President Could Order Civilians To Be 'Massacred'

By Michael Isikoff
Posted Friday, February 19, 2010 8:16 PM
Courtesy Of Newsweek

Former Justice Lawyer John Yoo

The chief author of the Bush administration's "torture memo" told Justice Department investigators that the president's war-making authority was so broad that he had the constitutional power to order a village to be "massacred," according to a report released Friday night by the Office of Professional Responsibility.

The views of former Justice lawyer John Yoo were deemed to be so extreme and out of step with legal precedents that they prompted the Justice Department's internal watchdog office to conclude last year that he committed "intentional professional misconduct" when he advised the CIA it could proceed with waterboarding and other aggressive interrogation techniques against Al Qaeda suspects.

The report by OPR concludes that Yoo, now a Berkeley law professor, and his boss at the time, Jay Bybee, now a federal judge, should be referred to their state bar associations for possible disciplinary proceedings. But, as first reported by NEWSWEEK, another senior department lawyer, David Margolis, reviewed the report and last month overruled its findings on the grounds that there was no clear and "unambiguous" standard by which OPR was judging the lawyers. Instead, Margolis, who was the final decision-maker in the inquiry, found that they were guilty of only "poor judgment."

The report, more than four years in the making, is filled with new details into how a small group of lawyers at the Justice Department, the CIA, and the White House crafted the legal arguments that gave the green light to some of the most controversial tactics in the Bush administration's war on terror. They also describe how Bush administration officials were so worried about the prospect that CIA officers might be criminally prosecuted for torture that one senior official—Attorney General John Ashcroft—even suggested that President Bush issue "advance pardons" for those engaging in waterboarding, a proposal that he was quickly told was not possible.

At the core of the legal arguments were the views of Yoo, strongly backed by David Addington, Vice President Dick Cheney's legal counsel, that the president's wartime powers were essentially unlimited and included the authority to override laws passed by Congress, such as a statute banning the use of torture. Pressed on his views in an interview with OPR investigators, Yoo was asked:

"What about ordering a village of resistants to be massacred? ... Is that a power that the president could legally—"

"Yeah," Yoo replied, according to a partial transcript included in the report. "Although, let me say this: So, certainly, that would fall within the commander-in-chief's power over tactical decisions."

"To order a village of civilians to be [exterminated]?" the OPR investigator asked again.

"Sure," said Yoo.

Yoo is depicted as the driving force behind an Aug. 1, 2002, Justice Department memo that narrowly defined torture and then added sections concluding that, in the end, it essentially didn't matter what the fine print of the congressionally passed law said: The president's authority superseded the law and CIA officers who might later be accused of torture could also argue that were acting in "self defense" in order to save American lives.

The original torture memo was prompted by concerns by John Rizzo, the CIA's general counsel, that the agency's officers might be criminally prosecuted if they proceeded with waterboarding and other rough tactics in their interrogation of Abu Zubaydah, an allegedly high-level Al Qaeda-linked operative who had been captured in Pakistan and in the spring of 2002 was transferred to a CIA "black site" prison in Thailand. Rizzo wanted the Justice Department to provide a blanket letter declining criminal prosecution, essentially providing immunity for any action engaged in by CIA officers, a request that Michael Chertoff, then chief of the Justice Department's criminal division, refused to provide. It was at that point that Yoo began crafting his opinion, the contents of which he actively reviewed with senior officials at the White House. "Let's plan on going over [to the White House] at 3:30 to see some other folks about the bad things opinion," he wrote in a July 12, 2002, e-mail quoted in the OPR report.

The report describes two meetings at the White House with then-chief counsel Alberto Gonzales and "possibly Addington." (Addington refused to talk to the OPR investigators but testified before Congress that he did in fact have at least one meeting with Yoo in the summer of 2002 to discuss the contents of the torture opinion.) After the second meeting, on July 16, 2002, Yoo began writing new sections of his memo that included his controversial views on the president's powers as commander in chief. When one of his associates, Patrick Philbin, questioned the inclusion of that section and suggested it be removed, Yoo replied, "They want it in there," according to an account given by Philbin to OPR investigators. Philbin said he didn't know who the "they" was but assumed it was whoever it was that requested the opinion (technically, that was the CIA, although, as the report makes clear, the White House was also pressing for it).

Yoo provided extensive comments to OPR defending his views of the president's war-making authority and disputing OPR's take that he slanted them to accommodate the White House. He did not immediately respond to NEWSWEEK'S request for comment Friday night.

Photos: A Timeline of Torture

John Yoo Again Defends Torture & An All-Powerfull Presidency

"Crisis and Command"

Written by Thomas R. Eddlem
Monday, 18 January 2010 09:46
Courtesy Of The New American

John Yoo's Crisis and Command is a turgid, 524-page love letter to an all-powerful Presidency generally and to dictatorship specifically. His theme? More Caesar, less Senate.

Infamous for penning the “Torture Memos” under the Bush administration, where he justified torture under the Bush administration by virtually defining torture out of existence, Yoo's book contends presidential powers are unlimited: “The executive was, rather, the servant of necessity, bound to act in accordance with, in the absence of, or in extraordinary emergencies, in defense of the republic, even contrary to regularly constituted law.” Yes, you read that right. Yoo says the President is above the law.

