Obama Administration to move forward in investigating the Bush Administration

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From the Los Angeles Times
U.S. to reveal alleged prison abuse photos

Defense Department officials worry that the Bush-era images will prompt a backlash in the Middle East.

By Peter Wallsten, Julian E. Barnes and Greg Miller

10:03 AM EDT, April 24, 2009

DEFENSE SECRETARY: Robert Gates, center, in a visit to Camp Lejeune said: “There is a certain inevitability, I believe, that much of this will eventually come out.” (Gerry Broome / Associated Press / April 23, 2009)

Reporting from Washington - The Obama administration agreed late Thursday to release dozens of photographs depicting alleged abuses at U.S. prisons in Iraq and Afghanistan during the Bush White House.

The decision will make public for the first time photos obtained in military investigations at facilities other than the Abu Ghraib prison in Iraq. Forty-four photos that the American Civil Liberties Union was seeking in a court case, plus a "substantial number" of other images, will be released by May 28.

The photos, examined by Air Force and Army criminal investigators, are apparently not as shocking as those taken at Abu Ghraib, which became a symbol of U.S. mistakes in Iraq. But Defense Department officials nevertheless are concerned that the release could incite another backlash in the Middle East.

Some of the photos show U.S. service members intimidating or threatening detainees by pointing weapons at them, according to officials who have seen them. Military officers have been court-martialed for threatening detainees at gunpoint.

Related links

• Interrogation tactics got the OK early on
• Obama open to inquiry on CIA tactics
• Military helped with CIA interrogation tactics, report says
  
• Red Cross calls CIA interrogations 'inhuman'
• Lawyers group targets ex-Bush administration official
• Prosecuting 'torture memo' authors called 'a real stretch'
  

"This will constitute visual proof that, unlike the Bush administration's claim, the abuse was not confined to Abu Ghraib and was not aberrational," said Amrit Singh, a lawyer for the ACLU, which reached the agreement as part of a long-running legal battle for documents related to anti-terrorism policies under President George W. Bush.

The decision comes as President Obama is trying to quell a drive to investigate Bush-era practices, which was spurred in part by his release last week of Justice Department memos detailing the Bush administration's legal justifications for harsh interrogations. But the photos and other possible disclosures stemming from the ACLU lawsuit threaten to stoke the controversy.

Other disclosures to be considered in the weeks ahead include transcripts of detainee interrogations, a CIA inspector general's report that has largely been kept secret, and background materials in a Justice Department investigation into prisoner abuse.

In each instance, Obama and his administration are being forced to decide whether to release the material entirely, disclose it with redactions, or follow the lead of the Bush administration and fight in court to keep it classified.

Last week, Obama opted to demand relatively few redactions in the Justice Department memos. The disclosures prompted Democratic lawmakers and liberal interest groups to demand a congressional investigation -- and possible prosecutions -- of officials in the Bush administration.

With Obama trying to push ambitious healthcare, tax and environmental legislation through Congress, an official said that the White House rejected the idea of appointing a Sept. 11 Commission-style review of Bush's anti-terrorism policies, fearing it could become a partisan distraction.

Now the release of photos and other materials threatens to heighten the political pressure on Obama as he seeks to balance competing constituencies.

The liberal base that elected him wants wide disclosure and an investigation. But pursuing that course risks alienating the intelligence and military communities that are crucial to Obama's success.

Moreover, he must deflect attacks from conservatives such as former Vice President Dick Cheney, who accuses Obama of putting the country's security at risk and would surely affix blame to the new president if another attack occurred. Cheney has asked that additional documents be released showing the successes of harsh interrogation tactics -- handing Obama another politically complicated decision.

The president has tried to walk a fine rhetorical line, heeding liberals' calls to release the interrogation memos but appearing to argue against further investigation or prosecution by saying "this is a time for reflection, not retribution."

Instead, he managed to anger both constituencies.

"My sense is the president was trying to please a lot of audiences at one time, and that over the last [week] he has totally failed to put the mind of the intelligence community at ease," said Mark Lowenthal, who was a senior advisor to George J. Tenet when Tenet was CIA director. "He is going to end up with a national clandestine service that will not be willing to do anything because they feel he will not be there for them when they need him."

Defense Secretary Robert M. Gates said Thursday in an appearance at Camp Lejeune, N.C., that he worried about a potential "backlash in the Middle East" from the release of the photos.

"There are a number of suits that we're dealing with for detainee photographs and so on," Gates said. "And so there is a certain inevitability, I believe, that much of this will eventually come out; much has already come out."

The Bush administration had opposed the release of the photos.

Late Thursday, Obama administration lawyers notified U.S. District Judge Alvin K. Hellerstein in New York that the government would release 44 photos plus a "substantial number" of other images.

The photos were taken between 2001 and 2006. All of them predate the 2006 revision of the Army Field Manual, which strengthened protections for detainees and prohibited all physical force from being used in interrogations.

In other potential disclosures, the White House has until May 13 to decide whether to release a 2004 CIA inspector general's report on the agency's interrogation program or file a brief with a federal appeals court explaining why it refuses to do so.

As part of the same lawsuit, the ACLU is seeking to force the government to release cables and other documents describing the contents of interrogation videotapes that the CIA destroyed.

"The issue is a test of the administration," said Jameel Jaffer, director of the National Security Project at the ACLU. "We were gratified they released the memos last week, but it's clear there's still a great deal of information about the CIA's torture program and legal justifications offered for it that remain secret."

The White House appears to be feeling its way through the controversy, and even allies on Capitol Hill are trying to determine where the president stands when it comes to reckoning with the legacies of the Bush anti-terrorism strategies.

Although Obama and his chief of staff, Rahm Emanuel, made strong public statements that appeared to discourage investigations of the Bush administration, Obama this week told reporters that the Justice Department would decide if anyone should be prosecuted for violating legal bans on torture -- and he suggested that Congress might create an independent panel to review the past.

Rep. Jerrold Nadler (D-N.Y.), a liberal member of the House Judiciary Committee, said that Obama was showing a "laudable willingness" to listen to his critics on the left, and that White House officials had told him they were still examining their broad approach to national security.

"In the next few weeks we're going to know more about where they're going," said Nadler, chairman of a subcommittee on constitutional issues.

For the moment, the administration's signals on whether to investigate the Bush record are causing some confusion.

House Speaker Nancy Pelosi (D-San Francisco) assessed the president's position this way: "As far as I know, it has not been definitively stated as to what the policy is."

peter.wallsten@latimes.com

julian.barnes@latimes.com

greg.miller@latimes.com

Peter Nicholas in the Washington bureau contributed to this report.

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Senior Bush figures could be prosecuted for torture, says Obama

President says use of waterboarding showed US had 'lost moral bearings' as Dick Cheney says CIA memos showed torture delivered 'good' intelligence

Ewan MacAskill and Robert Booth
guardian.co.uk, Tuesday 21 April 2009 11.30 BST

http://www.guardian.co.uk/world/2009...-torture-memos


Former US vice-president Dick Cheney has asked the CIA to declassify memos detailing 'success' of torture. Photograph: Kevin Wolf/AP

Senior members of the Bush administration who approved the use of waterboarding and other harsh interrogation measures could face prosecution, President Obama disclosed today .

He said the use of torture reflected America "losing our moral bearings".

He said his attorney general, Eric Holder, was conducting an investigation and the decision rested with him. Obama last week ruled out prosecution of CIA agents who carried out the interrogation of suspected al-Qaida members at Guantánamo and secret prisons around the world.

But for the first time today he opened up the possibility that those in the administration who gave the go-ahead for the use of waterboarding could be prosecuted.

The revelation will enrage senior Bush administration figures such as the former vice-president Dick Cheney.

The Obama administration views the use of waterboarding as torture, while Cheney claims it is not.

Obama, taking questions from the press during a visit by King Abdullah of Jordan, reiterated he did not believe in prosecution of those CIA agents who carried out the interrogations within the guidelines set down for them. But "with respect to shoe who formulated'' the policies, "that is going to be more of a decision for the attorney general within the parameters of various laws". He added: "I don't want to prejudge that."

Ewen MacAskill on Obama's reluctance to prosecute torturers Link to this audio
He also opened the way for a Congressional inquiry into the issue.

Meanwhile the former US vice-president Dick Cheney has called for the disclosure of CIA memos which reveal the "success" of torture techniques, including waterboarding, used on al-Qaida suspects under the Bush administration.

