The U.S. Torture Prosecutions

U.S. Attorney General's Eric Holder announced Monday that he has appointed an independent prosecutor to investigate allegations of torture against some CIA interrogators who questioned detainees captured in the previous administration's "war on terror." Law.com reports:

Career federal prosecutor John Durham, who is overseeing the investigation of the destruction of CIA interrogation tapes, was tapped Monday to explore potential violations of anti-torture laws rooted in the interrogation of certain detainees, Attorney General Eric Holder Jr. said in a statement Monday afternoon.

The Department of Justice internal watchdog, the Office of Professional Responsibility, submitted to Holder a report Monday that recommended the department re-examine earlier decisions, made under the Bush administration, to decline to prosecute apparent violations of anti-torture laws.

In reaching his decision to appoint a prosecutor, Holder also reviewed a 2004 report compiled by the CIA inspector general's office. "As a result of my analysis of all of this material, I have concluded that the information known to me warrants opening a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations," Holder said in a statement Monday.

The New York Times has posted the complete Justice Department report relied upon by the Attorney General. The Times has also published a number of related documents. Included are two reports that former Vice President Dick Cheney has previously demanded be released, which he claims demonstrate the "success" of the "harsh" interrogation methods that were implemented:

Khalid Shaykh Muhammad: Preeminent Source On Al-Qa’ida

Detainee Reporting Pivotal for the War Against Al-Qa’ida

The remaining documents released and posted by the Times were:

• A 2006 letter from Steven G. Bradbury, then acting assistant attorney general, to John A. Rizzo, acting general counsel at the C.I.A., advising that the “conditions of confinement” in the agency’s overseas prisons were permitted by the Geneva Conventions (pdf).


• A 2004 letter to Dan Levin, acting assistant attorney general, describing the C.I.A.’s use of interrogation tactics in combination (pdf).

Constitutional attorney Glen Greenwald is highly critical of the limited scope of the Holder announcement:

Holder's decision does not amount to the appointment of a Special Prosecutor, since a preliminary review is used, as he emphasized, "to gather information to determine whether there is sufficient predication to warrant a full investigation of a matter." More important, the scope of the "review" is limited at the outsetto those who failed to "act in good faith and within the scope of legal guidance" -- meaning only those interrogators and other officials who exceeded the torture limits which John Yoo and Jay Bybee approved. Those who, with good faith, tortured within the limits of the OLC memos will "be protected from legal jeopardy" (the full Holder statement is here).

In theory, Holder's announcement does not foreclose the possibility that DOJ lawyers who authored the torture memos and/or those in the White House who authorized torture will, at some point, be investigated.

...As a practical matter, Holder is consciously establishing as the legal baseline -- he's vesting with sterling legal authority -- those warped, torture-justifying DOJ memos. Worse, his pledge of immunity today for those who complied with those memos went beyond mere interrogators and includes everyone, policymakers and lawyers alike: "the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees." Thus, as long as, say, a White House official shows that (a) the only torture methods they ordered were approved by the OLC and (b) they did not know those methods were criminal, then they would be entitled to full-scale immunity under the standard Holder announced today.

This quite likely sets up, at most, a process where a few low-level sacrificial lambs -- some extra-sadistic intelligence versions of Lynndie Englands -- might be investigated and prosecuted where they tortured people the wrong way. Those who tortured "the right way" -- meaning the way the OLC directed -- will receive full-scale immunity.

This decision to investigate, and possibly prosecute, only low-level operatives - while shielding the actual architects of the Bush-Cheney torture policies - is unforgivable, a position also well- advocated in this comment from BNP.

Whether or not torture is effective is not actually the issue. The real issue is that torture is just as illegal as bank robbery [see 18 U.S. Code 2340(a) and2340]. Until bank robbery is made legal, people who get caught helping themselves to a bank's money end up in rison. That's justice.

If government officials want to commit torture without going to prison, then they need to pressure Congress to make torture legal.