Yoo criticizes Thomas Jefferson and all who say that the power of the presidency has limits under the U.S. Constitution. The “great” Presidents, Yoo contends, are those who recognize they possess unlimited power, use it, and get away with it politically. Thus he applauds all of the worst excesses of the “great” Presidents Lincoln and Roosevelt, from Roosevelt's court-packing scheme and internment of Japanese during World War II to Lincoln's arrest of Congressmen and newspaper editors who disagreed with him during the Civil War. Because a President's powers are unlimited, a “national emergency” of any kind justifies indefinite detention of Japanese, denial of trial rights to anyone (including American citizens), torture, and warrantless wiretapping. Does the President's power even extend to the execution of masses of minorities without trial — say, Japanese-Americans during World War II — if the President thinks it's needed? Yoo doesn't say. “This presidential power can be used for bad reasons too,” he told the Daily Show's Jon Stewart. “The Constitution doesn't prevent people from making poor decisions.” By “people,” he means the President.

Though this pretty much defines the concept of dictatorship, Yoo claims he's got Founding Fathers who will back him up. He doesn't, but it is a bit of fun to look a little further into his blatant dishonesty. Yoo repeated a quote (ad nauseum, actually) from Alexander Hamilton in Federalist #23 as justification for his unlimited presidential power theory. In Federalist #23, Hamilton says,

It is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense.

To Yoo, this passage vindicates Presidents who assume unlimited power to command the nation in war, or whatever “emergency” he thinks the nation needs remedied. After all, the President is the “commander-in-chief.”

It sounds convincing until you notice that Federalist #23 doesn't even mention the President. The full context of the quote Yoo employs so liberally throughout the book is this:

The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.

All those powers “without limitation” listed in the first sentence of Hamilton's Federalist essay above are specifically and exclusively delegated to the Congress by Article I, Section 8 of the Constitution, not the President. Hamilton was obviously talking about Congress' war powers, not those of the President. Tellingly, Yoo doesn't quote that first part. (Note: All of those powers "without limitation" were later limited by the Bill of Rights, the first 10 Amendments to the U.S. Constitution.)

This raises the question: Can Yoo really be that daft? Can he really read such straightforward declarative English language sentences and honestly come out with the exact opposite of their intent?

The only answer the reader can come to is “no.” Yoo can be credibly labeled a lot of things, but illiterate is not among them. And he can't even blame the college interns who helped him research the book. Yoo used the same incorrect reference in his 2002 torture memo, for which he was mercilessly pilloried by his critics. Blatant dishonesty is the only remaining possibility.

Yoo is a lawyer, and lawyers love to talk about “interpreting” English as if it were Sanskrit or Swahili that the average human wouldn't understand. Many lawyers and judges cling to a modern gnosticism that holds only black-robed magi can uncover the hidden meanings in the U.S. Constitution. And it is true that sometimes words can have multiple meanings, but Yoo's book doesn't highlight one of those times where we find a sincere difference of opinion over an ambiguous text. Yoo's quest in Crisis and Command is to obliterate all meaning. Lawyers are famous (or infamous, depending upon your point of view) for extracting meaning from words, sometimes even meanings that aren't there. Yoo may be the first lawyer to claim that English sentences have no meaning.

Yoo quotes the congressional war powers from the U.S. Constitution, so he's not unaware of them. They are:

• “To declare war,”
• “To raise and support Armies,”
• “To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations,”
• “To make Rules for the Government and Regulation of the land and naval Forces,”
• “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions,” and
• “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States.”

If that doesn't leave anything for the President, Yoo remains untroubled. He simply ignores the text of the Constitution. Comedy Central's Daily Show host Jon Stewart asked Yoo: “Can the President decide when [we] are at war?” Despite quoting the above clearly worded powers in the Constitution in his book, Yoo replied: “Well he can, although Congress can check him. And that's another thing I try to describe in the book.... All Congress has to do is do nothing. Because they have to fund and approve all of these activities.”

Ah, yes, the old “all Congress has to do is cut off funding to the troops fighting in the battlefield” check to provide balance between the execusitve and legislative branches. As '60s-era television secret agent Maxwell Smart might have said, “That's the second time I've fallen for it this week.” Cutting off supplies to our sons in the battlefield hardly constitutes a check at all. Cutting funds is political suicide and would only beget warmongering if that were the only check Congress had been given on war. Of course, that's why Congress was given the additional war powers under the Constitution. More importantly, Yoo's book actually undermines his own arguments that congressional control over military funding constitutes an effective check: Yoo praises Presidents who spent money for wars without congressional consent. After all, Yoo tediously reminds the reader, the President's powers are “without limitation.”

Even Alexander Hamilton — that great lover of executive power — explicitly acknowledged that only Congress could bring the nation to war. Hamilton states unequivocally “war is a question, under our Constitution, not of executive, but of legislative cognizance. It belongs to Congress to say — whether the nation shall of choice dismiss the olive branch and unfurl the banners of war.” Since Yoo quoted liberally from this same anonymous correspondence between Hamilton and James Madison over Washington's neutrality proclamation in Crisis and Command, he can't claim to be ignorant of Hamilton's views on the lack of presidential power to bring the nation to war. George Washington, Thomas Jefferson, and James Madison also each wrote explicitly that only Congress can bring the nation to war.

Yoo: Lesson of the Founders Is an Omnipotent Executive

But Yoo ignores men like Madison, who noted that the President is merely empowered to enforce the laws Congress makes. “The natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws,” Yoo quotes Madison as writing, “All his acts therefore, properly executive, must presuppose the existence of the laws to be executed.” Yoo can't argue with Madison's logic there, can he? He doesn't bother. The plain meaning of the Constitution's text must be ignored, according to Yoo: “This view of the Presidency diminishes its constitutional authority and independence to that of a Clerk-in-Chief whose main duty is to execute Congress's laws. This interpretation profoundly misreads the political developments around the founding of America and the drafting of its Constitution.”