Cheney said that, according to secret documents he has seen, the interrogation techniques, which the Obama administration now accepts amounted to torture, delivered "good" intelligence. He hinted that it had significant consequences for US security.

Cheney was speaking out in response to the release by Barack Obama of four Bush administration memos detailing the agency's interrogation methods used against al-Qaida suspects.

"One of the things that I find a little bit disturbing about this recent disclosure is they put out the legal memos, the memos that the CIA got from the Office of Legal Counsel, but they didn't put out the memos that showed the success of the effort," Cheney said in an appearance on Fox News.

"I haven't talked about it, but I know specifically of reports that I read, that I saw, that lay out what we learned through the interrogation process and what the consequences were for the country.

"I've now formally asked the CIA to take steps to declassify those memos so the American people have a chance to see what we obtained and what we learned and how good the intelligence was."

Obama yesterday visited CIA headquarters to defend the publication of the internal documents. The row gathered further momentum yesterday when it emerged that one detainee, Khalid Sheikh Mohammed, had been subjected to waterboarding 183 times and another, Abu Zubaydah, 83 times.

Obama is keen to try to put the row behind him, reluctant to see prosecutions that could be politically divisive and distract attention from his heavy domestic and foreign agenda.

In a speech to about 1,000 staff aimed at restoring CIA morale, Obama, who promised last week that CIA operatives would not be prosecuted, reiterated that he would stand by them.

"Don't be discouraged by what's happened in the last few weeks," Obama said. "Don't be discouraged that we have to acknowledge potentially we've made some mistakes. That's how we learn."

At a private meeting with 50 rank-and-file CIA members at their headquarters in Langley, Virginia, before his speech, Obama heard "understandable anxiety and concern" from agents fearful of prosecution.

The CIA's director during the Bush administration, Michael Hayden, who criticised the release of the memos, warned on Sunday that agents could be vulnerable because of the memos, facing civil lawsuits or congressional inquiries.

Sensitive details were blacked out in the memos seen by most of the media on Thursday but over the weekend Marcy Wheeler, of the Emptywheel blog, found a copy in which crucial details were not masked.

That copy showed that Mohammed had been subjected to waterboarding – which simulates drowning – 183 times in March 2003. He had been arrested in Pakistan at the start of that month. Abu Zubaydah, a Saudi captured in Pakistan in March 2002, was subjected to waterboarding 83 times in August 2002.

Mohammed had admitted to involvement in terrorist actions before his capture but, after being interrogated, confessed to a list of incidents and plots that included the 1993 attack on the World Trade Centre in New York, as well as a plot to attack Heathrow, Big Ben and Canary Wharf, the beheading of the US journalist Daniel Pearl, and the Bali bombing.

Abu Zubaydah denied involvement with al-Qaida.

Obama, defending himself against those in the CIA who argued that he should not have released the memos, said legally he had no grounds for blocking a freedom of information request from the US human rights group, the American Civil Liberties Union.

"I acted primarily because of the exceptional circumstances that surrounded these memos, particularly the fact that so much of the information was public," Obama said.

Standing in front of a wall with 89 stars, each depicting an officer killed in action, Obama praised the CIA as the "tip of the spear" in protecting the US from its enemies.

Obama said he understood that intelligence officials must sometimes feel that they are working with one hand tied behind their backs. But, rebutting Hayden, he said: "What makes the United States special and what makes you special is precisely the fact that we are willing to uphold our values and our ideals even when it's hard, not just when it's easy, even when we are afraid and under threat, not just when its expedient to do so.

"So yes, you've got a harder job and so do I, and that's OK. And over the long term, that is why I believe we will defeat our enemies, because we're on the better side of history."

Hayden had argued that the harsher interrogation techniques had provided valuable information and said that the techniques did not amount to torture.

Human rights lawyers question the credibility of the confessions because they were obtained under duress.

The White House press secretary Robert Gibbs, when asked yesterday why Bush administration lawyers could not be prosecuted, said: "The president is focusing on looking forward."

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I heard a rumor last summer if the Dem got back power this inqury was designed to distract and disembowel the Right before the 2010 elections and re-direct the WoT.

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Why Is Obama So Focused on Apologies?

This is a rush transcript from "Hannity," April 24, 2009. This copy may not be in its final form and may be updated.

SEAN HANNITY, HOST: The Obama administration is about to release graphic photos of CIA interrogations after releasing the CIA memos to satisfy their own political base. Now the Obama administration is not even fighting to keep those photos out of the public eye after the Bush administration did so for four years.

Instead they are just going to hand them over, and that is our headline this Friday night, "Hurting America First." Now we used call it "Blame America First," but we are beyond the damaging left-wing rhetoric, and now the actions of this administration and other liberals are doing harm to this nation's interest.

Now ABC News reports tonight that the release of the aforementioned photos are provoking a backlash by CIA operatives who are no longer convinced that this country will provide them cover for their clandestine activities.

Now didn't Democrats spend years complaining about something similar when it came to Valerie Plame and the interrogation memos that we have been discussing all week? Well that haven't helped their cause either, revealing to our enemies just how far we will go to learn vital information, and by extension, just how long they have to hold out to prevent us from knowing what we need to know to protect this country.

• Video: Watch Sean's interview

Now this is a president who spent his entire first trip abroad talking down the United States of America, calling us arrogant and apologizing to every European politician that he could find. This is no longer blaming America. This is hurting America.

Indeed, it is injuring America, and the leader of the free world, he needs to know better, and joining me tonight is former presidential candidate Mike Huckabee. He's also the author of "Do the Right Thing," and of course the host of his own show Saturday and Sunday nights right here on the FOX News Channel — what's the name of that show? "Huckabee."

MIKE HUCKABEE, "DO THE RIGHT THING" AUTHOR: It's called "Huckabee". It's real simple. It's...
(LAUGHTER)

HANNITY: Good to see you, Governor.

HUCKABEE: Great to see you, Sean.

HANNITY: Thank you for being with us.
How damaging not only — we have revealed to the enemy the techniques that we have been using, but now they're going to take it a step further with the photos. How damaging is that?

HUCKABEE: Very damaging, especially if you ever think about wanting to recruit someone to be in the CIA. How would you like to get into a clandestine organization that is not clandestine anymore.

HANNITY: Great point.

HUCKABEE: When do you know that what you have done under the orders of your government is going to be released to the public and your home address published, and what does that do for your kids?
We've always protected those people who have served in these very delicate positions of secrecy and intelligence gathering, and when we out them, we really put our lives at risk, and we put our capacity to gather intelligence in great harm.

HANNITY: Well, so this — so my analysis is right. I'm saying that Barack Obama and the administration is hurting our nation's defenses.

HUCKABEE: I think that's a fair assessment, Sean. It is hurting us. It's hurting us first on the point of intelligence gathering. It's going to be much more difficult for us to get the intelligence, we're now telling them all of our techniques, we're letting the other side know exactly what we do and how we do it.

The most dangerous thing that we did even when we disclosed all the details of the interrogation techniques, we basically told them that we really weren't hurting them. It was like a carnival ride, and I'm going to get YouTube'd on this one, because I know they're going to come after me.

But the point is, for example, it wasn't that we were actually go to drown someone, but it was a simulation of it, and for that, there was, in fact, some information that came forth.

HANNITY: And they can use that information. You know they know how far we're going to go, and now they know we're not going to go that far at all, so that, of course, would be used in their training.

One of the things that amazes me is we had four former CIA directors including Barack Obama's own CIA director saying don't do this. You know Michael Hayden.

HUCKABEE: Yes.

HANNITY: Don't do this.

HUCKABEE: Yes.

HANNITY: And yet they did it anyway. Why do you think they did so? Political reasons, they want to make the Bush administration look bad?

HUCKABEE: You've hit it. This is an administration, the Obama administration, that seems obsessed with the past. For an administration whose candidate ran on let's get quit looking behind us, and look ahead of us, he cannot get over the fact that George Bush preceded him in the presidency.

You know for — here's what I don't understand. MoveOn.org needs to move on.

HANNITY: Yes.

HUCKABEE: This is — no longer should they be called Move On, they need
to be called CampOut.org, because they are camping out over the past eight years.

HANNITY: All right. The evidence that this political — let me go through two specific examples. The first one is, Barack Obama himself, his propagandas — by the way, I can't believe he made 100 days — Gibbs, and Rahmbo "dead fish" Emmanuel.

All right. All three of them said they weren't going to pursue this. It wasn't on our best interest. All of the sudden they make a 180 degree turn after their political base is calling for this. So that means that what? They're beholden to them? They're not going to put what's in the best interest of the country over their political, you know, benefit?