Until they do that, torture is a violation of law -- which means, at least in a nation that values equal justice under the law, that those who commit torture (or order underlings to do it) should be held accountable.

Andrew Sullivan makes the broader point. With the inevitable, next Republican political ascendancy, pro-torture advocates will simply return to "business as usual." History will repeat itself unless the previous administration's torture practices are thoroughly discredited and legally repudiated:

One political party in this country is now explicitly pro-torture, and wants to restore a torture regime if it regains power. Decent conservatives for the most part simply looked the other way. Unless these cultural forces in defense of violence and torture are defeated - not appeased or excused, but defeated - America will never return the way it once was. Electing a new president was the start and not the end of this. He is flawed, as every president is, but in my view, the scale of the mess he inherited demands some slack. Any new criminal investigation which scapegoats those at the bottom while protecting the guilty men and women who made it happen is a travesty of justice. If it is the end and not the beginning of accountability, it will be worse than nothing.

Worse than nothing, indeed.

- Garry J. Wise, Toronto

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American Dictatorship?

As usual, Glenn Greenwald delivers with his seminal crtitique on the constitutional implications of nine, newly-released and highly-controversial legal opinions prepared by the U.S. Office of Legal Counsel during the Bush presidency.

The memoranda were relied upon by the Bush administration in prosecution of its so-called "War on Terror."

Mr. Greenwald:

Let's just look at one of those documents (.pdf) -- entitled "Authority for Use of Military Force to Combat Terrorist Activities Within the U.S." It was sent to (and requested by) Defense Department General Counsel William J. Haynes and authored by Assistant Attorney General John Yoo and DOJ Special Counsel Robert Delahunty. But it's not a "Yoo memo." Rather, it was the official and formal position of the U.S. Government -- at least of the omnipotent Executive Branch -- from the time it was issued until just several months George Bush before left office (October, 2008), when OLC Chief Stephen Bradbury abruptly issued a memo withdrawing, denouncing and repudiating both its reasoning and conclusions.

The essence of this document was to declare that George Bush had the authority (a) to deploy the U.S. military inside the U.S., (b) directed at foreign nationals and U.S. citizens alike; (c) unconstrained by any Constitutional limits, including those of the First, Fourth and Fifth Amendments. It was nothing less than an explicit decree that, when it comes to Presidential power, the Bill of Rights was suspended, even on U.S. soil and as applied to U.S. citizens. And it wasn't only a decree that existed in theory; this secret proclamation that the Fourth Amendment was inapplicable to what the document calls "domestic military operations" was, among other things, the basis on which Bush ordered the NSA, an arm of the U.S. military, to turn inwards and begin spying -- in secret and with no oversight -- on the electronic communications (telephone calls and emails) of U.S. citizens on U.S. soil.

...More amazingly still, there is almost certainly a whole slew of other activities that remain concealed, and very well may remain undisclosed for years, as a result of the creepy Orwellian slogans embraced in unison by our political class -- look towards the future, not the past!; only "liberal score-settlers" want an investigation of any of this. That mentality is being aided by a new administration that seems bizarrely desperate to keep concealed the secrets of the old one. As but one example, we know that the Bush administration was engaged in certain surveillance activities aimed at U.S. citizens that were so patently illegal and wrong that even the right-wing fanatics in Bush's own Justice Department (such as John Aschroft) threatened to resign immediately if they didn't cease, yet we still, to this day, don't know what those domestic surveillance activities were.

The most vital point is that all of the documents released yesterday by the Obama DOJ comprise nothing less than a regime of secret laws under which we were governed. Nothing was redacted when those documents yesterday were released because they don't contain any national security secrets. They're nothing more than legal decrees, written by lawyers. They're just laws that were implemented with no acts of Congress, unilaterally by the Executive branch. Yet even the very laws that governed us were kept secret for eight years.

