Torture

  • October 30, 2009

    Senate Majority Leader Harry Reid offered cutting remarks this week, criticizing unnamed senators who are obstructing President Obama's confirmation-level nominees. In that speech, Reid failed to specifically note the nomination of Dawn Johnsen to lead the Justice Department's Office of Legal Counsel (OLC), however, raising eyebrows at some progressive organizations calling for her confirmation.

    "Nearly 40 organizations have called on Reid to schedule a vote on Dawn Johnsen," reports The Hill this morning. "Several members of this coalition are frustrated that Johnsen's nomination has languished in the Senate for nearly eight months despite Democrats' control of 60 seats."

    Johnsen has drawn criticism from some chambers for her dedication to reproductive rights and for being among the first and most outspoken critics of the Bush torture program. Glenn Greenwald, characteristically tongue-in-cheek, frames the discussion another way: "Dawn Johnsen's belief in the rule of law disqualifies her from Senate confirmation."

  • October 22, 2009

    Musicians are joining the chorus of advocates for closing the detention facility at Guantanamo Bay. Trent Reznor of Nine Inch Nails and Tom Morello formerly of Rage Against the Machine are both protesting the reported use of their music to help break down Guantanamo detainees. 

    "Guantanamo is known around the world as one of the places where human beings have been tortured - from water boarding, to stripping, hooding and forcing detainees into humiliating sexual acts - playing music for 72 hours in a row at volumes just below that to shatter the eardrums," Morello said in a statement released by the National Campaign to Close Guantanamo (who just released their first adverstisement.) "The fact that music I helped create was used in crimes against humanity sickens me."

    In addition to a public relations campaign refocusing attention on the yet-to-be closed detention facility, the group has filed a Freedom of Information Act (FOIA) request for "all secret government records pertaining to how music was utilized as an interrogation device" against Guantanamo detainees.

  • September 1, 2009

    Breaking, from Scott Horton:

    Two newly-obtained documents show how American diplomats during the Bush administration worked tenaciously to incorporate what is commonly known as the Nuremberg Defense into a new international convention addressing enforced disappearances.

    The rejection of the notion that government agents could avoid liability for crimes by arguing that they were simply following orders had been a bedrock principle of the American government ever since shortly after the end of World War II, when that defense was employed during the Nuremberg war-crimes trials.

    ...

    "What the OLC memos did on a domestic basis, these documents show American diplomats attempting to do on the international stage," said Joanne Mariner, an analyst at Human Rights Watch with expertise on the U.S. extraordinary renditions program. 

    The documents are available here and here.

    Horton's analysis of the torture investigation recently announced by Attorney General Eric Holder is here.

    And on a peripherally related note, Andrew Sullivan just published this hard-hitting deconstruction of Marc Ambinder's Nazi/torture logic.

  • August 28, 2009

    More OLC Memos:  "The Office of Legal Counsel, responding to a Freedom of Information Act request, has now released a treasure trove of new memoranda discussing the Bush Administration's war on terror policies," writes Prof. Jack Balkin at Balkinization. "The highlights include memos by Jack Goldsmith telling the CIA not to do anymore waterboarding in May of 2004, and a memo by his successor at the OLC, Daniel Levin, telling the CIA they can go ahead and do it on August 6, 2004. There are also two memoranda from John Yoo arguing for the President's right to use military force at any time without congressional approval and offering CIA interrogators a good faith defense to torture."

    Dick Cheney is Mad:  From Christy Hardin Smith: "Why is Cheney so irate? Because bluster gets him column inches without having any real fear of direct questions of his own involvement. Why? Because that just isn't how things are done in the Beltway. No inconvenient truths that might rock your access boat."

    Torture Doesn't Work, So ...  Richard Haas, president of the Council of Foreign Relations, is being held to account for what he said during an interview on Morning Joe, including this line: "I really think putting this in legal channels as opposed to just the policy channels is something, just like the politics, we as a society, will regret. We need to look at all of our tools. We may reject some of these things. Let's say on balance they're not worth it. But other things we may say to do it given who we're up against."