HUCKABEE: You can't play politics with national security and especially with intelligence secrets. And I think it's now interesting that we're discovering that in 2002, Nancy Pelosi and other Democratic leaders were fully briefed on all the way down to the details of waterboarding, and they were perfectly OK with it in 2002.

So if we're going to have a criminal investigation, let's make sure that we have some lady size handcuffs to go along with the ones they're going to put on the Bush people.

HANNITY: But that's what I want to know is the second part of the politicizing this, because we now — Porter Goss has come out. George Tenet has come out. And they said that in spite of Nancy Pelosi first denying that she knew that these specific techniques were going to be used, even she changed her position and said well, I couldn't stop it, so evidence that she in fact may have lied.

If Nancy Pelosi lied, and she knew about it, and she denied it and lied to the American people, should she be removed as House speaker?

HUCKABEE: Well, that would be, I guess, a job for the Democrats who elect her to be House speaker, but I don't think she should have ever have been put there from the first place.

HANNITY: Yes, well — but seriously, if she's going to manipulate and lie to the American people...

HUCKABEE: But she certainly has lost her credibility.

HANNITY: We know what they went through. They literally mentioned this, and...

HUCKABEE: Yes.

HANNITY: According to every report, Porter Goss was the latest, and George Tenet said the same thing, not only was there not opposition, they were wondering if whether or not we were going far enough at the time in a post- 9/11 environment.

HUCKABEE: I think it's important to note that George Tenet was not a Bush administration appointee, he was a holdover, but he was a Clinton appointee. George Tenet was not exactly a fan of all the things that the Bush administration did, but when it comes to this issue, all things except national security become the interest of these former directors, and even the current one, Leon Panetta...

HANNITY: Yes.

HUCKABEE: ... is not happy with this whole process.

HANNITY: All right. Let's look at the big picture. You know, apologizing for America tour, calling America arrogant to our enemies, bowing before the Saudi king, embracing the Castro brothers, Hugo Chavez, Daniel Ortega, cutting missile defense at a time North Korea is firing missiles, meeting with Ahmadinejad who denied again this week the Holocaust.
What does this say about Barack Obama and his mind-set and the principles that guide his decision making?

HUCKABEE: I think it's one thing for America to say look, we want to have conversations with anyone if we feel like that they can be productive, but we're talking about negotiations and even acknowledgements to people who don't deserve that level of respect from the president.

It's one thing to send a third tier emissary to let them kind of understand, we may talk to you but you're not talking to the big guy.

HANNITY: Yes.

HUCKABEE: Because you haven't earned that. But here's what really was disturbing. The relationship with Cuba. Raul Castro is a murderer. We have every reason to believe that he was personally responsible in the order of the shooting down of the Christian brothers civilian airplane that was taking relief to Cubans, and there's never been an accountability.

There are political prisoners and journalists in jail in Cuba. They've never had free elections, and as soon as Raul Castro goes out and says everything is on the table, his brother releases a statement the next day and says hold that thought.

HANNITY: Yes. Let me ask a final question here. If the 9/11 Commission report was right that it's not a matter of if, but it's a matter of when, and we're doing — taking all of these steps to send signals to the world that America is lowering its defenses, to what extent, God forbid, and I mean this sincerely, if lowering our defenses results in an attack, to what extent is Barack Obama responsible for the decisions he's making, you know, in this last month? Is he responsible?

HUCKABEE: There's going to be a lot of accountability, and particularly if the reason that we didn't know about the attack coming or didn't do something about it was because we had completely emasculated our intelligence gathering operation.

Sean, ask yourself. What do you the morale would be in Langley, Virginia today among the CIA people? I'm imagining they're going home and saying honey, I think it may be time to take retirement.

HANNITY: Governor, we'll watch you this weekend. Thanks for being with us. Appreciate it.

HUCKABEE: Thanks a lot, Sean.

Watch "Hannity" weeknights at 9 p.m. ET!

Content and Programming Copyright 2009 FOX News Network, LLC. ALL RIGHTS RESERVED.

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From Jim Acosta
CNN's American Morning

White House could release more memos on treatment of detainees

WASHINGTON (CNN) -- As President Obama approaches day 100 of his administration, some in Washington caution that the torture tug-of-war could be a costly distraction.


Leg restraints await detainees at Guantanamo Bay in this 2006 photo.

Earlier this month, the Obama administration released four Bush-era memos detailing "enhanced interrogations" of suspected al Qaeda members. Now, the White House is reviewing former Vice President Dick Cheney's request to make more memos public.

Two weeks before Obama released any memos, Cheney submitted a request to the National Archives calling for the release of other documents.

He says that what he requested will prove that the Bush interrogation tactics -- which critics have called a torture program -- worked.

"I haven't talked about it, but I know specifically of reports that I read, that I saw, that lay out what we learned through the interrogation process and what the consequences were for the country," Cheney said in an interview with Fox News last week.

The White House is signaling that not only is it considering honoring Cheney's request, it may go even further.

"I think the president, as you know, is a big believer in transparency," White House press secretary Robert Gibbs said Sunday on NBC's "Meet the Press." "I think one of the things that will have to be examined is whether there are additional memos that have to be released that give a broader picture of what's gone on in enhanced interrogation techniques."

The almost daily revelations are dividing Democrats between those calling for full disclosure and those urging caution.

"We don't just turn the page without reading it. We want to make sure what the mistakes were so that the Obama administration doesn't make these mistakes," Sen. Patrick Leahy, D-Vermont. said Sunday.

But Sen. Dianne Feinstein, D-California, warned Sunday against moving to quickly.

"We need to find these things out, and we need to do it in a way that's calm and deliberative and professional, because I think all of this, on the front burner, before the public, does harm our intelligence gathering, it does harm America's position in the world," she said on CNN's "State of the Union."

Across the aisle, Republicans are insisting the Justice Department drop any investigation of Bush administration officials who authorized harsh interrogations.

"I think that would be a stab in the back. I think he has already demoralized the CIA, put them in a CYA mode," Sen. Kit Bond, R-Missouri, said Sunday on Fox News.

Arizona Sen. John McCain, the former Republican presidential candidate, said prosecuting those who gave legal advice is wrong.

"I don't think those memos should have been released, but the fundamental point now is whether to prosecute people who gave the president, in my view, legitimate advice, even though it was wrong," he said. "We should not be prosecuting people who gave legal advice. It's wrong to do that to them, and it sets a terrible precedent for the future."

Rep. Pete Hoekstra of Michigan, the top Republican on the House Intelligence Committee, and House Minority Leader John Boehner of Ohio are calling on the White House to release a list of who was briefed about the interrogation programs.

"Congress and the American people deserve a full and complete set of facts about what information was yielded by CIA's interrogation program, and they deserve to know which of their representatives in Congress were briefed about these techniques and the extent of those briefings," Boehner said in a statement Monday.

"To date, the administration has fallen short in providing this information. ... The American people have been provided an incomplete picture of exactly what intelligence was made available by the interrogation program," he said.

But Connecticut Sen. Joe Lieberman, a Democrat-turned-independent, said the whole debate over the memos is "moot."

"What do we gain, first, by releasing the memos; but, secondly, what do we gain from indicting lawyers for their opinions, if that is a possibility here? ... It will poison the water here in Washington. It will achieve nothing. It will make it harder for President Obama to do some of the big things he wants to do for the country," he said.

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Spanish court opens investigation of Guantánamo torture allegations

• Allegations include 'sexual abuse' and 'beating'
• Eric Holder urges European countries to take detainees

• Giles Tremlett in Madrid and agencies
• guardian.co.uk, Wednesday 29 April 2009 18.50 BST
• Article history

A court in Spain has today opened an 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.

Judge Baltasar Garzón, an investigating magistrate at the National Court in Madrid, said he would investigate allegations made by four detainees who were held at the centre and later released without charges, according to a court document quoted by the Spanish press.

The torture allegations include "sexual abuse", "beating" and the throwing of fluids into prisoners' eyes.

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.

Holder said in Germany that while the US created the Guantánamo site, closing it is a shared responsibility for the US and its allies.

"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.

The Spanish investigation was sparked by torture complaints from former Guantánamo detainees Hamed Abderrahman Ahmed, Lahcen Ikassrien, Jamiel Abdul Latif al Banna and Omar Deghayes.

The four men, who had terrorism allegations made against them in Spain dropped by the courts, told the judge that they had been tortured "under the authority of personnel from the US Army".