Yoo explains his view of what those “political developments” were at the time of the founding. The Natural Law? No, Yoo fails to mention it entirely. Inalienable rights of man as “endowed by their Creator”? Nah, the whole concept of individual rights is only discussed in the context of privileges that the President can suspend when he deems it necessary. And forget about any role God has on those rights. God makes no appearance in Crisis and Command, not even a cameo.

Enlightenment writers such as Locke, Montesquieu, and Blackstone are mentioned in Crisis and Command, but Yoo acts as if they had nothing to say about individual rights or God. After all, if you have an unlimited executive, you can't have inalienable rights. An all-powerful President can't tolerate an all-powerful God giving out inalienable rights to everyone willy-nilly. The all-powerful presidency is a jealous god. The real lesson of the Enlightenment era, Yoo implies, is a clarion call for the same old unlimited executive power that has existed in every dictatorship in most of the governments throughout world history.

A God who gives out rights to all people by nature of their births and which are inalienable — inseparable — from those people is anathema to Yoo. “It is naïve to say, as Obama did in his inaugural speech, that we can 'reject as false the choice between our safety and our ideals.' That high-flying rhetoric means that we must give al Qaeda — a hardened enemy committed to our destruction — the same rights as garden-variety criminals at the cost of losing critical intelligence about real, future threats.” Once again, Yoo claims that government gives out rights, though he implies that it ought not do so. Every freedom-loving American should have cheered Obama's statement quoted above, even if most experienced patriots had good cause to doubt Obama's follow-through.

Yoo's statements would be regarded as the rantings of a deranged post-communist apparatchik in a better time. But the sad truth is that much of the national Republican Party has bought into Yoo's argument that government, not God, gives out rights, and that government ought not to “give” rights to people we don't like. One recent example is Massachusetts Republican Scott Brown, who is running a close January 19 election to succeed Ted Kennedy in the U.S. Senate. Brown stated in a television commercial in the week before the election that “some people believe our Constitution exists to grant rights to terrorists who want to harm us. I disagree. Our laws are meant to protect this nation, not our enemies. As your Senator, I will never compromise our nation's security.” The clear implication of Brown's campaign ad is that government gives out rights — not God — and that government shouldn't give them out to people it doesn't like.

This anti-freedom phalanx within the Republican Party is today the dominant faction of the Party, if we judge it from recent GOP leadership statements or the votes of the congressional rank-and-file on the Military Commissions Act of 2006. Congressional Republican leaders are outraged that the Constitution's Sixth Amendment requirement for a jury trial may be followed. House Republican Conference Chairman Mike Pence whined to the press January 8: “I think most Hoosiers were appalled to see the Underwear Bomber in Detroit was immediately read his rights, provided an attorney at taxpayer expense, and is now being given access to the due process afforded to American citizens in our criminal courts.” Though Democrats propose to increase government spending and regulations slightly faster than the GOP, the Republican idea that the constitutionally protected right to a jury trial and guarantee against torture should be jettisoned makes economic questions seem a rather trivial matter by comparison. A party that openly defends the unchecked ability of a President to put anyone in a dungeon for torture without even a trial doesn't deserve support from any freedom-loving person just because that party favors lowering the top income tax rate of the imprisoned man to 33 percent from 38 percent. Some GOP leaders would repeal the entire message of American freedom all the way back to the Enlightenment period of the early 1700s, replacing it with an omnipotent presidency. Yoo is in many respects the founding father of this branch of the GOP.

Fox News Channel Commentator Judge Andrew Napolitano noted recently that “most modern Presidents have contended that their principal job is to keep us safe. They are wrong. The Constitution says that the President's first job is to keep us free. If he keeps us safe but not free, he is not doing his job.” Napolitano is precisely right. Presidents take an oath to defend the Constitution, not the people. But defending individual rights in the Constitution is — as Obama said in his inaugural address — more or less the same thing as protecting the people. That's a lesson that people who want smaller government need to learn, or they'll never get the smaller government they seek.

Crisis and Command, John Yoo, New York: Kaplan Publishing, 2009, 524 pages, hardcover, $29.95.

A Brief For Bush

By Joseph Margulies
February 01, 2010 Issue
Courtesy of The American Conservative Magazine

John Yoo, the embattled law professor and former attorney with the Justice Department’s Office of Legal Counsel, has completed his third and final book on the power of the presidency. Yoo, of course, was the principal author of the most controversial legal memos of the Bush years. His work gave the administration cover for many of its most problematic programs, including indefinite detention at Guantanamo and torture by the CIA. Given this résumé, it has become an immensely popular parlor game to launch personal attacks on Professor Yoo. No reproach seems to satisfy his many detractors, who vilify him in print and protest him in public. Websites are devoted to his pillory. At a minimum, we are told, he should be indicted as a war criminal, fired from the academy, and disbarred from the practice of law.

Such insults are easy to level but harder to defend. I say this despite my long professional engagement with Yoo’s handiwork. I have been involved in challenges to post-9/11 detentions since late 2001. I was counsel of record in Rasul v. Bush, the first case to hold that Guantanamo was not a prison beyond the law. I am also counsel for Abu Zubaydah, the man for whose interrogation the CIA sought, and Yoo wrote, the infamous torture memos in August 2002. At every step of the way over these last seven years, I have confronted legal arguments crafted by Yoo—arguments I consider legally deficient and morally bankrupt. But I have never doubted that he sincerely believed the president had the authority to act as he did. He is mistaken, not malign. My criticism has always been with his ideas, not his character.