    "I'm with Jack Bauer on this one."  That's the quote from Fox's Chris Wallace. Here's the clip

  • August 27, 2009
    Guest Post

    By Scott Horton. Horton is an adjunct professor at Columbia Law School and a contributing editor at Harper's Magazine, where he writes the No Comment blog.
    On Monday, Attorney General Eric Holder appointed John Durham, a career prosecutor from Connecticut, to undertake a preliminary examination of a group of cases in which CIA interrogators apparently exceeded even the scope of torture authorized by the now rescinded Justice Department memoranda to see if the circumstances warranted a more thorough criminal investigation. This decision constitutes an important, but very modest, step forward on the torture issue.

    Holder's decision is amply justified by a report prepared by the CIA's Inspector General, substantial parts of which were released Monday. Indeed, reading it we are bound to ask whether Holder is doing enough-whether he has not in fact unreasonably limited the scope of Durham's investigation. Here are a few points to consider.

    1. Torture was approved at the top and implemented with close supervision from senior administration actors. Policies of torture and official cruelty adopted by the administration incorporated new interrogation practices that were up to that point condemned by the United States as torture: this included waterboarding, hyperthermia and sleep deprivation, as now well documented. But the CIA report shows that experimentation was encouraged in a policy that a top officer, Cofer Black, described in congressional testimony with the words "take the gloves off," and CIA agents drew on a range of techniques that seem inspired not by legal guidance and prior practice, but by Hollywood and Fox television: a power drill was turned on, firearms brandished, mock executions staged, threats were made to kill, rape or abuse the children or parents of prisoners. In one case, an agent repeatedly applied pressure to the carotid artery, which feeds oxygenated blood to the brain, until a prisoner reached the point of collapse. In another, prisoners were "buttstroked" with a rifle, and given knee kicks (a procedure documented in the Oscar-winning film Taxi to the Dark Side, which resulted in death to an innocent young Afghan named Dilawar. Roughly half of the case study information remains blacked out, and context suggests that it contains incidents still more gruesome than those disclosed. The report shows CIA supervisors, lawyers and healthcare professionals (most likely psychologists) deeply involved in the process at almost every stage. The notion, therefore, that these were rogue agents off on a lark is absurd. Were the practices employed and documented by this report are practices the Bush White House wanted to see used? That's a pressing question that the CIA report raises without resolving.

    Attorney General Holder has drawn a fine distinction between what the OLC memos explicitly authorized and what was done in excess of the guidance given. It's not clear that this distinction is tenable. If Durham pursues any of these cases, he is almost certain to run into claims from those involved in the interrogation process that they did what they understood to have been authorized based on communications up the chain of command. They will say there was a perpetual green light. And the CIA report contains a great deal of support for this understanding. A good example comes in the practice of waterboarding. When the inspector general established that the limits imposed by the OLC memos had been exceeded, Attorney General John Ashcroft was consulted. According to the report, Ashcroft expressed the view that he was perfectly happy with whatever was done. That reaction is extremely telling about the attitude the Justice Department adopted towards the process, which appears more geared to facilitation than regulation. The record also supports the view that a large part of the communication between Bush officials and interrogators wasn't committed to writing, so it's a reasonable inference that the "edgier" approvals were conveyed orally.

    2. The introduction of torture and cruelty as official practices damaged the morale and reputation of the CIA. The major argument raised repeatedly by Directors Tenet and Hayden against disclosure of the CIA report is that disclosure would damage the morale and reputation of the CIA. But the report squarely addresses that issue. It shows that the torture and abuse practices themselves severely damaged morale inside the agency. In fact, the report was launched as a result of numerous complaints recorded by valued career CIA officers who explicitly said they felt the practices were a violation of criminal law and would likely result in prosecutions of agency personnel. The report shows that the number of persons raising this objection is substantial. And this is supported by the stream of ex-CIA agents who appeared on television the day of the disclosures: Tyler Drumheller, Jack Rice, Bob Baer, James Bamford and a number of others, all welcoming the appointment of a prosecutor and saying that enforcement measures were welcome. By contrast the number of CIA officers involved in and supporting the torture program is extremely limited, likely not more than two dozen figures, led by three veterans who remain in place: John O. Brennan, Steven Kappes and Michael Sulick.