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.

He also pointed to the possible use of the Bagram military base in Afghanistan as a torture centre involved in "a coordinated system to perpetrate numerous torture crimes against people deprived of their liberty in Guantánamo and other prisons."

There was evidence that the torture allegations could bring criminal proceedings against "the different structures [involved in] the execution, command, design and authorisation of this systematic plan of torture".

Garzón's investigation is parallel to a separate case in which a fellow magistrate, Eloy Velasco, must decide whether the National Court can pursue a criminal investigation against six senior US officials, including former attorney general Alberto Gonzales, for allegedly approving the use of torture.

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.

He also tried to extradite former Chilean dictator Augusto Pinochet from Britain on charges of torture and genocide.

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Andrew McCarthy's Letter to Attorney General Holder
May 1, 2009

By email (to the Counterterrorism Division) and by regular mail:

The Honorable Eric H. Holder, Jr.
Attorney General of the United States
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530-0001

Dear Attorney General Holder:

This letter is respectfully submitted to inform you that I must decline the invitation to participate in the May 4 roundtable meeting the President’s Task Force on Detention Policy is convening with current and former prosecutors involved in international terrorism cases. An invitation was extended to me by trial lawyers from the Counterterrorism Section, who are members of the Task Force, which you are leading.

The invitation email (of April 14) indicates that the meeting is part of an ongoing effort to identify lawful policies on the detention and disposition of alien enemy combatants—or what the Department now calls “individuals captured or apprehended in connection with armed conflicts and counterterrorism operations.” I admire the lawyers of the Counterterrorism Division, and I do not question their good faith. Nevertheless, it is quite clear—most recently, from your provocative remarks on Wednesday in Germany—that the Obama administration has already settled on a policy of releasing trained jihadists (including releasing some of them into the United States). Whatever the good intentions of the organizers, the meeting will obviously be used by the administration to claim that its policy was arrived at in consultation with current and former government officials experienced in terrorism cases and national security issues. I deeply disagree with this policy, which I believe is a violation of federal law and a betrayal of the president’s first obligation to protect the American people. Under the circumstances, I think the better course is to register my dissent, rather than be used as a prop.

Moreover, in light of public statements by both you and the President, it is dismayingly clear that, under your leadership, the Justice Department takes the position that a lawyer who in good faith offers legal advice to government policy makers—like the government lawyers who offered good faith advice on interrogation policy—may be subject to investigation and prosecution for the content of that advice, in addition to empty but professionally damaging accusations of ethical misconduct. Given that stance, any prudent lawyer would have to hesitate before offering advice to the government.

Beyond that, as elucidated in my writing (including my proposal for a new national security court, which I understand the Task Force has perused), I believe alien enemy combatants should be detained at Guantanamo Bay (or a facility like it) until the conclusion of hostilities. This national defense measure is deeply rooted in the venerable laws of war and was reaffirmed by the Supreme Court in the 2004 Hamdi case. Yet, as recently as Wednesday, you asserted that, in your considered judgment, such notions violate America’s “commitment to the rule of law.” Indeed, you elaborated, “Nothing symbolizes our [adminstration’s] new course more than our decision to close the prison at Guantanamo Bay…. President Obama believes, and I strongly agree, that Guantanamo has come to represent a time and an approach that we want to put behind us: a disregard for our centuries-long respect for the rule of law[.]” (Emphasis added.)

Given your policy of conducting ruinous criminal and ethics investigations of lawyers over the advice they offer the government, and your specific position that the wartime detention I would endorse is tantamount to a violation of law, it makes little sense for me to attend the Task Force meeting. After all, my choice would be to remain silent or risk jeopardizing myself.

For what it may be worth, I will say this much. For eight years, we have had a robust debate in the United States about how to handle alien terrorists captured during a defensive war authorized by Congress after nearly 3000 of our fellow Americans were annihilated. Essentially, there have been two camps. One calls for prosecution in the civilian criminal justice system, the strategy used throughout the 1990s. The other calls for a military justice approach of combatant detention and war-crimes prosecutions by military commission. Because each theory has its downsides, many commentators, myself included, have proposed a third way: a hybrid system, designed for the realities of modern international terrorism—a new system that would address the needs to protect our classified defense secrets and to assure Americans, as well as our allies, that we are detaining the right people.

There are differences in these various proposals. But their proponents, and adherents to both the military and civilian justice approaches, have all agreed on at least one thing: Foreign terrorists trained to execute mass-murder attacks cannot simply be released while the war ensues and Americans are still being targeted. We have already released too many jihadists who, as night follows day, have resumed plotting to kill Americans. Indeed, according to recent reports, a released Guantanamodetainee is now leading Taliban combat operations in Afghanistan, where President Obama has just sent additional American forces.

The Obama campaign smeared Guantanamo Bay as a human rights blight. Consistent with that hyperbolic rhetoric, the President began his administration by promising to close the detention camp within a year. The President did this even though he and you (a) agree Gitmo is a top-flight prison facility, (b) acknowledge that our nation is still at war, and (c) concede that many Gitmo detainees are extremely dangerous terrorists who cannot be tried under civilian court rules. Patently, the commitment to close Guantanamo Bay within a year was made without a plan for what to do with these detainees who cannot be tried. Consequently, the Detention Policy Task Force is not an effort to arrive at the best policy. It is an effort to justify a bad policy that has already been adopted: to wit, the Obama administration policy to release trained terrorists outright if that’s what it takes to close Gitmo by January.

Obviously, I am powerless to stop the administration from releasing top al Qaeda operatives who planned mass-murder attacks against American cities—like Binyam Mohammed (the accomplice of “Dirty Bomber” Jose Padilla) whom the administration recently transferred to Britain, where he is now at liberty and living on public assistance. I am similarly powerless to stop the administration from admitting into the United States such alien jihadists as the 17 remaining Uighur detainees. According to National Intelligence Director Dennis Blair, the Uighurs will apparently live freely, on American taxpayer assistance, despite the facts that they are affiliated with a terrorist organization and have received terrorist paramilitary training. Under federal immigration law (the 2005 REAL ID Act), those facts render them excludable from theUnited States. The Uighurs’ impending release is thus a remarkable development given the Obama administration’s propensity to deride its predecessor’s purported insensitivity to the rule of law.

I am, in addition, powerless to stop the President, as he takes these reckless steps, from touting his Detention Policy Task Force as a demonstration of his national security seriousness. But I can decline to participate in the charade.

Finally, let me repeat that I respect and admire the dedication of Justice Department lawyers, whom I have tirelessly defended since I retired in 2003 as a chief assistant U.S. attorney in the Southern District of New York. It was a unique honor to serve for nearly twenty years as a federal prosecutor, under administrations of both parties. It was as proud a day as I have ever had when the trial team I led was awarded the Attorney General’s Exceptional Service Award in 1996, after we secured the convictions of Sheikh Omar Abdel Rahman and his underlings for waging a terrorist war against the United States. I particularly appreciated receiving the award from Attorney General Reno—as I recounted in Willful Blindness, my book about the case, without her steadfastness against opposition from short-sighted government officials who wanted to release him, the “blind sheikh” would never have been indicted, much less convicted and so deservedly sentenced to life-imprisonment. In any event, I’ve always believed defending our nation is a duty of citizenship, not ideology. Thus, my conservative political views aside, I’ve made myself available to liberal and conservative groups, to Democrats and Republicans, who’ve thought tapping my experience would be beneficial. It pains me to decline your invitation, but the attendant circumstances leave no other option.

Very truly yours,

/S/

Andrew C. McCarthy

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CIA Says Pelosi Was Briefed on Use of 'Enhanced Interrogations'

By Paul Kane


Intelligence officials released documents this evening saying that House Speaker Nancy Pelosi (D-Calif.) was briefed in September 2002 about the use of harsh interrogation tactics against al-Qaeda prisoners, seemingly contradicting her repeated statements over the past 18 months that she was never told that these techniques were actually being used.

In a 10-page memo outlining an almost seven-year history of classified briefings, intelligence officials said that Pelosi and then-Rep. Porter Goss (R-Fla.) were the first two members of Congress ever briefed on the interrogation tactics. Then the ranking member and chairman of the House Intelligence Committee, respectively, Pelosi and Goss were briefed Sept. 4, 2002, one week before the first anniversary of the 9/11 terrorist attacks.

