Another Bush administration legal fiction
unbossed.com
by smintheus
August 24, 2009

The ACLU finally has managed to force the Obama administration to release a less severely redacted version of the May 2004 report on the CIA’s abusive treatment of terrorist suspects (PDF). The report was done by the CIA’s Inspector General, John Helgerson, and (to judge by what remains unredacted) seems to be fairly critical of those abuses and of their legal underpinnings. There’s plenty to say about the contents of this report – for example, the bizarre tortures it catalogues (summarized here).

One thing stood out in the early pages of the document: Bush administration lawyers wrote an undated memo sometime before June 16, 2003 which among other things advanced a no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances of the UN Convention against Torture.

That memo, "Legal Principles Applicable to CIA Detention and Interrogation of Captured Al Qa’ida Personnel", does not appear to be publicly available yet [it is now available]. It was drafted by lawyers at the Justice Department’s Office of Legal Counsel (almost certainly John Yoo) and then finalized by the CIA Office of General Counsel. Here is what the Helgerson report states the memo said about the UN Convention:

The analysis adds that "the [Torture] Convention permits the use of [cruel, inhuman, or degrading treatment] in exigent circumstances, such as a national emergency or war."

• torture versus "cruel, inhuman, or degrading treatment"
• normal circumstances versus "exigent circumstances, such as a national emergency or war."

The UN Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment says no such thing. The OLC/OGC lawyers evidently were insinuating that the Convention drew a very major distinction between the prohibitions against torture on the one hand, and against cruel, inhuman, or degrading treatment on the other. Article 2 of the Convention states explicitly that there are no circumstances that may be used to justify torture:

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

It is true that the Convention does not repeat the Article 2 statement when it later discusses "cruel, inhuman, or degrading treatment". However that discussion (in Article 16) is extremely brief and to the point: that governments should prevent ‘cruel etc. treatment’ as they do torture and should give its victims the same legal recourse as victims of torture. There is no implication whatsoever in the Convention that "exigent circumstances" permit the use of cruel, inhuman, or degrading treatment.

Indeed, the US wrote the following to the UN Committee against Torture ten years ago regarding its implementation of the Convention (Report of the United States to the UN Committee against Torture, October 15, 1999, UN Doc. CAT/C/28/Add.5, February 9, 2000, para. 6):

No exceptional circumstances may be invoked as a justification of torture. US law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a "state of public emergency") or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension.

So, when do the torture memos written by John Yoo and friends rise beyond the level of bad lawyering and into the much shadier territory of deliberate falsification for the purpose of facilitating, enabling, or encouraging torture? Because at that point I’d think even the timid Eric Holder’s Justice Department would be forced to prosecute them.

• No exceptional circumstances may be invoked as a justification of torture. 
• no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances

The behavior of our government after the 9/11 attack on New York was insane. While we might well be forgiving about a lot of it, two things won’t go away. First, we tortured prisoners of war even though we had clear laws forbidding torture. The second was invading a soverign country with no credible Casss Belli [case for war].

What now? How do we deal with what happened? This document, Legal Principles Applicable to CIA Detention and Interrogation of Captured Al Qa’ida Personnel, was written by the counsels at the CIA in consultation with John Yoo, Deputy Attorney General in the Office of Legal Counsel of the Department of Justice. It was treated as an official legal opinion from that office, though no one except Yoo ever saw it. When it was seen at the DoJ it was immediately and repeatedly disavowed as representing an OLC opinion. And, as smintheus points out, it was a flagrantly false legal argument, deliberately misquoting our law and passed off as an official opinion [which it was not].

Prosecute!

^{click the above for a pdf with the full text of three versions}

These bullet points were apparently developed by John Yoo of the OLC and the CIA. They were later repudiated by the OLC when they received a copy from the CIA, seeing them for the first time. I gather Yoo worked these out with the CIA on his own [See Was John Yoo Free-Lancing When He Approved the “Legal Principles”? for the details]. Whatever the case, they contain the conclusions that are spread throughout his memos. If you actually read them all the way through, you’ll get the sense of how outrageous what happened really is.

