How About NOW? Can We Prosecute The Torture NOW?

From McClatchy:

A still-secret Senate Intelligence Committee report calls into question the legal foundation of the CIA’s use of waterboarding and other harsh interrogation techniques on suspected terrorists, a finding that challenges the key defense on which the agency and the Bush administration relied in arguing that the methods didn't constitute torture.

And:

The investigation determined that the program produced very little intelligence of value and that the CIA misled the Bush White House, the Congress and the public about the effectiveness of the interrogation techniques, committee members have said.

The techniques included waterboarding, which produces a sensation of drowning, stress positions, sleep deprivation for up to 11 days at a time, confinement in a cramped box, slaps and slamming detainees into walls. The CIA held detainees in secret “black site” prisons overseas and abducted others who it turned over to foreign governments for interrogation.

And here's where offensive gets offensiv-ier:

Some current and former U.S. officials and military commanders, numerous experts and foreign governments have condemned the harsh interrogation methods as violations of international and U.S. laws against torture, a charge denied by the CIA and the Bush administration.

They've based their defense on a series of top-secret legal opinions issued by the Justice Department beginning in August 2002. At that time, the agency sought advice on whether using the harsh techniques on Zayn al Abidin Muhammad Husayn, a close aide to Osama bin Laden who went by the nom de guerre Abu Zubaydah, would violate U.S. law against torture.

The Justice Department’s Office of Legal Counsel found that the methods wouldn't breach the law because those applying them didn't have the specific intent of inflicting severe pain or suffering.

The Senate report, however, concluded that the Justice Department’s legal analyses were based on flawed information provided by the CIA, which prevented a proper evaluation of the program’s legality. [Emphasis added.]

Now remember, those legal "opinions" of August, 2002 and afterwards were later characterized by Jack Goldsmith, one time head of the Office of Legal Counsel, as tendentious, overly broad and legally flawed. and he withdrew them on the day he resigned.  The memos were reissued and then later formally withdrawn by the Obama Administration

So the CIA lies to Justice about the torture, the OLC within Justice issues a set of memos OK-ing the CIA's torture and then the CIA uses the memos as a "golden shield" to protect them against...prosecution.

But if it's all based on a lie, then when can we start prosecuting the torture?

Can We Prosecute The Torture NOW??

In case you missed it, there's been a bit of conflict between the Senate Intelligence Committee and the CIA recently.  From the Washington Post:

A behind-the-scenes battle between the CIA and Congress erupted in public Tuesday as the head of the Senate Intelligence Committee accused the agency of breaking laws and breaching constitutional principles in an alleged effort to undermine the panel’s multi-year investigation of a controversial interrogation program.

Chairman Dianne Feinstein (D-Calif.) accused the CIA of ­secretly removing documents, searching computers used by the committee and attempting to intimidate congressional investigators by requesting an FBI inquiry of their conduct — charges that CIA Director John Brennan disputed within hours of her appearance on the Senate floor.

The CIA, in turn, charged the committees staffers with an unauthorized removal of some documents and requested an investigation.  From McClatchy:

The FBI is investigating the alleged unauthorized removal of classified documents from a secret CIA facility by Senate Intelligence Committee staff who prepared a study of the agency’s use of harsh interrogation techniques on suspected terrorists in secret overseas detention centers, McClatchy has learned.

The FBI’s involvement takes to a new level an extraordinary behind-the-scenes battle over the report that has plunged relations between the agency and its congressional overseers to their iciest in decades. The dispute also has intensified uncertainty about how much of the committee’s four-year-long study will ever be made public.

The FBI investigation stemmed from a request to the Justice Department by the CIA general counsel’s office for a criminal investigation into the removal last fall of classified documents by committee staff from a high-security electronic reading room that they were required to use to review top-secret emails and other materials, people familiar with issue told McClatchy. The existence of the referral was first reported online Thursday afternoon by Time magazine.

So what's going on?  For that we go back to the Post:

The dueling claims exposed bitterness and distrust that have soared to new levels as the committee nears completion of a 6,000-page report that is expected to serve as a scathing historical record of the agency’s use of waterboarding and other brutal interrogation methods on terrorism suspects held at secret CIA prisons overseas after the attacks of Sept. 11, 2001.

Well not it looks like someone's been able to take a look at that report. And it ain't good:

A report by the Senate Intelligence Committee concludes that the CIA misled the government and the public about aspects of its brutal interrogation program for years — concealing details about the severity of its methods, overstating the significance of plots and prisoners, and taking credit for critical pieces of intelligence that detainees had in fact surrendered before they were subjected to harsh techniques.