The memo, issued by the Director of National Intelligence and the Central Intelligence Agency to Capitol Hill, notes the Pelosi-Goss briefing covered "EITs including the use of EITs on Abu Zubaydah." EIT is an acronym for enhanced interrogation technique. Zubaydah was one of the earliest valuable al-Qaeda members captured and the first to have the controversial tactic known as water boarding used against him.

The issue of what Pelosi knew and when she knew it has become a matter of heated debate on Capitol Hill. Republicans have accused her of knowing for many years precisely the techniques CIA agents were using in interrogations, and only protesting the tactics when they became public and liberal antiwar activists protested.

In a carefully worded statement, Pelosi's office said today that she had never been briefed about the use of waterboarding, only that it had been approved by Bush administration lawyers as a legal technique to use in interrogations.

"As this document shows, the Speaker was briefed only once, in September 2002. The briefers described these techniques, said they were legal, but said that waterboarding had not yet been used," said Brendan Daly, Pelosi's spokesman.

Pelosi's statement did not address whether she was informed that other harsh techniques were already in use during the Zubaydah interrogations.

In December 2007 the Washington Post reported that leaders of the House and Senate intelligence committees had been briefed in the fall of 2002 about waterboarding -- which simulates drowning -- and other techniques, and that no congressional leaders protested its use. At the time Pelosi said she was not told that waterboarding was being used, a position she stood by repeatedly last month when the Bush-era Justice Department legal documents justifying the interrogation tactics were released by Attorney General Eric Holder.

The new memo shows that intelligence officials were willing to share the information about waterboarding with only a sharply closed group of people. Three years after the initial Pelosi-Goss briefing, Bush officials still limited interrogation technique briefings to just the chairman and ranking member of the House and Senate intelligence committees, the so-called Gang of Four in the intelligence world.

In October 2005, CIA officials began briefing other congressional leaders with oversight of the intelligence community, including top appropriators who provided the agency its annual funding. Sen. John McCain (R-Ariz.), a prisoner-of-war in Vietnam and an opponent of torture techniques, was also read into the program at that time even though he did not hold a special committee position overseeing the intelligence community.

A bipartisan collection of lawmakers have criticized the practice of limiting information to just the "Gang of Four", who were expressly forbidden from talking about the information from other colleagues, including fellow members of the intelligence committees. Pelosi and others are considering reforms that would assure a more open process for all committee members.

By 44 Editor | May 7, 2009; 7:29 PM ET

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House rejects probe into Pelosi CIA claims



AP – House Speaker Nancy Pelosi of Calif. is seen on Capitol Hill in Washington, Thursday, May 21, 2009, during …

By ANNE FLAHERTY, Associated Press Writer Anne Flaherty, Associated Press Writer – 40 mins ago

WASHINGTON – House Democrats on Thursday defeated a Republican push to investigate House Speaker Nancy Pelosi's assertion that the CIA misled her in 2002 about whether waterboarding had been used against terrorism suspects.

Republicans Ron Paul of Texas and Walter Jones of North Carolina joined Democrats in voting 252-172 to block the measure, which would have created a bipartisan congressional panel. Rep. Rob Bishop, R-Utah, sponsored the resolution.

"This is partisan politics and an attempt by the Republicans to distract from the real issue of creating jobs and making progress on health care, energy and education," said Pelosi spokesman Nadeam Elshami.

Pelosi was not present at the time of the vote. Republicans called for it while she was giving a commencement speech at Johns Hopkins University in Baltimore.

Earlier this month, Pelosi told reporters that she had not been told that waterboarding had been used against terrorism suspects, even though it had been. President Barack Obama and human rights groups have said waterboarding, which simulates drowning, is torture.

"To have this charge out there and not have it resolved I think is damaging to our intelligence efforts, and certainly will have a chilling effect on our intelligence professionals around the world," said House Republican Leader John Boehner of Ohio.

Former Vice President Dick Cheney also stepped into the debate.

In a speech at the conservative American Enterprise Institute, Cheney said Pelosi and other lawmakers had been briefed on the interrogation techniques on "numerous occasions."

"In my long experience in Washington, few matters have inspired so much contrived indignation and phony moralizing as the interrogation methods applied to a few captured terrorists," Cheney said.

Pelosi has asked the CIA to declassify information supporting her claims.

The CIA has sent lawmakers its notes and memos on 40 congressional briefings on the interrogation techniques. But that document has been found to include several errors.

CIA Director Leon Panetta acknowledged in a May 6 letter to House Intelligence Committee Chairman Silvestre Reyes, D-Texas, that the CIA's list may not be completely accurate.

"In the end, you and the committee will have to determine whether this information is an accurate summary of what actually happened," Panetta wrote.

Democrats are pointing out that Republicans also have accused the CIA of misleading them on intelligence matters. Boehner himself called into question the soundness of the intelligence community when it determined in 2007 that Tehran had halted its nuclear weapons program.

Boehner told reporters on Thursday that it was an unfair comparison because he never accused the men and women of the intelligence community of misleading Congress.

House Democratic Leader Steny Hoyer, D-Md., told reporters in a separate Capitol Hill news conference that he supports creation of a panel to investigate the nation's interrogation policy. What the CIA told Congress and when could be part of that, he said.

But the Republican-drafted proposal was a partisan jab meant to distract from the question of whether the Bush administration tortured war prisoners, he said. Hoyer called the resolution another example of Republicans engaging in "politics of personal destruction."

Boehner defended the harsh interrogations.

"I don't believe the enhanced interrogation techniques were wrong," he said.

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US court allows torture lawsuit against Rumsfeld

By REUTERS

08/09/2011 02:57



Two American men seek damages from Rumsfeld, others for developing, authorizing, using harsh interrogation techniques against them in Iraq.

WASHINGTON - Two American men can go ahead with a civil lawsuit against former Defense Secretary Donald Rumsfeld, a US appeals court said on Monday, over allegations they were tortured in Iraq at the hands of the US military.

Donald Vance and Nathan Ertel sued in federal court seeking damages from Rumsfeld and unnamed others over their roles in developing, authorizing and using harsh interrogation techniques in Iraq against them, thus violating their rights.

RELATED:
Rumsfeld: Pollard should not be granted early release

The US Court of Appeals for the Seventh Circuit, based in Chicago, upheld a decision by a federal judge in Illinois to allow the lawsuit to proceed despite efforts by the former Bush and current Obama administration to get the case dismissed.

The two men worked for a private security company in Iraq in 2006 and said they became concerned the firm was engaging in illegal bribery or other corruption activities. They notified US authorities and began cooperating with them.

In early 2006, they were taken into custody by US military forces and eventually taken to Camp Cropper near Baghdad's airport. Vance and Ertel claimed they were subjected to harsh interrogations and physical and emotional abuse.

Months later they said they were unceremoniously dropped at the airport and never charged with a crime. They sued, seeking unspecified damages and saying their constitutional rights had been violated and US officials knew they were innocent.

The appeals court ruled that while it may have been unusual for Rumsfeld to be personally responsible for the treatment of detainees, the two men had sufficiently argued that the decisions were made at the highest levels of government.

"We agree with the district court that the plaintiffs have alleged sufficient facts to show that Secretary Rumsfeld personally established the relevant policies that caused the alleged violations of their constitutional rights during detention," the court ruled in a split decision.

The three-judge panel voted 2-1 to affirm the lower court ruling. Judge Daniel Manion dissented, saying Congress has yet to decide whether courts should have a role in deciding whether such claims against the US military can be pursued.

A lawyer representing Rumsfeld said the appeals court decision was a blow to the US military.

"Having judges second guess the decisions made by the armed forces halfway around the world is no way to wage a war," attorney David Rivkin said in a statement.

"It saps the effectiveness of the military, puts American soldiers at risk, and shackles federal officials who have a constitutional duty to protect America."

A spokesman for the US Justice Department, which has been representing the former defense secretary, had no immediate comment. The Justice Department could appeal to the full appeals court or to the US Supreme Court.

There have been other lawsuits against Rumsfeld and the US government over allegations of abuse and torture overseas, but most involved foreigners, not US citizens, so federal courts have typically dismissed those cases.

A district judge in Washington last week allowed a similar case to proceed involving an American translator who worked in Iraq with the US military and who said he was later detained and subjected to harsh interrogation techniques and abuse.

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U.S. Citizens Can Sue Rumsfeld for Torture, 7th Circuit Affirms

By JOE CELENTINO

CHICAGO (CN) - Two Americans who worked for a private Iraqi security firm can sue former Defense Secretary Donald Rumsfeld for damages in connection to the alleged torture they suffered at the hands of U.S. forces, a divided 7th Circuit panel ruled.