And the idea behind his latest book, Crisis and Command: A History of Executive Power From George Washington to George W. Bush, is simple: throughout American history, crisis has inspired constitutional daring, and the race to presidential greatness goes not to the leader who hews most faithfully to the constitutional text but to the one most willing to bend the document to meet the perceived demands of the day. It is a disappointing contribution to the literature on the Constitution and the American presidency, and beneath a scholar of Yoo’s ability.

In his introduction, Yoo mocks the raft of writers who saw a return of the imperial presidency in the policies of his former employer. They just don’t understand. The reader settles down for the coming donnybrook, in which the learned professor will marshal what he perceives as the lesson of American history to prove that presidential greatness requires inherent authority—the prerogative to ignore the will of Congress and the fetters of the Constitution when the national interest demands it, as when war clouds our visage. (That is what the historian Arthur Schlesinger meant by the imperial presidency when he coined the term and what he described at length in his 1973 Pulitzer Prize-winning book of the same name.) But the proof never comes. Professor Yoo is a creative, even inventive scholar. Yet even he cannot make an argument that the great sweep of American history sustains a case for inherent presidential power beyond the Constitution. It is simply not true.

The most thorough account of these issues during the founding and early Republic is Abe Sofaer’s classic from a generation ago, War, Foreign Affairs, and Constitutional Power: The Origins. Professor Sofaer, then at Columbia Law School, later a Reagan administration appointee, and now a senior fellow at the Hoover Institution, carefully documents the many occasions when presidents have deliberately pursued constitutionally questionable behavior that could, or did, lead to military engagements. He concludes, “At no time did the executive claim ‘inherent’ power to initiate military action.”

Lincoln, for instance, accused President Polk of acting unconstitutionally when he unilaterally provoked the Mexican War in 1848. The founders, Lincoln said, had “resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.” Yet 13 years later, Lincoln assembled the militia, enlarged the Army and Navy beyond their authorized numbers, suspended habeas, spent un-appropriated funds, and instituted a naval blockade of the southern ports, all without congressional approval. But Lincoln understood that his actions were beyond the Constitution, and that he would later be accountable to Congress and the American public. Never did he pretend these steps were justified by some inherent right to act as he saw fit.

As Yoo well knows, the claim to an inherent right has a much more modest historical pedigree, beginning only in 1950 with President Truman’s defense of his decision to dispatch troops to Korea without congressional authorization. Dean Acheson, Truman’s secretary of state, later took credit for this constitutional innovation: it was not for nothing that Acheson titled his autobiography Present at the Creation.

Since Truman, the fortunes of the imperial presidency have waxed and waned. Every postwar president has claimed some version of the power of inherent right, though some, like Eisenhower, made relatively less use of it than others, like Johnson. But this postwar experience proves there is no correlation between presidential greatness and constitutional license. The Nixon presidency, for instance, represented the high-water mark of that thinking—until George W. Bush at least. Nixon demonstrated, to the nation’s considerable regret, that should the ineffable demands of national security be enough to unleash a president’s inherent authority, then it is just a matter of time before domestic political dissenters and “enemies” at home come to be regarded as threats to national security. “When the president does it,” Nixon later explained, “that means that it is not illegal.” Wisely, Professor Yoo does not number Nixon among the great presidents. Yet his theory cannot explain Nixon’s many shortcomings.

The lesson here is that many who have occupied the Oval Office at times have been, shall we say, constitutionally adventuresome. The Founders fully expected as much. And the wisdom of their insight was not the fatalistic resignation that it would happen but the utopian vision that it might be harnessed. They hoped to design a political system in which no part may long operate without the aid of the others, so that the natural and salutary impulse by one branch to chaff at the limits of its power would be checked by the competing impulse of the other, interdependent branches to do the same. The result, they hoped, would be “a machine that would go of itself,” as once was said of the Constitution.

The presidential impulse to take liberties with the Constitution is thus not a sign that some presidents are great but that all are human. For that reason, it bears no relationship to excellence. In arguing otherwise, Professor Yoo makes an elementary logical error: because great presidents have bent the Constitution, he thinks greatness must require it. This confuses a characteristic with a cause; nearly all presidents have bent the Constitution, and Lord knows we cannot count them all as exceptional. The characteristic, in other words, cannot explain the condition. Instead, presidential greatness, to the extent we can define it, emerges as the unpredictable convergence of character and circumstance—extraordinary leaders who made the most of grave challenges and unique opportunities.

It was George W. Bush who demonstrated most clearly the difference between breaking the mold and breaking the law. Yoo maintains that the policies of the Bush administration “fell within the precedents set by earlier Presidents.” But that is not defensible. The most controversial policies of the Bush years—including indefinite detention without due process, legalized torture, and warrantless domestic surveillance of American citizens—shattered American legal and moral traditions. In each case, the Bush administration claimed an inherent right, ostensibly justified by the crisis at hand, to exceed the Constitution, ignore Congress, and evade the Judiciary. At the same time, the administration adopted an unprecedented commitment to secrecy, which to this day has prevented the complete scope of executive misfeasance from coming to light. It was, by design, unfettered executive power deliberately divorced from public or political accountability.

Professor Yoo remains an unapologetic booster for these policies and defends them by dropping all pretense to scholarship. He repeats the old canard about torture as the one indispensable means to get “timely information from captured al Qaeda terrorists.” Tellingly, he does not say that the information would be reliable and avoids the mounting evidence that the torture program has repeatedly produced false leads, including the catastrophic claim of a link between al-Qaeda and Saddam Hussein. He insists that warrantless domestic surveillance is necessary “to prevent a devastating attack on the American homeland,” but does not stoop to justify his hyperbole. And he mocks the decision by the Obama administration to protect prisoners from “humiliating and degrading treatment” and “outrages on personal dignity,” as required by the Geneva Conventions.