We’re wandering in the West. This morning, we’re taking our time, getting over colds and travel fatigue. I was reading about Tom Ridge’s assertion that Ashcroft and Rumsfeld pushed him to raise the Threat Level right before the 2004 election to give Bush a boost. I believe that probably happened. It’s consistent with the whole Bush thing of politicizing the DoJ, the DoD, the government.

I was thinking that besides the obnoxious Republicans, maybe the trouble Obama is having with health care is partly a reaction to eight years of government that couldn’t be believed. We’ve been fed such a pile of manure that we don’t trust anything we hear. We spend so much of our time trying to see the hidden agendae that we miss the point of the main course…

Bush signs stimulus bill rebate checks expected in May
February 13, 2008

WASHINGTON (CNN) — President Bush on Wednesday signed the Economic Stimulus Act of 2008, calling it a "booster shot" for the American economy. "The bill I’m signing today is large enough to have an impact, amounting to more than $152 billion this year, or about 1 percent of the GDP (gross domestic product)," the president said in the brief ceremony in the East Room of the White House.

The government hopes the measure, which will send most Americans tax rebate checks by May, will either prevent a recession or make one relatively brief. The package also includes tax breaks for equipment purchases by businesses, as well as payments to disabled veterans and some senior citizens.

The bipartisan measure moved through Congress at relative break-neck speed, going from initial discussions to enactment in less than four weeks. The package will pay $600 to most individual taxpayers and $1,200 to married taxpayers filing joint returns, so long as they are below income caps of $75,000 for individuals and $150,000 for couples. There is also a $300 per child tax credit. The rebates will put about $120 billion in the hands of individuals in the hope that they will spend it and boost a faltering U.S. economy…

Remember the Economic Stimulus Package of 2008? On this 2 year DOW graph, it’s where the DOW first fell down to 12,000. May [when the checks went out] is where it falls steadily from 13,000 to 11,000. It held between 11,000 and 12,000 for a few months, then tanked seriously in early October.

My point? All this talk about fiscal conservatism and the debt is political hackery. The  Republicans cut taxes, increased spending, piddled around with stimulus, ran up the debt, and created an unholy mess. Now they’re arguing that he health care reform will cost too much, ignoring the fact that the health care INDUSTRY is killing our economy while leaving many Americans with no access to health care at all.

CIA Used Gun, Drill in Interrogation
IG Report Describes Tactics Against Alleged Cole Mastermind

By Joby Warrick and R. Jeffrey Smith
Washington Post
August 22, 2009

CIA interrogators used a handgun and an electric drill to try to frighten a captured al-Qaeda commander into giving up information, according to a long-concealed agency report due to be made public next week, former and current U.S. officials who have read the document said Friday. The tactics — which one official described Friday as a threatened execution — were used on Abd al-Rahim al-Nashiri, according to the CIA’s inspector general’s report on the agency’s interrogation program. Nashiri, who was captured in November 2002 and held for four years in one of the CIA’s "black site" prisons, ultimately became one of three al-Qaeda chieftains subjected to a form of simulated drowning known as waterboarding.

The report also says that a mock execution was staged in a room next to one terrorism suspect, according to Newsweek magazine, citing two sources for its information. The magazine was the first to publish details from the report, which it did on its Web site late Friday. A federal judge in New York has ordered a redacted version of the classified IG report to be publicly released Monday, in response to a lawsuit by the American Civil Liberties Union. Since June, lawyers for the Justice Department and the CIA have been scrutinizing the document to determine how much of it can be made public. Attorney General Eric H. Holder Jr. has been weighing the report’s findings as part of a broader probe into the CIA’s use of harsh interrogation methods.

The IG’s report, written in 2004, offers new details about Nashiri’s interrogation, including the incidents in which the detainee reportedly was threatened with death or grave injury if he refused to cooperate, one current and one former U.S. official told The Post. Both officials have seen classified versions of the report. In one instance, an interrogator showed Nashiri a gun and sought to frighten the detainee into thinking he would be shot, the sources said. In a separate encounter, a power drill was held near Nashiri’s body and repeatedly turned on and off, said the officials, who spoke about the report on the condition of anonymity because it remains classified.