Donald Vance and Nathan Ertel worked for Shield Group Security, a private security firm operating in the Red Zone outside of Baghdad. Suspecting that their employer was involved in illegal arms trading, bribery, weapons stockpiling and other illegal activity, the pair began reporting alleged wrongdoings to the U.S. government.

In April 2006, Shield officials became suspicious of Vance and Ertel, confiscating their credentials and effectively trapping them in the firm's compound. U.S. forces came to the compound and took the pair the U.S. Embassy.

But Vance and Ertel say their rescue soon turned into a nightmare. According to their complaint, U.S. officials transported them to Camp Cropper, where they were kept in solitary confinement and subjected to physical and psychological torture with no ability to contact their families or lawyers. Vance was allegedly kept in solitary confinement for three months, and Ertel for six weeks.

"If the plaintiffs' allegations are true, two young American civilians were trying to do the right thing by becoming whistleblowers to the U.S. government, but found themselves detained in prison and tortured by their own government, without notice to their families and with no sign of when the harsh physical and psychological abuse would end," Judge David Hamilton summarized.

After being returned the United States without being charged with a crime, Vance and Ertel sued Rumsfeld, claiming that he personally approved the interrogation and torture techniques they had endured.

U.S. District Judge Wayne Andersen denied Rumsfeld's motion to dismiss the suit, finding that the plaintiffs' claims, if true, "adequately alleged Secretary Rumsfeld's personal responsibility for their treatment."

The 7th Circuit upheld the bulk of that decision Monday.

The court found that a Bivens remedy, which allows personal lawsuits against government officials who violate clearly established constitutional rights, should be available to U.S. citizens in a war zone, "at least for claims of torture or worse."

"We conclude that the plaintiffs have sufficiently alleged Secretary Rumsfeld's personal responsibility," Hamilton wrote in an 82-page majority opinion. "While it may be unusual that such a high-level official would be personally responsible for the treatment of detainees, here we are addressing an unusual situation where issues concerning harsh interrogation techniques and detention policies were decided, at least as the plaintiffs have pled, at the highest levels of the federal government."

After Congress limited allowable interrogation techniques to those authorized in the Army Field Manual through the Detainee Treatment Act, Rumsfeld added 10 classified pages describing cruel, inhuman and degrading techniques, Vance and Ertel claimed.

Rumsfeld, represented by Obama administration lawyers, argued that judicial review of military actions was not appropriate. The federal appeals court disagreed.

"Recognizing the plaintiffs' claims for such grave - and, we trust, such rare - constitutional wrongs by military officials, in a lawsuit to be heard well after the fact, should not impinge inappropriately on military decision-making," Hamilton wrote.

"Courts reviewing claims of torture in violation of statues such as the Detainee Treatment Act or in violation of the Fifth Amendment do not endanger the separation of powers, but instead reinforce the complementary roles played by the three branches of our government."

The court also rejected Rumsfeld's claims of qualified immunity, finding that a "reasonable official in Secretary Rumsfeld's position in 2006 would have realized that the right of a United States citizen to be free from torture at the hands of one's own government was a 'clearly established' constitutional right and that the techniques alleged by plaintiffs add up to torture."

Though the court recognized that its decision could open the floodgates to similar claims, it held that the rights allegedly violated deserve judicial protection.

"These plaintiffs have alleged a grave breach of our most basic social compact - between 'We the People' and the government we created in our Constitution," the majority said.

"If we were to accept the defendants' invitation to recognize the broad and unprecedented immunity they seek, then the judicial branch - which is charged with enforcing constitutional rights - would be leaving our citizens defenseless to serious abuse or worse by another branch of their own government."

The appellate panel did reverse Andersen's ruling that the plaintiffs could pursue claims for property taken during their detention, finding that Rumsfeld was protected by the "military authority" exception to the Administrative Procedure Act.

In a 10-page dissent, Judge Daniel Manion accused the majority of misunderstanding the crux of the case.

"For starters, this case is not about constitutional rights, against torture or otherwise - the defendants readily acknowledge that the type of abuse alleged by the plaintiffs would raise serious constitutional issues," Manion wrote. "Rather, this case centers on the appropriate remedies for that abuse and who must decide what those remedies will be."

"Confronted by allegations as horrible as those described in this case, it is understandable that the court concludes that there must be a remedy for these plaintiffs," the dissent states (emphasis in original). "But that concern should not enable this court to create a new law. ... I dissent because sorting out the appropriate remedies in this complex and perilous arena is Congress's role, not the courts.'"

Courts should be especially cautious before opening a Pandora's box to Bivens claims, Manion wrote, citing decisions by the D.C. and 2nd Circuits.

"I agree with the court that allegations of torture against a U.S. citizen are a very serious matter," he added. "But given the significant pitfalls of judicial entanglement in military decisionmaking, it must be Congress, not the courts, that extends the remedy and defines its limits."

Rumsfeld's attorney released a fiery statement criticizing the 7th Circuit's ruling.

"Having judges second guess the decisions made by the armed forces halfway around the world is no way to wage a war," attorney David Rivkin said. "It saps the effectiveness of the military, puts American soldiers at risk, and shackles federal officials who have a constitutional duty to protect America. ... Vague and unsupported allegations should not be sufficient to pull cabinet officials and military officers and soldiers up and down the chain of command into court and distract them from their duty to the country."

Rivkin says he is confident that "this legally mistaken and factually unsupported decision" will be overturned.

The majority noted that Vance and Ertel must still prove Rumsfeld's involvement if the claims make it to trial.

"We express no view at this stage as to whether plaintiffs can prove their factual allegations," Hamilton wrote. "The former rank of the defendant, however, is not a basis for rejecting the plaintiffs' claims."

This is the second such lawsuit allowed to proceed against Rumsfeld. Last week, a Washington federal judge approved nearly identical claims by an unnamed Army veteran.

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They have been saving this...

Did the Senate just open the U.S. up to ICC prosecution?

By Mark Kersten December 10



U.S. soldiers patrol near Afghanistan’s Kandahar Airfield on June 3. (Brendan Smialowski/AFP/Getty Images)

Dec. 9 saw the much anticipated release of the U.S. Senate’s “torture report,” outlining in harrowing and tragic detail the CIA’s program of “enhanced interrogation techniques” in its “global war on terror.” On Dec. 2, the Office of the Prosecutor at the International Criminal Court also released a report in which it made clear that it was inching closer to opening an official investigation into crimes in Afghanistan – including U.S. interrogation techniques. These developments could very well expose U.S. officials to formal investigation – and potentially prosecution – by the ICC. But is the court truly prepared to confront Washington head-on?

The international justice and human rights world is abuzz with the possibility that accountability for U.S.-sponsored and perpetrated torture and so-called “enhanced interrogation techniques” may finally be at hand. In the span of just a few days, the once naive aspiration that U.S. officials would come under the judicial microscope of the ICC has been resuscitated.

However, any move to investigate and prosecute alleged crimes by U.S. citizens in Afghanistan needs to be set within the context of the ICC’s interest in maintaining positive relations with the United States while pushing for accountability for crimes committed by even the most powerful of states.

Despite the United States being a non-member state, no relationship has dominated the court’s first decade as much as that with Washington. The popular narrative, one that the court and its advocates regularly reiterate, is one of consistent struggle and resilient progress. The storyline goes something like this: Despite the United States voting against the creation of the ICC in 1998, in one of his last acts while in office, President Bill Clinton signed the Rome Statute. However, not long after the court became a functioning entity, then-U.S. Under Secretary of State for Arms Control and International Security John Bolton was dispatched to “unsign” the statute, an unprecedented political move. What followed was a series of hostile measures by the United States, including the passage of the American Service-Members Protection Act (or “The Hague Invasion Act”) which prohibited the United States from providing funds to the court and bestowed upon the president the right to use “all necessary measures” to repatriate any U.S. citizen detained by the court. At the same time, the administration successfully employed coercive diplomacy against over a hundred states to ensure that they signed “Bilateral Immunity Agreements,” guaranteeing that they would never surrender a U.S. official or soldier to the ICC.

During President George W. Bush’s second term, relations began to thaw. In 2005, the United States allowed the passage of a U.N. Security Council resolution referring Darfur to the ICC. When President Obama arrived on the scene, relations continued to warm. The United States began actively participating in ICC conferences, identified areas in which it could cooperate with the court and spoke of its “positive engagement”with the ICC. In addition, the State Department expanded its Rewards for Justice Program to include ICC indictees and played an important role in the surrender of Bosco Ntaganda, charged with committing war crimes in the Democratic Republic of Congo, to The Hague.