Professor Yoo is not a student of the American presidency and does not claim either to advance new constitutional arguments or to have unearthed new primary sources. It is impossible to avoid the suspicion that his real objective is not so much scholarship as redemption. If President Bush, against all odds, becomes the next great man, known to history as the president who reshaped the office to meet the challenges of his time, then Professor Yoo—the legal architect of the attempted transformation—rises like a phoenix from the burned wreckage of a ruined reputation, no longer a pariah but a sage.

History, of course, always has the last word, and no one should be fool enough to predict with confidence whether the passage of time will be kind to the memory of our 43rd president. But one lesson of American presidential history is already clear: greatness, like respect, requires considerably more than an accumulation of power. It is a lesson that John Yoo has not yet learned.
__________________________________________

Joseph Margulies is Clinical Professor of Law at the Roderick MacArthur Justice Center at Northwestern University.

Crisis and Command: A History of Executive Power from George Washington to George W. Bush, John Yoo, Kaplan Publishing, 544 pages

Historian's Account Of Democrats and Bush-Era War Crimes

By Glenn Greenwald
Thursday Oct. 8, 2009 13:09 EDT
Courtesy Of The Salon Media Group

(updated below - Update II - Update III)

The American Propsect's Adam Serwer notes that, yesterday, Sen. Joe Lieberman successfully inserted into the Homeland Security appropriations bill an amendment -- supported by the Obama White House -- to provide an exemption from the Freedom of Information Act's mandates by authorizing the Defense Secretary to suppress long-concealed photographs of detainee abuse. Two courts had ruled -- unanimously -- that the American people have the right to see these photographs under FOIA, a 40-year-old law championed by the Democrats in the LBJ era and long considered a crowning jewel in their legislative achievements. But this Lieberman amendment, which is now likely to pass, undermines all of that and -- as EBay founder Pierre Omidyar put it today -- its central purpose is to "legalize suppression" of evidence of American war crimes.

What made those detainee photographs so important from the start is that they depict brutal abuse well outside of the Abu Ghraib facility and thus reveal to Americans -- and the world -- that America's torture was not, as they've been constantly told, limited to rogue sadists at Abu Ghraib and the waterboarding of three bad guys. Instead, our torture regime was systematic, pervasive, brutal, fatal, and -- because it was the by-product of conscious policies set at the highest levels of government -- common across America's "War on Terror" detention regime. These photographs would have documented those vital facts; combated the false denials from torture apologists; fueled the momentum for accountability; and revealed, in graphic and unavoidable terms, what was truly done by America's government. But a Democrat-led Congress, at the urging of a Democratic President, is now taking extraordinary steps -- including a new law which has no purpose other than to suppress evidence of America's war crimes -- to ensure that this evidence never sees the light of day.

If a historian were to write about the events of the first nine months of 2009 when it came to transparency issues as they relate to the war crimes of the Bush years, the following is what would be written. Just remember this was all done with an overwhelming Democratic majority in both houses of Congress and a Democratic President elected on a promise to usher in "an unprecedented level of openness in Government" and "a new era of openness in our country." There's no blaming Republicans for any of this:

In February, the Obama DOJ went to court to block victims of rendition and torture from having a day in court, adopting in full the Bush argument that whatever was done to the victims is a "state secret" and national security would be harmed if the case proceeded. The following week, the Obama DOJ invoked the same "secrecy" argument to insist that victims of illegal warrantless eavesdropping must be barred from a day in court, and when the Obama administration lost that argument, they engaged in a series of extraordinary manuevers to avoid complying with the court's order that the case proceed, to the point where the GOP-appointed federal judge threatened the Government with sanctions for noncompliance. Two weeks later, "the Obama administration, siding with former President George W. Bush, [tried] to kill a lawsuit that seeks to recover what could be millions of missing White House e-mails."

In April, the Obama DOJ, in order to demand dismissal of a lawsuit brought against Bush officials for illegal spying on Americans, not only invoked the Bush/Cheney "state secrets" theory, but also invented a brand new "sovereign immunity" claim to insist Bush officials are immune from consequences for illegal domestic spying. The same month -- in the case brought by torture victims -- an appeals court ruled against the Obama DOJ on its "secrecy" claims, yet the administration vowed to keep appealing to prevent any judicial review of the interrogation program. In responses to these abuses, a handful of Democratic legislators re-introduced Bush-era legislation to restrict the President from asserting "state secrets" claims to dismiss lawsuits, but it stalled in Congress all year. At the end of April and then again in August, the administration did respond to a FOIA lawsuit seeking the release of torture documents by releasing some of those documents, emphasizing that they had no choice in light of clear legal requirements.

In May, after the British High Court ruled that a torture victim had the right to obtain evidence in the possession of British intelligence agencies documeting the CIA's abuse of him, the Obama administration threatened that it would cut off intelligence-sharing with Britain if the court revealed those facts, causing the court to conceal them. Also in May, Obama announced he had changed his mind and would fight-- rather than comply with -- two separate, unanimous court orders compelling the disclosure of Bush-era torture photos, and weeks later, vowed he would do anything (including issue an Executive Order or support a new FISA exemption) to prevent disclosure of those photos in the event he lost yet again, this time in the Supreme Court. In June, the administration "objected to the release of certain Bush-era documents that detail the videotaped interrogations of CIA detainees at secret prisons, arguing to a federal judge that doing so would endanger national security." In August, Obama Attorney General Eric Holder announced that while some rogue torturers may be subject to prosecution, any Bush officials who relied on Bush DOJ torture memos in "good faith" will "be protected from legal jeopardy." And all year long, the Obama DOJ fought (unsuccessfully) to keep encaged at Guantanamo a man whom Bush officials had tortured while knowing he was innocent.