The federal torture statute prohibits a U.S. national from threatening anyone in his or her custody with imminent death. Three months before Nashiri’s capture, the head of the Justice Department’s Office of Legal Counsel — Jay S. Bybee, now a federal judge — advised the CIA in an August 2002 memo that threats of "imminent death" were not illegal unless they deliberately produced prolonged mental harm. Independent legal experts have called that interpretation too hedged and thus too lax…

Again, it’s not that we’ve forgotten how angry and frightened we were after 9/11. But the rules were made for just that eventuality – when our emotions were running high. Who was this guy that lead us to ignore our own rules? What was the point?

He was a bad actor, sure enough – maybe constructing the bomb used in the U.S. Cole bombing. But as to his torture, there’s the very real possibility that our motive was to get al-Nashiri to confirm an al Qaeda/Saddam Hussein connection. The timing is right. Bushies had begun to talk up Iraq in September and they were desparate for some justification.

So to the central point of this article – Bybee’s Memo – which seems to me to be a greater crime than that of the interrogators. Bybee reframes the Federal Torture Statute [which explicitly says that threats of imminent death are illegal]. In Bybee’s world, death threats are only illegal if they deliberately produced prolonged mental harm. What is obscene about this interpretation is that it’s okay to produce prolonged mental harm if you don’t have that intent. What can that possibly mean? It’s more than too hedged, it’s absurd. I think that one of the main reasons to pursue these Memos in the courts is to make it clear that this kind of manipulation of the law will not be tolerated no matter what the topic. To my way of thinking, crazy laws are worse than no laws at all.

One of the outcomes of all of this should be that there be no situation where people like Jay Bybee and John Yoo can render interpretations of the law without judicial review by a court that is not controlled by the people requesting the opinion. These two guys weren’t functioning as lawyers or judges. They were "plants." No lawyer in his right mind would’ve made a decision like this one on his/her own. It’s inconceivable that someone would define torture by the mindset of the torturer rather that by the impact on the tortured person. And further, the questions being asked were themselves crazy in the first place. "How can we torture people and make them tell us what they know without being prosecuted for torture."

C.I.A. Sought Blackwater’s Help in Plan to Kill Jihadists
New York Times
By MARK MAZZETTI
August 19, 2009

The Central Intelligence Agency in 2004 hired outside contractors from the private security contractor Blackwater USA as part of a secret program to locate and assassinate top operatives of Al Qaeda, according to current and former government officials.

Executives from Blackwater, which has generated controversy because of its aggressive tactics in Iraq, helped the spy agency with planning, training and surveillance. The C.I.A. spent several million dollars on the program, which did not successfully capture or kill any terrorist suspects.

The fact that the C.I.A. used an outside company for the program was a major reason that Leon E. Panetta, the C.I.A.’s director, became alarmed and called an emergency meeting in June to tell Congress that the agency had withheld details of the program for seven years, the officials said.

It is unclear whether the C.I.A. had planned to use the contractors to actually capture or kill Qaeda operatives, or just to help with training and surveillance in the program. American spy agencies have in recent years outsourced some highly controversial work, including the interrogation of prisoners. But government officials said that bringing outsiders into a program with lethal authority raised deep concerns about accountability in covert operations…

It is unclear whether the C.I.A. had planned to use the contractors to actually capture or kill Qaeda operatives, or just to help with training and surveillance in the program.

CIA Hired Firm for Assassin Program
Blackwater Missions Against Al-Qaeda Never Began, Ex-Officials Say
By Joby Warrick and R. Jeffrey Smith
Washington Post
August 20, 2009

A secret CIA program to kill top al-Qaeda leaders with assassination teams was outsourced in 2004 to Blackwater USA, the private security contractor whose operations in Iraq prompted intense scrutiny, according to two former intelligence officials familiar with the events.

The North Carolina-based company was given operational responsibility for targeting terrorist commanders and was awarded millions of dollars for training and weaponry, but the program was canceled before any missions were conducted, the two officials said.

The assassination program — revealed to Congress in June by CIA Director Leon Panetta — was initially launched in 2001 as a CIA-led effort to kill or capture top al-Qaeda members using the agency’s paramilitary forces. But in 2004, after briefly terminating the program, agency officials decided to revive it under a different code name, using outside contractors, the officials said.