As David Bosco cogently argues in his book, “Rough Justice,” the ICC has generally sought to accommodate U.S. interests.

Seeking to improve its relationship with the world’s most powerful country – and the country with the best surveillance techniques and thus access to the kind of evidence the court needs – prosecutors avoided stepping on Washington’s toes, neither investigating alleged abuses by U.S. officials nor intervening in states where the United States had preexisting political interests. This avoidance of confrontation, however, may be about to change in dramatic fashion.

That allegations of torture by U.S. officials in Afghanistan were mentioned in the ICC prosecutor’s report may seem, at first glance, to be window dressing to assuage the concerns of many that the court is toothless when it comes to confronting powerful states. But behind this unprecedented and explicit mention of potential U.S. culpability is a court that appears more willing than ever to finally push the United States over accountability for international crimes in Afghanistan. However, in the wake of some serious setbacks including the collapse of the case against Kenyan President Uhuru Kenyatta, is the ICC in a position to do so?

There are two lines of thought on whether the ICC should pursue a formal investigation of U.S. officials for their use of torture in Afghanistan. First, there is the argument that the court is in too weak of a position to pursue the prosecution of citizens from great powers. The fear here is that the positive relationship the court worked so hard to earn shouldn’t be sacrificed for a fight that the ICC can’t win. The second viewpoint is that the court is in too weak of a position and thus it must confront abuses from great powers. The weakness of the ICC, in this view, stems from its unwillingness to challenge powerful states and its propensity to focus on weaker states in Africa. Strength will only come when the ICC fulfills its promise to transcend, rather than accommodate, global powers.

Unsurprisingly, U.S. officials aren’t thrilled with the prospect of an ICC investigation. Stephen Rapp, U.S. ambassador-at-large for war crimes issues, responded to the ICC’s report by insisting that, because the United States isn’t a member-state, the court has no right to investigate alleged war crimes committed by its citizens. But this is unlikely to resonate with human rights and international justice advocates, many of whom view it as another reiteration of U.S. exceptionalism.

With the release of the torture report, it will become increasingly difficult for the ICC not to press forward. Expectations that the court confront allegations of international crimes by Western states have never been higher and, as Eugene Kontorovich observes, the torture report “gives significant impetus and ammunition to the ICC’s investigation.” With the CIA’s dirty laundry now airing in the political winds, it will be nearly impossible for the court to reverse course and avoid confronting U.S. abuses in Afghanistan.

Still, advocates of accountability should not get too far ahead of themselves. The gears of justice at the ICC grind notoriously slowly. Moreover, the court’s endgame is not to prosecute U.S. officials. Instead, it is to galvanize domestic accountability for any alleged crimes committed by Western officials. Indeed, it is not within the ICC’s institutional interests to pick a fight it can’t win with the United States or incur the wrath of Washington’s resultant hostility. The prosecutor’s report on Afghanistan is thus not so much a threat to the United States as a signal to take justice for alleged torture seriously. Doing so would require going high up the political food chain, to those in the Bush administration “most responsible” for deploying torture as a means of war.

The question is: Will the United States take the opportunity to finally pursue accountability for alleged international crimes committed by its citizens in Afghanistan or not? The world – and the ICC – is watching.

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Senate Torture Report: George W. Bush Could Face War Crimes Charges From Detainee Who Suffered Brutal Rectal Exams

The Senate torture report released this week could lead to war crimes charges against George W. Bush and other architects of the torture program after the lawyer for one brutalized Guantanamo Bay detainee has raised the idea of pressing charges.

Mustafa Hawsawi, who is one of five defendants in the 9/11 case, was named in the report after allegedly suffering “rectal exams were carried out with ‘excessive force.'”

“CIA records indicate that one of the detainees, Mustafa al-Hawsawi, was later diagnosed with chronic hemorrhoids, an anal fissure, and symptomatic rectal prolapse,” the report read.

In an interview with Rolling Stone, Hawsawi’s lawyer said his client suffered torture so painful that he can no longer sit on his own and must sit on a pillow during court appearances.

In the article, Hawsawi’s lawyer Walter Ruiz brought up the idea of war crimes charges:

“I was shocked, in a way – even though I already had some knowledge of the facts. The manner in which it was described, and some of the language that was used in those cables and emails, just made it even more horrible. It was so callous. Particularly, there was that one comment about the food tray. [Ruiz is referencing a line in the report that reads: “Majid Khan’s ‘lunch tray,’ consisting of hummus, pasta with sauce, nuts, and raisins was ‘pureed’ and rectally infused.”] Clearly that conduct would be considered war crimes. And even I didn’t have the full extent of those details.”

Ruiz noted that Hawsawi had not spoken much about what he endured, but once he learned about what Hawsawi endured, he found it horrific:

“And my read of that is – I mean, we call that sodomy. That’s the equivalent of sodomizing someone. When you piece together the report and look at the different comments that were made – one comment was that they used the largest tube they could find – it’s not surprising he would not talk openly about something so horrific.”

While Ruiz didn’t specifically name George W. Bush when discussing war crimes, many others have called on the former president to be charged for overseeing the torture program. The United Nations Special Rapporteur on counter terrorism and human rights, Ben Emmerson, said all former Bush officials involved in the torture program should be charged.

“The heaviest penalties should be reserved for those most seriously implicated in the planning and purported authorization of these crimes,” he wrote. “Former Bush Administration officials who have admitted their involvement in the programme should also face criminal prosecution for their acts.”

But others say that the Senate torture report is unlikely to lead to war crimes charges for George W. Bush or any others involved in overseeing the program, largely because the countries that would have to bring forward the charges are reliant on the United States for economic and military support.

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U.N. experts call for prosecution over U.S. torture

By John Heilprin, The Associated Press 1:34 p.m. EST December 10, 2014

(Photo: Anjum Naveed/AP)

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GENEVA — All senior U.S. officials and CIA agents who authorized and carried out torture like waterboarding as part of former President George W. Bush's national security policy must be prosecuted, top U.N. human rights officials said Wednesday.

The U.N. high commissioner for human rights, Zeid Raad al-Hussein, said it is "crystal clear" under international law that the United States, which ratified the U.N. Convention Against Torture in 1994, now has an obligation to ensure accountability.

"In all countries, if someone commits murder, they are prosecuted and jailed. If they commit rape or armed robbery, they are prosecuted and jailed. If they order, enable or commit torture — recognized as a serious international crime — they cannot simply be granted impunity because of political expediency," he said.

Ben Emmerson, the U.N.'s special rapporteur on counterterrorism and human rights, said the U.S. report showed "there was a clear policy orchestrated at a high level within the Bush administration, which allowed (it) to commit systematic crimes and gross violations of international human rights law."


MILITARYTIMES
Former CIA chief denies lying to Congress on interrogations

He said international law prohibits granting immunity to public officials who allow the use of torture, and this applies not just to the actual perpetrators but also to those who plan and authorize it.

"The fact that the policies revealed in this report were authorized at a high level within the U.S. government provides no excuse whatsoever. Indeed, it reinforces the need for criminal accountability," Emmerson said.

Human Rights Watch executive director Kenneth Roth echoed those comments, saying "unless this important truth-telling process leads to the prosecution of officials, torture will remain a 'policy option' for future presidents."

In addition to waterboarding, the U.S. tactics included slamming detainees against walls, confining them to small boxes, keeping them isolated for prolonged periods and threatening them with death.

It's not clear, however, how rights officials think these prosecutions will take place.


MILITARYTIMES
CIA torture was ineffective, Senate report concludes

A Justice Department official said Wednesday the department did not intend to revisit its decision to not prosecute anyone for the interrogation methods. The official said the department had reviewed the committee's report and did not find any new information that would cause the investigation to be reopened.

"Our inquiry was limited to a determination of whether prosecutable offenses were committed," the official said. "Importantly, our investigation was not intended to answer the broader questions regarding the propriety of the examined conduct."

The United States is also not part of the International Criminal Court, which began operating in 2002 to ensure that those responsible for the most heinous crimes could be brought to justice. That court can step in only when countries are unwilling or unable to dispense justice themselves for genocide, crimes against humanity or war crimes. But any referral of a torture case would require approval by the U.N. Security Council, where the United States holds veto power.