That's the record which an historian, wedded as faithfully as possible to a narration of indisputable facts, would be compelled to write. And those are just disclosure and transparency issues relating to Bush-era crimes. None of that has anything to do with ongoing assertion of detention powers, habeas corpus denials, renditions, transparency issues generally, the Democrats' active efforts just this week to prevent abuses of the Patriot Act and FISA, etc. (for those with Twitter, just read Marcy Wheeler's infuriating account from the last two hours of how key Democrats in the Senate -- led by Dianne Feinstein and Pat Leahy -- just gutted virtually every effort to rein in Patriot Act and FISA abuses that were sponsored by Feingold, Durbin and even Arlen Specter: NAJIBULLAH ZAZI!!!). And now this war on transparency is all culminating with a White House-backed effort -- spearheaded by key ally Joe Lieberman -- to sweep aside two federal court rulings and to write a new exemption for FOIA that has no purpose but to prevent the world from seeing new and critical evidence of systematic American war crimes. If the stated goal of Democrats had been to use their newfound control of Government to protect and suppress Bush-era war crimes, how could they have done any better?

UPDATE: When I interviewed House Rules Committee Chairwoman Louise Slaughter back in June, she vowed to do everything possible to stop the Lieberman/Graham/Obama photo suppression amendment, arguing that FOIA was every bit "as sacred to Democrats as Social Security and Medicare." If only that were true. Back in June, Slaughter -- with the help of an intense campaign from blogs and civil libertarians -- did succeed in blocking its enactment, but as Mother Jones' Nick Baumann reports, the legislative mechanism used by Lieberman this week virtually assures its passage, even though Slaughter vows still to oppose it.

Two other related notes: (1) a journalist emails me to remind that I should add to Obama's anti-transparency crusade the White House's efforts to water down the "journalist shield law" to the point where it would easily enable the Government to compel disclosure of the identity of whistle-blowers in the national security context (i.e., the kind who told Dana Priest about CIA black sites and Eric Lichtblau about illegal NSA eavesdropping) -- a clear violation of Obama's campaign platform that was engineered by the White House in secret rather than out in the open; and (2) I wasn't able to watch the Patriot Act proceedings today, but -- in addition to Wheeler's linked descriptions above -- the normally rhetorically restrained Adam Serwer just wrote of the Senate Democrats' bill: "Senate passes PATRIOT Act Reauthorization. They should name it after J. Edgar Hoover."

UPDATE II: Quite related to all of this: The Nation's Chris Hayes today examines how many liberal advocacy groups allow themselves to be controlled by the White House and subject themselves to collective message coordinating. As Hayes notes, Jane Hamsher refers to these controlled progressive groups as the "veal pen," which she expertly described here. There are many reasons why the reaction to things such as what I describe in today's post from progressive groups (as distinct from the very vocal civil liberties groups) has been so muted and acquiescent -- e.g., a tribal refusal to criticize one's own, a gut belief that someone as good and just as Barack Obama couldn't possibly really be continuing Bush/Cheney policies and complicitly helping to suppress their war crimes, the anger that one provokes from one's own "allies" with such criticism, etc. -- but the organized co-option process which Hayes and Hamsher document, accompanied by the fear of losing access and funding, is a very significant factor.

UPDATE III: Russ Feingold just wrote a scathing condemnation of the behavior of his Senate Democratic colleagues and, especially, the Obama administration with regard to what they just did with the Patriot Act and FISA renewals, including this:

I am also very troubled that administration officials have been taking positions behind closed doors that they are not taking publicly. . . [I]f the administration wanted to further water down the already limited reforms in the bill that was on the table, they should have said so openly. Instead, at our only public hearing we were told that the Justice Department did not have positions on the crucial issues about to be discussed. Then, over the past week, in classified settings, the Department has weighed in against even some of the limited reforms that Sen. Leahy originally proposed.

The administration loves to posture in public as though they support various reforms -- to lead their wild-eyed supporters to believe they do -- only to work in secret to gut those same reforms. Feingold adds that "[a]t the beginning of the year, I had high hopes for the Patriot Act reauthorization process." Why? Just because of small facts like these:

We had just elected a President with a strong civil liberties record in the Senate. His Attorney General had supported some reforms during consideration of the last reauthorization bill in 2005. And Democrats controlled the Senate by such a large margin that our advantage on the Judiciary Committee ended up at 12-7 after Sen. Specter switched parties.

Despite all of that, Feingold ended up having to vote against the new Patriot Act bill that he spent all year leading because it was diluted to the point where very little was fixed and some things were actually made worse. When it comes to transparency and civil liberties, that's what the Democratic Congress and White House are. If the record I documented here isn't enough to see that, then take it from someone who sees them up close and personal every day.