The report, built around detailed chronologies of dozens of CIA detainees, documents a long-standing pattern of unsubstantiated claims as agency officials sought permission to use — and later tried to defend — excruciating interrogation methods that yielded little, if any, significant intelligence, according to U.S. officials who have reviewed the document.

These would be the same enhanced techniques that former Vice President (and still unprosecuted war criminal) Dick Cheney defended recently:

According to Cheney, the enhanced interrogation tactics used do not fall under the scope of the 1949 United Nations Geneva Convention, which outlaws cruel, inhuman or any degrading treatment or punishment because the Geneva Convention does not apply to unlawful combatants.

The Bush administration considered terrorists as unlawful combatants and considered those undergoing enhanced interrogation tactics as terrorists.

“If I would have to do it all over again, I would,” Cheney said. “The results speak for themselves.”

Yea, that torture.  The report, on the other hand, tells a different story:

“The CIA described [its program] repeatedly both to the Department of Justice and eventually to Congress as getting unique, otherwise unobtainable intelligence that helped disrupt terrorist plots and save thousands of lives,” said one U.S. official briefed on the report. “Was that actually true? The answer is no.”

And then there's this:

If declassified, the report could reveal new information on the treatment of a high-value detainee named Ali Abdul Aziz Ali, the nephew of Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11 attacks. Pakistan captured Ali, known more commonly as Ammar al-Baluchi, on April, 30, 2003, in Karachi and turned him over to the CIA about a week later. He was taken to a CIA black site called “Salt Pit” near Kabul.

At the secret prison, Baluchi endured a regime that included being dunked in a tub filled with ice water. CIA interrogators forcibly kept his head under the water while he struggled to breathe and beat him repeatedly, hitting him with a truncheon-like object and smashing his head against a wall, officials said.

And still none of this led to any "otherwise unobtainable intelligence" that could be used to protect the United States and its citizens.  It was illegal, immoral and it didn't work.

And this is what George Bush agreed to with his ballsy "Damn right."

Can we prosecute the torture now??

Jack Kelly Sunday

Oh, the hypocrisy!

In his column at the Post-Gazette this Sunday, Jack Kelly swerves a full 180.  He starts with:

Is obeying the law optional?

President Barack Obama seems to think it is -- at least insofar as it applies to him.

The administration announced this month that it plans to delay enforcement of the provision in Obamacare which requires employers with 50 or more full-time employees to provide them with health insurance (which contains certain government-mandated provisions), or pay a fine of $2,000 per worker.

Section 1513(d) of the Obamacare law states clearly that "The amendments made by this section shall apply to months beginning after December 31, 2013."

This is important because the Constitution says the president "shall take care that the laws be faithfully executed" (Article II, Section 3).

Jack's fellow travelers over on the Scaife editorial board have already tried this one and in general I am surprised that our friends on the right would even think of writing this.

Where the hell were they when this happened?

In October, 2005 Senator John McCain (a well-known Republican) offered up an amendment to the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006 (H.R. 2863) which became Title X of the bill.  It states:

No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.

And specifically:

(a) In General.--No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

(b) Construction.--Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section.

(c) Limitation on Supersedure.--The provisions of this section shall not be superseded, except by a provision of law enacted after the date of the enactment of this Act which specifically repeals, modifies, or supersedes the provisions of this section.

(d) Cruel, Inhuman, or Degrading Treatment or Punishment Defined.--In this section, the term ``cruel, inhuman, or degrading treatment or punishment'' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

The Amendment was agreed to overwhelmingly by the Senate (The vote was 90-9. Even Rick Santorum voted for it).

The whole bill passed both the House and the Senate and was signed by President George W. Bush, who included this section in the now infamous "signing statement" attached to the bill:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action. Finally, given the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005.

You may need to read that twice to get a better idea of what's in there.

But here's how Charlie Savage of the Boston Globe described what Bush did:

When President Bush last week signed the bill outlawing the torture of detainees, he quietly reserved the right to bypass the law under his powers as commander in chief.

After approving the bill last Friday, Bush issued a ''signing statement" -- an official document in which a president lays out his interpretation of a new law -- declaring that he will view the interrogation limits in the context of his broader powers to protect national security. This means Bush believes he can waive the restrictions, the White House and legal specialists said.