In one case, suspected extremist Gul Rahman was interrogated in a prison in Afghanistan in late 2002, shackled to a wall in his cell and forced to rest on a bare concrete floor in only a sweatshirt. He died the next day. A CIA review and autopsy found he died of hypothermia.

Justice Department investigations into his death and another death of a CIA detainee resulted in no charges.

President Barack Obama said the interrogation techniques "did significant damage to America's standing in the world and made it harder to pursue our interests with allies." CIA Director John Brennan said the agency made mistakes and learned from them, but insisted the coercive techniques produced intelligence "that helped thwart attack plans, capture terrorists and save lives."

The Senate investigation, however, found no evidence the interrogations stopped imminent plots.

European Union spokeswoman Catherine Ray emphasized Wednesday that the Obama administration has worked since 2009 to see that torture is not used anymore but said it is "a commitment that should be enshrined in law."

German Foreign Minister Frank-Walter Steinmeier was quoted as telling the Bild daily that Obama had clearly broken with Bush policies and, as a result, Washington's "new openness to admitting mistakes and promising publicly that something like this will never happen again is an important step, which we welcome."

"What was deemed right and done back then in the fight against Islamic terrorism was unacceptable and a serious mistake," Steinmeier said. "Such a crass violation of free and democratic values must not be repeated."

Bush approved the program through a covert finding in 2002 but wasn't briefed by the CIA on the details until 2006. Obama banned waterboarding, weeks of sleep deprivation and other tactics, yet other aspects of Bush's national security policies remain, most notably the U.S. detention center at Guantanamo Bay, Cuba, and sweeping government surveillance programs.

U.S. officials have been tried in absentia overseas before.

Earlier this year, Italy's highest court upheld guilty verdicts against the CIA's former Rome station chief Jeff Castelli and two others identified as CIA agents in the 2003 extraordinary rendition kidnapping of an Egyptian terror suspect. The decision was the only prosecution to date against the Bush administration's practice of abducting terror suspects and moving them to third countries that permitted torture.

All three had been acquitted in the original trial due to diplomatic immunity. They were among 26 Americans, mostly CIA agents, found guilty in absentia of kidnapping Milan cleric Osama Moustafa Hassan Nasr from a Milan street on Feb. 17, 2003.

In Geneva last month, a U.N. anti-torture panel concluded a review of the United States' record by saying the government is falling short of full compliance with an international anti-torture treaty. It criticized U.S. interrogation procedures during the Bush administration and called on the U.S. government to abolish the use of techniques that rely on sleep or sensory deprivation.

As the review concluded, the Obama administration said it now considered the ban against torture to apply to prisoners held by the U.S. overseas, including Guantanamo Bay. Under the Bush administration, the U.S. interpreted the U.N. torture convention to apply only within U.S. borders.

[vector7]

UN: CIA torture must be prosecuted, including senior officials who authorized it


By Associated Press December 10, 2014




GENEVA — All senior U.S. officials and CIA agents who authorized or carried out torture like waterboarding as part of former President George W. Bush’s national security policy must be prosecuted, top U.N. officials said Wednesday.

It’s not clear, however, how human rights officials think these prosecutions will take place, since the Justice Department has declined to prosecute and the U.S. is not a member of the International Criminal Court.

Zeid Raad al-Hussein, the U.N. high commissioner for human rights, said it’s “crystal clear” under international law that the United States, which ratified the U.N. Convention Against Torture in 1994, now has an obligation to ensure accountability.

“In all countries, if someone commits murder, they are prosecuted and jailed. If they commit rape or armed robbery, they are prosecuted and jailed. If they order, enable or commit torture – recognized as a serious international crime – they cannot simply be granted impunity because of political expediency,” he said.

U.N. Secretary-General Ban Ki-moon hopes the U.S. Senate Intelligence Committee report on the CIA’s harsh interrogation techniques at secret overseas facilities is the “start of a process” toward prosecutions, because the “prohibition against torture is absolute,” Ban’s spokesman said.

Ben Emmerson, the U.N.’s special rapporteur on counterterrorism and human rights, said the report released Tuesday shows “there was a clear policy orchestrated at a high level within the Bush administration, which allowed (it) to commit systematic crimes and gross violations of international human rights law.”

He said international law prohibits granting immunity to public officials who allow the use of torture, and this applies not just to the actual perpetrators but also to those who plan and authorize torture.

“The fact that the policies revealed in this report were authorized at a high level within the U.S. government provides no excuse whatsoever. Indeed, it reinforces the need for criminal accountability,” Emmerson said.

Human Rights Watch executive director Kenneth Roth echoed those comments, saying “unless this important truth-telling process leads to the prosecution of officials, torture will remain a `policy option’ for future presidents.”

The report said that in addition to waterboarding, the U.S. tactics included slamming detainees against walls, confining them to small boxes, keeping them isolated for prolonged periods and threatening them with death.

However, a Justice Department official said Wednesday the department did not intend to revisit its decision to not prosecute anyone for the interrogation methods. The official said the department had reviewed the committee’s report and did not find any new information that would cause the investigation to be reopened.

“Our inquiry was limited to a determination of whether prosecutable offenses were committed,” the official said on condition of anonymity because they were not authorized to discuss an investigation. “Importantly, our investigation was not intended to answer the broader questions regarding the propriety of the examined conduct.”

The United States is also not part of the International Criminal Court, which began operating in 2002 to ensure that those responsible for the most heinous crimes could be brought to justice. That court steps in only when countries are unwilling or unable to dispense justice themselves for genocide, crimes against humanity or war crimes. The case could be referred to the ICC by the U.N. Security Council, but the United States holds veto power there.

In one U.S. case mentioned in the report, suspected extremist Gul Rahman was interrogated in late 2002 at a CIA detention facility in Afghanistan called “COBALT” in the report. There, he was shackled to a wall in his cell and forced to rest on a bare concrete floor in only a sweatshirt. He died the next day. A CIA review and autopsy found he died of hypothermia.

Justice Department investigations into his death and another death of a CIA detainee resulted in no charges.

President Barack Obama said the interrogation techniques “did significant damage to America’s standing in the world and made it harder to pursue our interests with allies.” CIA Director John Brennan said the agency made mistakes and learned from them, but insisted the coercive techniques produced intelligence “that helped thwart attack plans, capture terrorists and save lives.”

The Senate investigation, however, found no evidence the interrogations stopped imminent plots.

European Union spokeswoman Catherine Ray emphasized Wednesday that the Obama administration has worked since 2009 to see that torture is not used anymore but said it is “a commitment that should be enshrined in law.”

German Foreign Minister Frank-Walter Steinmeier was quoted as telling the Bild daily that Obama had clearly broken with Bush policies and, as a result, Washington’s “new openness to admitting mistakes and promising publicly that something like this will never happen again is an important step, which we welcome.”

“What was deemed right and done back then in the fight against Islamic terrorism was unacceptable and a serious mistake,” Steinmeier said. “Such a crass violation of free and democratic values must not be repeated.”

Bush approved the program through a covert finding in 2002 but wasn’t briefed by the CIA on the details until 2006. Obama banned waterboarding, weeks of sleep deprivation and other tactics, yet other aspects of Bush’s national security policies remain, most notably the U.S. detention center at Guantanamo Bay, Cuba, and sweeping government surveillance programs.

U.S. officials have been tried in absentia overseas before.

Earlier this year, Italy’s highest court upheld guilty verdicts against the CIA’s former Rome station chief Jeff Castelli and two others identified as CIA agents in the 2003 extraordinary rendition kidnapping of an Egyptian terror suspect. The decision was the only prosecution to date against the Bush administration’s practice of abducting terror suspects and moving them to third countries that permitted torture.

All three had been acquitted in the original trial due to diplomatic immunity. They were among 26 Americans, mostly CIA agents, found guilty in absentia of kidnapping Milan cleric Osama Moustafa Hassan Nasr from a Milan street on Feb. 17, 2003.

In Geneva last month, a U.N. anti-torture panel said the U.S. government is falling short of full compliance with the international anti-torture treaty. It criticized U.S. interrogation procedures during the Bush administration and called on the U.S. government to abolish the use of techniques that rely on sleep or sensory deprivation.

The word “torture,” meanwhile, wasn’t mentioned in U.S. Ambassador Samantha Power’s statement Wednesday for Human Rights Day in which she criticized countries including North Korea and South Sudan.

Read more: http://news.nationalpost.com/2014/12...#ixzz3LdSH19Ig

[American Patriot]

That's what this was all about? Getting Bush up on CHARGES?

I have a feeling that Clinton will stand up for Bush on this one.