This is factually true, with no hyperbole: Over the last eight years, we had a system in place where we pretended that our "laws" were the things enacted out in the open by our Congress and that were set forth by the Constitution. The reality, though, was that our Government secretly vested itself with the power to ignore those public laws, to declare them invalid, and instead, create a whole regimen of secret laws that vested tyrannical, monarchical power in the President. Nobody knew what those secret laws were because even Congress, despite a few lame and meek requests, was denied access to them. What kind of country lives under secret laws?

See Mr. Greenwald's article, The newly released secret laws of the Bush administration

More reading:

• Justice Department to Reveal More Bush Administration Legal Memos - Washington Post
• 2001 Bush legal memo allowed ‘First Amendment speech and press rights’ to be ’subordinated.’ - Think Progress
• Criminals In The Bush White House, Ctd. - Andrew Sullivan
• Obama cuts through Bush secrecy - CNN
• What John Yoo's OLC Memos on the Terrorist Surveillance Program Probably Said - Volokh Conspiracy
• Release of Memos Fuels Push for Inquiry Into Bush’s Terror-Fighting Policies - N.Y. Times

- Garry J. Wise, Toronto

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"Never Any Justification"

David H. Remes, a lawyer who represents eleven Guantanamo Bay detainees:

“There is never any justification for destroying materials that any reasonable person would believe might be requested in a civil or criminal proceeding,” said Mr. Remes, of the law firm Covington & Burling. “The C.I.A. had every reason to believe the videotapes would be relevant down the road.”

- From a New York Times report

- Garry J. Wise, Toronto

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ABC News: CIA Interrogator Acknowledges Waterboarding is Torture

ABC News:

A leader of the CIA team that captured the first major al Qaeda figure, Abu Zubaydah, says subjecting him to waterboarding was torture but necessary.

In the first public comment by any CIA officer involved in handling high-value al Qaeda targets, John Kiriakou, now retired, said the technique broke Zubaydah in less than 35 seconds.

... Kiriakou says he did not know that the interrogation of Zubaydah was being secretly recorded by the CIA and had no idea the tapes had been destroyed.

Now retired, Kiriakou, who declined to use the enhanced interrogation techniques, says he has come to believe that water boarding is torture but that perhaps the circumstances warranted it.

Watch the full interview: CIA Agent Speaks Out, Part 1

- Garry J. Wise, Toronto

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Did CIA Lawyers OK Torture Tape Destruction?

According to a New York Times report, CIA lawyers played an integral role in approving the destruction of videotapes depicting the US interrogations and waterboardings of key Al Quaeda prisoners:

WASHINGTON, Dec. 10 — Lawyers within the clandestine branch of the Central Intelligence Agency gave written approval in advance to the destruction in 2005 of hundreds of hours of videotapes documenting interrogations of two lieutenants from Al Qaeda, according to a former senior intelligence official with direct knowledge of the episode.

The involvement of agency lawyers in the decision making would widen the scope of the inquiries into the matter that have now begun in Congress and within the Justice Department. Any written documents are certain to be a focus of government investigators as they try to reconstruct the events leading up to the tapes’ destruction.
The former intelligence official acknowledged that there had been nearly two years of debate among government agencies about what to do with the tapes, and that lawyers within the White House and the Justice Department had in 2003 advised against a plan to destroy them. But the official said that C.I.A. officials had continued to press the White House for a firm decision, and that the C.I.A. was never given a direct order not to destroy the tapes.

“They never told us, ‘Hell, no,’” he said. “If somebody had said, ‘You cannot destroy them,’ we would not have destroyed them.”

... In describing the decision to destroy the tapes, current and former officials said John A. Rizzo, the agency’s top lawyer at the time, was not asked for final approval before the tapes were destroyed, although Mr. Rizzo had been involved in discussions for two years about the tapes.

It is unclear what weight an opinion from a lawyer within the clandestine service would have if it were not formally approved by Mr. Rizzo. But the former official said Mr. Rodriguez and others in the clandestine branch believed the legal judgment gave them the blessing to destroy the tapes.