Though they try to reassure the skittish terrorist-enablers:

''We are not going to ignore this law," the official said, noting that Bush, when signing laws, routinely issues signing statements saying he will construe them consistent with his own constitutional authority. ''We consider it a valid statute. We consider ourselves bound by the prohibition on cruel, unusual, and degrading treatment."

But, the official said, a situation could arise in which Bush may have to waive the law's restrictions to carry out his responsibilities to protect national security. He cited as an example a ''ticking time bomb" scenario, in which a detainee is believed to have information that could prevent a planned terrorist attack.

Not that means much:

David Golove, a New York University law professor who specializes in executive power issues, said that the signing statement means that Bush believes he can still authorize harsh interrogation tactics when he sees fit.

''The signing statement is saying 'I will only comply with this law when I want to, and if something arises in the war on terrorism where I think it's important to torture or engage in cruel, inhuman, and degrading conduct, I have the authority to do so and nothing in this law is going to stop me,' " he said. ''They don't want to come out and say it directly because it doesn't sound very nice, but it's unmistakable to anyone who has been following what's going on."

Interestingly, something Savage writes in the very next paragraph also resonates this story:

Golove and other legal specialists compared the signing statement to Bush's decision, revealed last month, to bypass a 1978 law forbidding domestic wiretapping without a warrant. Bush authorized the National Security Agency to eavesdrop on Americans' international phone calls and e-mails without a court order starting after the terrorist attacks of Sept. 11, 2001.

Authorizing previously unauthorized NSA eavesdropping?  Ignoring laws banning the torture of human beings?  Anyone remember those offenses?  Jack?  Don't you?

And yet when the Obama Administration delays by a year the implementation of a section of the Affordable Healthcare Act, that's when the conservatives from Maine to Malibu judge as the time to point out the President's legal obligations under Article II.

Oh, the hypocrisy!

Oh, How Times Have Changed...

From yesterday's Tribune-Review (and let me just say HEY to the good folks at the Tribune-Review who've visited this blog - more than a hundred times since May 1st!):

It doesn't take a member of Mensa to figure out that the government of the United States is not limiting its collection of hundreds of millions of Americans' daily telephone records to those served by Verizon. There can be no doubt that the feds are collecting and analyzing what's known as “metadata” from just about everyone's carrier, have been for many years and will continue to do so. And, on its face, it's supposedly perfectly legal, per the Patriot Act (though an author of the act disputes that).

Funny how when this story broke:

The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.

The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren't suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.

In May of 2006 - a story accompanied by this picture (included so we know who we're talking about here):

Our friends on the Scaife Braintrust had this to say:

There's lots of heat and woefully little light regarding the news that the National Security Agency has been compiling a "massive database of Americans' phone calls," aided by three of the four-largest telecoms.

The NSA is collecting records of -- not listening to -- tens of millions of telephone calls made domestically. Running the calls through a database, the intent is to look for patterns that might signal terrorist planning activities.

But this is not illegal.

Not only does the recently renewed Patriot Act provide for such activity, there is case law that upholds it as constitutional (ironically in a case involving the media). [Italics in original.]

Indeed when Bush signed that reauthorization in 2006, he issued a signing statement that read (in part):

The executive branch shall construe the provisions of H.R. 3199 that call for furnishing information to entities outside the executive branch, such as sections 106A and 119, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties.

Yea, the funny thing about section 106A.  The that section of the law reads:

The Inspector General of the Department of Justice shall perform a comprehensive audit of the effectiveness and use, including any improper or illegal use, of the investigative authority provided to the Federal Bureau of Investigation under title V of the Foreign Intelligence Surveillance Act of 1978...

And the signing statement just said, "...yea, but only if we think so."

Funny how a change of party in the White House can color (such an interesting pun in this context, huh?) the braintrust's whole outlook on the NSA data-mining.

And for the record, I am not a fan of the NSA data-mining, the Patriot Act or any of the other distasteful (at the very least) anti-terror projects started by the Bush administration and continued by the Obama administration.

But Obama let Bush get away with war crimes - so what's a little harmless data-mining between friends?

Yes, They Tortured - And They're Getting Away With It

From yesterday's NYTimes:

A nonpartisan, independent review of interrogation and detention programs in the years after the Sept. 11, 2001, terrorist attacks concludes that “it is indisputable that the United States engaged in the practice of torture” and that the nation’s highest officials bore ultimate responsibility for it.