-- Glenn Greenwald

An Inquisition The World Can Be Proud Of

Those who start pre-emptive wars leading to the deaths of thousands should be held liable for crimes against humanity. Private security forces that massacre innocent civilians should be tried for war-crimes

By Dallas Darling
First Published 2009-09-16,
Last Updated 2009-09-16 15:02:29
Courtesy Of Middle-East-Online

It was on this day, September 16, 1498, that the “burnt tower” died. The burnt tower, as he was called, was Monasterio de Santo Tomas, a Dominican monk. He had dedicated his life to God by cleansing Spain of its heretics. As the first and worst Grand Inquisitor of the Spanish Inquisition, he and his collaborators targeted and tortured tens of thousands of Jews and Muslims who claimed to have converted to Christianity, but still practiced their faith. Using a network of spies and encouraging neighbors to report any unusual behavior, Monasterio de Santo Tomas brutally extracted confessions and punished the guilty with execution at the stake. It is estimated that he burned in the name of God 2000 Muslims and Jews.(1)

When it was reported that Spain’s Judge Baltasar Garzon was pursuing a case against six senior Bush Administration lawyers for torturing detainees at Guantanamo Prison Camp, it was welcomed news. In truth, it is finally an inquisition that the world can be proud of. Unlike the Spanish Inquisition that extracted confession through sadistic means, and unlike the detainees at Guantanamo Prison Camp and other secret sites around the world that have been tortured and killed, this investigation will pursue justice and follow the rule of law. Already Judge Garzon has named John Yoo-Bush’s lawyer in the Justice Department, and Douglass Feith-undersecretary of defense for policy, to be investigated. Both of which were architects of policies that denied rights to individuals and spilled innocent blood.

Ironically, it was the misguided and overly zealous Spanish inquisitors that helped devise individual rights and a fair trial during the Age of Reason. Cesare Bonesana Beccaria was so incensed of the Spanish Inquisition’s injustices, that he spent much of his life writing against abusing witnesses and torturing prisoners. He also worked for the right to speedy trials and the abolishment of irregular proceedings and excessive punishments. Beccaria’s ideas that the rights of all people should be protected by governments challenged long-held ideas about society. As a result of this, the power of monarchs, religious leaders, and tyrants were limited. A more unjust set of standards and abusive punishments for the lower classes, as compared to the upper classes, were also challenged and reformed.

Several years ago when Judge Garzon indicted former Chilean dictator Augusto Pinochet and al-Qaeda leader Osama bin Laden, he showed that no one should act as if they were above the rule of law. He also sent a message that leaders who behave as lawgiver, judge, and executioner should be held accountable for the war-crimes they commit. Now that Judge Garzon has accepted a lawsuit by a number of Spanish organizations and three former Guantanamo prisoners, will those who implemented the abuse and torture at Guantanamo Bay Prison Camp and other secret sites also be answerable? And what about those who oversaw the tortuous policies of John Yoo and Douglass Feith? And what about their collaborators?

In a world of American hubris, global capitalism, and corporate resource wars, there needs to be more activist judges who side with truth and justice and that try to put an end to the rule of supremacy and militarism. Those who start pre-emptive wars leading to the deaths of thousands should be held liable for crimes against humanity. Others who rule over conglomerates and view themselves as corporate crusaders (with the task of eliminating people of other faiths from the globe) should be made responsible for their crimes against peace. Private security forces that massacre innocent civilians should be tried for war-crimes.

It is unfortunate the Spanish Parliament just passed legislation to end the practice of its judges seeking war-crime indictments against officials from foreign nations. It is also regrettable that some are resisting Judge Garzon’s investigation into Spain’s own past, namely General Franco’s regime and its war-crimes during Spain’s civil war. “It is better to prevent crimes than to punish them,” wrote Beccaria. The real criminal perpetrators are often presidents, prime ministers, and generals of imperial powers. What keeps them from a war-crimes tribunal are their powerful positions, their enormous militaries, and their sanitized histories that bury state-sponsored acts of terrorism, along with their victims.

With activist and justice oriented examiners like Garzon, a fair and more peaceful world will be realized. It will finally be a kind of inquisition the world can be proud of.

Dallas Darling is the author of Politics 501: An A-Z Reading on Conscientious Political Thought and Action, Some Nations Above God: 52 Weekly Reflections On Modern-Day Imperialism, Militarism, And Consumerism in the Context of John‘s Apocalyptic Vision, and The Other Side Of Christianity: Reflections on Faith, Politics, Spirituality, History, and Peace. He is a correspondent for www.worldnews.com. You can read more of his articles at www.beverlydarling.com and wn.com//dallasdarling.)

Note:

(1) Marsh, W.B. and Bruce Carrick. 365 Your Date With History. Toronto, Canada: Penguin Books, 2004. p. 455.

Torture First, Justify Afterwards

Yoo acted as an advocate for administration policy and massaged his legal advice to fit the wishes of his Bush administration superiors, rather than carefully analyzing the law as an independent-minded lawyer, according to these sources

By Jason Leopold.
First Published 2009-09-16,
Last Updated 2009-09-16 11:10:00
Courtesy Of Middle-East-Online

The Bush administration gave its initial clearance for CIA interrogators to brutalize an al-Qaeda “high-value detainee” through verbal guidance and didn’t follow up with a formal legal opinion until “months later,” the CIA’s former inspector general said.

In an interview with the German magazine Der Spiegel, ex-CIA Inspector General John Helgerson confirmed what has long been suspected, that the abusive interrogation of al-Qaeda operative Abu Zubaydah in 2002 began well before the Justice Department’s Office of Legal Counsel cobbled together a controversial legal opinion justifying acts that are commonly regarded as torture.

Der Spiegel’s reporter posed a question to Helgerson that assumed Zubaydah’s torturous interrogation had predated the Aug. 1, 2002, legal memo from OLC attorneys John Yoo and Jay Bybee. "Did the lawyer who signed the memorandum simply authorize a technique months after this technique had already been applied?" reporter Britta Sandberg asked Helgerson.

