Supreme Court? That's outrageous. You know. I think that also there's an obvious solution to this dilemma, and that solution would be for Jay Bybee to resign. And I think if he did so, you'd probably see Republicans applauding along with Democrats. I don't think it would be a partisan thing.

DISCLAIMER:
Please note that TRNN transcripts are typed from a recording of the program; The Real News Network cannot guarantee their complete accuracy.