The sweeping, 577-page report says that while brutality has occurred in every American war, there never before had been “the kind of considered and detailed discussions that occurred after 9/11 directly involving a president and his top advisers on the wisdom, propriety and legality of inflicting pain and torment on some detainees in our custody.” The study, by an 11-member panel convened by the Constitution Project, a legal research and advocacy group, is to be released on Tuesday morning.

You can download the entire report here.

And from a NYTimes editorial today:

It is the fullest independent effort so far to assess the treatment of detainees at Guantánamo Bay, in Afghanistan and Iraq, and at the C.I.A.’s secret prisons. Those who sanctioned the use of brutal methods, like former Vice President Dick Cheney, will continue to defend their use. But the report’s authoritative conclusion that “the United States engaged in the practice of torture” is impossible to dismiss by a public that needs to know what was committed in the nation’s name.

But let's delve into the report itselve.  From it's Preface we learn that the panel that produced the report:

...is made up of former high-ranking officials with distinguished careers in the judiciary, Congress, the diplomatic service, law enforcement, the military, and other parts of the executive branch, as well as recognized experts in law, medicine and ethics. The group includes conservatives and liberals, Republicans and Democrats.

And that the report:

...is the product of more than two years of research, analysis and deliberation by the Task Force members and staff. It is based on a thorough examination of available public records and interviews with more than 100 people, including former detainees, military and intelligence officers, interrogators and policymakers.

And some of the findings. I want you to notice the lack of weasel words, qualifiers and obfuscational tactics. The statements are clear - as are the offenses they describe.

Finding 1:

U.S. forces, in many instances, used interrogation techniques on detainees that constitute torture. American personnel conducted an even larger number of interrogations that involved “cruel, inhuman, or degrading” treatment. Both categories of actions violate U.S. laws and international treaties. Such conduct was directly counter to values of the Constitution and our nation.

In a brief analysis of this that follows, the report states:

The Task Force believes there was no justification for the responsible government and military leaders to have allowed those lines to be crossed. Doing so damaged the standing of our nation, reduced our capacity to convey moral censure when necessary and potentially increased the danger to U.S. military personnel taken captive.

Democracy and torture cannot peacefully coexist in the same body politic.

Finding 2:

The nation’s most senior officials, through some of their actions and failures to act in the months and years immediately following the September 11 attacks, bear ultimate responsibility for allowing and contributing to the spread of illegal and improper interrogation techniques used by some U.S. personnel on detainees in several theaters. Responsibility also falls on other government officials and certain military leaders.

This would be, in my mind at least, George W. Bush, Dick Cheney, and so on.

When news of the torture came out, its apologists routinely declared that the "enhanced interrogation techniques" actually worked.  And so these techniques, while perhaps grotesque and incomprehensible actually saved lives.  The point from the apologists: "Sit down and STFU."  This, of course, leads me to

Finding 3:

There is no firm or persuasive evidence that the widespread use of harsh interrogation techniques by U.S. forces produced significant information of value. There is substantial evidence that much of the information adduced from the use of such techniques was not useful or reliable.

Then there's the clear rebuke of the Obama Administration in these next two findings.

Finding 20:

The Convention Against Torture, in addition to prohibiting all acts of torture, requires that states ensure in their “legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation.” The United States has not complied with this requirement, in large part because of the government’s repeated, successful invocation of the state-secrets privilege in lawsuits brought by torture victims.

Finding 21:

The Convention Against Torture requires each state party to “[c]riminalize all acts of torture, attempts to commit torture, or complicity or participation in torture,” and “proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.” The United States cannot be said to have complied with this requirement.

So far, there has been no such investigation into the Bush era crimes - as are required by law.

Conclusion: The Bush Administration tortured and the Obama Administration is letting them get away with it.

CIA Confirms...

Hey remember this?

It was (partially) about how the new movie "Zero Dark Thirty" purported to show how the torture led to the killing of Osama bin Laden and how it was all BS.

And now the CIA's confirmed it.

From the CIA's website:

Second, the film creates the strong impression that the enhanced interrogation techniques that were part of our former detention and interrogation program were the key to finding Bin Ladin. That impression is false. As we have said before, the truth is that multiple streams of intelligence led CIA analysts to conclude that Bin Ladin was hiding in Abbottabad. Some came from detainees subjected to enhanced techniques, but there were many other sources as well. And, importantly, whether enhanced interrogation techniques were the only timely and effective way to obtain information from those detainees, as the film suggests, is a matter of debate that cannot and never will be definitively resolved. [Emphasis added.]

And, of course, torture's illegal - whether it works or not (which it doesn't).