"Outsourcing gave the agency more protection in case something went wrong," said a retired intelligence officer intimately familiar with the assassination program…

The Crazy Man Above the Garage
By: emptywheel
August 18, 2009

… Gellman provides the following weird two paragraphs, which provide the great drama of the story.

^{The depths of Cheney’s distress about another close friend, his former chief of staff and alter ego I. Lewis “Scooter” Libby, have only recently become clear. Bush refused a pardon after Libby’s felony convictions in 2007 for perjury and obstruction of an investigation of the leak of a clandestine CIA officer’s identity. Cheney tried mightily to prevent Libby’s fall, scrawling in a note made public at trial that he would not let anyone “sacrifice the guy that was asked to stick his neck in the meat grinder.” Cheney never explained the allusion, but grand jury transcripts — and independent counsel Patrick J. Fitzgerald — suggested that Libby’s false statements aimed above all to protect the vice president.}
^{Last month, an account in Time magazine, based on close access to Bush’s personal lawyer and White House counsel, described Cheney’s desperate end-of-term efforts to change Bush’s mind about a pardon. Cheney, who has spent a professional lifetime ignoring unflattering stories, issued a quietly furious reply. In the most explicit terms, he accused Bush of abandoning “an innocent man” who had served the president with honor and then become the “victim of a severe miscarriage of justice.” Cheney now says privately that his memoir, expected to be published in spring 2011, will describe their heated arguments in full.}

 This bit–which is what stuck in my craw–deserves some really close unpacking.

^{Cheney tried mightily to prevent Libby’s fall, scrawling in a note made public at trial that he would not let anyone “sacrifice the guy that was asked to stick his neck in the meat grinder.” Cheney never explained the allusion, but grand jury transcripts — and independent counsel Patrick J. Fitzgerald — suggested that Libby’s false statements aimed above all to protect the vice president.} 

Now, Gellman is ostensibly talking about Cheney’s efforts to get Bush to pardon Libby, actions that started in 2007 (and which, at the earliest, he might have first contemplated in 2005, when Judy Miller testified to the grand jury). But as his proof that “Cheney tried mightily to prevent Libby’s fall,” Gellman raises the meat-grinder note. And that note–written around October 4, 2003–had absolutely nothing to do with preventing Libby’s “fall” referred to here–his conviction for perjury and obstruction of justice. Hell, it was written before the perjury (and false statements) occurred!! Rather, the reference to “not going to protect one staffer and sacrifice the guy the Pres that was asked to stick his neck in the meat grinder,” had to do with protecting Libby from speculation in the press about his involvement in leaking Plame’s identity. Now, that is a sort of attempt to prevent Libby’s fall, but it’s not the one Gellman describes in this context. 

In the most explicit terms, he accused Bush of abandoning “an innocent man” who had served the president with honor and then become the “victim of a severe miscarriage of justice.” Cheney now says privately that his memoir, expected to be published in spring 2011, will describe their heated arguments in full.

Rove "Driving Force" Behind US Attorney Firings
t r u t h o u t
by: Jason Leopold
August 13, 2009

^{Political adviser Karl Rove and other officials inside George W. Bush’s White House pushed for the firing of a key federal prosecutor because he wasn’t cooperating with Republican plans for indicting Democrats and their allies before the 2006 election, according to internal documents and depositions… In a recent interview with The New York Times and The Washington Post, Rove downplayed his role in the firings, saying he only acted as a "conduit" for complaints that Republican Party officials and GOP lawmakers sent to him about the federal prosecutors. The documents tell a different story.}

^{The documents reveal that Rove, his White House aides and then-White House counsel Harriet Miers actively participated in the decision to oust New Mexico US Attorney David Iglesias because Republicans had wanted him to bring charges against Democrats regarding alleged voter fraud and other issues. Iglesias refused to do that. According to Miers’s closed-door testimony to the House Judiciary Committee, a "very agitated" Rove phoned her from New Mexico, apparently in September 2006, and told her that Iglesias was "a serious problem and he wanted something done about it." At the time of the phone call, Rove had just met with New Mexico Republican Party officials angry at Iglesias, who was refusing to proceed with voter fraud cases because he felt the evidence was weak and because pre-election indictments would violate Justice Department guidelines.}