...Gen. Michael V. Hayden, the C.I.A. director, is scheduled to appear before a closed session of the Senate Intelligence Committee on Tuesday to answer questions about the tapes’ destruction. He has defended the action as having been “done in line with the law,” but the destruction has prompted sharp criticism from Republicans and Democrats in Congress.

It is no secret that there are rogue lawyers within the Bush Administration. They have regularly provided specious legal opinions that stretch credulity. They have given the sheen of legal cover to the Administration in countless circumstances of Constitutional line-crossing, ancillary to the so called War on Terror.

Nonetheless, blaming the lawyers in this instance seems little more than a trial balloon that entirely misses the point. Legal advisers have never been the decision makers here.

Responsibility lies upstairs for the outlandish decisions to utilize torture and to obstruct justice by destroying videotape evidence of it.

Way upstairs.

- Garry J. Wise, Toronto

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The CIA Torture Tapes

Yet another, potentially devastating scandal broke in Washington this week.

On Thursday, the New York Times reported that in 2005, the CIA destroyed at least two videotapes of interrogations by American agents of purportedly major, Al Quaida operatives, during which so-called "enhanced techniques," including waterboarding were utilized.

Counterterrorism expert Larry Johnson commented on General Michael Hayden's "official" explanation that the tapes were destroyed as a security measure to ensure that the interrogators would never be exposed to potential retaliation by Al Quaida:

The Hayden excuse does not pass the bullshit test.

...Let’s be clear why these were destroyed–the chief of the Operations Division, Jose Rodriguez, understood that this was video evidence of torture. It was not the exposure of clandestine identities that had him fretting. It was the fear that CIA officers and contractors could be standing before a tribunal in the Hague trying to explain why the images of torture were not torture.

President Bush claims to have "no recollection of being made aware of the tapes or their existence" before they were destroyed.

The Washington Post reports that Justice Department investigations into the destruction of the tapes are already underway:

The Justice Department and the CIA announced yesterday that they have started a preliminary inquiry into the CIA's 2005 destruction of videotapes that depicted harsh interrogation of two terrorism suspects.

The announcement follows congressional demands Friday for an investigation into the CIA's action despite warnings from the White House and congressional leaders to preserve the tapes.

Conservative writer Andrew Sullivan responds today with strong words in his article, What The Tapes Would Have Shown:

These tapes could have brought all this home to the American public and the world, revealing the president to be an active proponent of torture, even of a mentally ill man who provided nothing of any worth. They were and are critical to proving - in way that could not be denied or buried - that we have a war criminal in the Oval Office. That is surely the simplest and most obvious reason they were destroyed. And it's the most plausible reason that on a matter in which he was very personally involved, a matter where he risked being exposed as a war criminal, the president "has no recollection" of being informed about the tapes' destruction.

I've long argued that the simple facts of the detention and interrogation program leave no doubt in my mind that war crimes have occurred. I've also believed that at some point, the guilty men would be exposed and brought to justice. That may be about to happen. And it is the Congress's and the Attorney Genera's vital responsibility to see that justice is served, whomever it applies to.

For more on the destruction of the CIA torture videotapes see:

• Justice, CIA Begin Videotape Inquiry - Washington Post
• What The Tapes Would Have Shown - Andrew Sullivan
• Bush: 'No recollection' of CIA tapes - CNN
• CIA ignored warnings about interrogation videos - TPM
• ‘Well-Informed’ Source Tells CBS That Tapes Were Destroyed To Prevent Prosecution - Think Progress
• Destruction of CIA Tapes Could Threaten Prosecutions - Talk Left
• Capitol Hill Dems Push for CIA Tape Inquiry - Truthdig
• White House told CIA not to destroy tapes - Raw Story
• Dems Seek Probe re CIA Tapes; Destruction a Plus for Suspects’ Defense? - ABA Journal
• Obstruction of Justice? - TPM
• The Torture Advocate Behind The CIA Tape Destruction - Andrew Sullivan
• C.I.A. Destroyed 2 Tapes Showing Interrogations - New York Times

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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