^{Miers said she responded to Rove’s call by getting on the phone to Deputy Attorney General Paul McNulty and passing along the message that Rove "is getting lots of complaints." Miers added, "it was a problem." About one month later, Iglesias was added to the list of US attorneys to be removed. But the documents show that White House dissatisfaction with Iglesias over his resistance to bringing politically motivated cases against Democrats had been building for more than a year. On June 28, 2005, Scott Jennings, one of Rove’s aides, sent an e-mail to Tim Griffin, another Rove aide, asking what could be done to remove Iglesias. "I would really like to move forward with getting rid of NM US ATTY," Jennings wrote, complaining that "Iglesias has done nothing" on prosecuting voter fraud cases and adding: "We’re getting killed out there"…}

^{Besides the Bush White House pressure for ousting Iglesias, powerful New Mexico Republicans also weighed in. In October 2006, a month before the midterm elections that cost Republicans control of Congress, an e-mail chain started by Rep. Heather Wilson (R-New Mexico) faulted Iglesias for not using his office in a manner that would help Wilson in her reelection campaign. Wilson’s e-mail included a news report about an FBI probe of Rep. Curt Weldon (R-Pennsylvania) as an example of criminal investigations proceeding close to election day.}

^{Steve Bell, chief of staff to New Mexico Sen. Pete Domenici, forwarded the e-mail to Jennings at Rove’s White House shop, with a note saying it "seems like other U.S. attorneys can do their work even in election season. And the FBI has already admitted they have turned over their evidence [in a federal corruption probe] to the [U.S. Attorney] in [New Mexico] and are merely awaiting his action."}

^{Jennings then passed along the e-mail to Rove, saying Iglesias was "shy about doing his job on [Patricia] Madrid," a Democratic Congressional candidate who would lose the 2006 election to Wilson by only 800 votes. Last year, Wilson told Justice Department watchdogs investigating the US attorney purge that the context of her e-mail was more of a "heads up" to the recipients. She said that if she were asked by reporters about an FBI investigation into Madrid, she would confirm it. Madrid was New Mexico’s former attorney general who was involved with a political action committee that was allegedly under scrutiny.}

^{Domenici also intervened, personally lobbying Bush’s top aides to fire Iglesias, according to the documents. Between September 2005 and April 2006, Domenici called Attorney General Alberto Gonzales three times to complain about Iglesias’s handling of voter fraud and corruption probes and to ask that he be fired. Gonzales testified to Congress that he did not recall Domenici ever making such a request. Gonzales resigned in August 2007 amid political fallout from the prosecutor-firing scandal.}

^{On October 4, 2006, Domenici also called Deputy Attorney General McNulty, "expressing concern about Iglesias’s lack of fitness for the job of U.S. Attorney." At one point, according to Rove’s testimony, Domenici wanted to speak with President Bush to press his case, but Rove talked him out of it. However, in October 2006, the senator personally asked Bush’s chief of staff Josh Bolten to replace Iglesias, according to White House phone logs and e-mails.}

^{In Congressional testimony, Iglesias said he also received telephone calls from Domenici and Wilson in October 2006 inquiring about the timing of an indictment against former state Sen. Manny Aragon, a Democrat, and other Democrats who were involved in a courthouse construction project. Domenici’s interventions prompted a Senate Ethics Committee investigation, which resulted last year in a letter of reprimand for creating an "appearance of impropriety." Special prosecutor Dannehy is probing possible obstruction of justice charges against Domenici and his former aide Steve Bell.}

^{Dannehy secured the testimony last April of Scott O’Neal, the assistant FBI special agent in charge of the Albuquerque field office, who reportedly informed Domenici or his aide Bell about the status of the FBI’s investigation of alleged Democratic wrongdoing, according to legal sources who requested anonymity because of secrecy surrounding the probe. In an interview, former US Attorney Iglesias said the briefing to Domenici and/or Bell, if it did take place, would be significant because it would have required approval from himself or his former colleagues who never received a formal request from O’Neal or his FBI superiors. The US attorney’s manual states that "personnel of the Department of Justice shall not respond to questions about the existence of an ongoing investigation or comment on its nature or progress, including such things as the issuance or serving of a subpoena, prior to the public filing of the document"…}