Helgerson told Sandberg that "basically" her assumption was correct and added, "There was some legal advice given orally to the CIA that had then been followed up by memorandums months later."

Though human rights groups had long speculated that the torture of Zubaydah began prior to the Yoo-Bybee memo, some experts were surprised by Helgerson’s use of the word “months,” suggesting the abusive interrogations may have started soon after a wounded Zubaydah was captured in Pakistan on March 28, 2002, and then flown to a CIA “black site” in Thailand.

This altered chronology also undercuts assertions by defenders of the interrogation program, the likes of Vice President Dick Cheney, that the policy was carefully crafted and implemented only after legal issues were carefully weighed by the OLC, which advises presidents about interpreting laws, in this case those that prohibit torture.

Exactly what the OLC’s oral legal advice was – and whether it was inappropriately influenced by White House political desires – may be answered by a still classified report prepared by the Justice Department's Office of Professional Responsibility, an internal ethics unit, according to Justice Department sources who have been briefed on the contents of the report.

The watchdog unit has spent five years probing whether Yoo, Bybee and another OLC lawyer Steven Bradbury provided poor legal advice in authorizing CIA interrogators to use the near-drowning of waterboarding and other interrogation methods to glean information about terrorist plots from prisoners.

The report's findings are said to conclude that Yoo acted as an advocate for administration policy and massaged his legal advice to fit the wishes of his Bush administration superiors, rather than carefully analyzing the law as an independent-minded lawyer, according to these sources.

Clues to a Chronology

Early clues about when torture was begun on Zubaydah surfaced earlier this year, in a Freedom of Information Act lawsuit the American Civil Liberties Union filed against the CIA in connection with the agency's destruction of 92 interrogation videotapes in 2005.

In court documents, the CIA disclosed that it began videotaping interrogations of Zubaydah and Abd al-Rahim al-Nashiri, the alleged mastermind of the 2000 attack on the USS Cole, in April 2002, four months before Yoo and Bybee drafted their torture memo.

The agency also acknowledged that 12 of those videotapes showed the two detainees being subjected to harsh techniques. However, the agency refused to disclose documents to the ACLU that would have indicated whether the torture took place prior to the Aug. 1, 2002, legal memo.

Then, in May a newly declassified timeline released by the Senate Select Committee on Intelligence fleshed out the details a bit more.

According to the Intelligence Committee, in April 2002, while Zubaydah was still hospitalized and recovering from gunshot wounds, the CIA’s Office of General Counsel began to discuss with John Bellinger, legal adviser to the National Security Council, and the OLC, about “the CIA’s proposed interrogation plan for Abu Zubaydah and legal restrictions on that interrogation.”

The CIA believed that as early as April 2002, just a few weeks after he was captured, Zubaydah was withholding “imminent threat information during the initial interrogation sessions” – a position that drew objections from FBI interrogators who believed they had successfully obtained actionable intelligence from Zubaydah through rapport-building and other non-violent techniques.

It was around this time, in April and May of 2002, that meetings were arranged involving high-ranking Bush administration officials, including then White House Counsel Alberto Gonzales, Michael Chertoff, who at the time was the head of the Justice Department’s Criminal Division, and National Security Adviser Condoleezza Rice to discuss an “alternative” set of interrogation methods, including waterboarding.

“The CIA’s Office of General Counsel subsequently asked OLC to prepare an opinion about the legality of its proposed techniques,” the Intelligence Committee timeline states.

For his part, Zubaydah told the International Committee of the Red Cross that his treatment grew nastier as his detention progressed, although he offered no specific timeline. He did recall that CIA interrogators said he was their first subject, “so no rules applied. It felt like they were experimenting and trying out techniques to be used later on other people.”

Just a month after Zubaydah's capture, in its April 27, 2002, issue, Newsweek published a story about the "imminent threat information" that he supposedly gave up to his interrogators. The article, "How Good Is Abu Zubaydah's Information?" said the Bush administration "issued two domestic terrorism warnings" based on the information Zubaydah provided to "US interrogators.”

But none of the alleged threats, including plots to attack banks in the Northeast or US shopping malls, materialized or were ever shown to have been anything approaching an actual operation.

Information Doubted

In an interview, Jack Cloonan, a former FBI special agent assigned to the agency's elite Bin Laden unit, said Abu Zubaydah "wasn't privy to a lot of what I would consider to be a lot of really good operational details," getting most of his information second-hand.

“We thought he would be best described as a logistical officer who managed a series of safe houses and was a great travel agent,” Cloonan said. “But to cast him and describe him as the al-Qaeda emir or leader for the subcontinent or worse to that effect I think was a mistake. … Based on his age and ethnicity, [he] would [n]ever be brought into the inner circle of al-Qaeda.”

There was also the question of Zubaydah’s personality. “My partner had a chance to look at a lot of Abu Zubaydah's diaries, poems and other things that he has written and he said that after reading this you just come away with the feeling that this is a guy who can't be trusted or being given huge amounts of responsibility,” Cloonan said. “He just seemed mentally unstable. …

“I'm not at all suggesting that Abu Zubaydah wasn't valuable. Anytime you get one of these guys and get their cooperation I think is a win. You can get information that's really valuable from people who are further down the food chain. It's how you get the information and whether you're getting real cooperation or simply compliance because somebody's either waterboarding you or gets you on sleep deprivation.

“We know and the science tells us that people cannot recall details accurately, they can't look at pictures, they will make things up if deprived of the bare essentials of life over the course of time. I don't understand how you could sleep deprive somebody for 11 days and now expect this person to provide you with accurate information.

“Even if they wanted to they're probably so debilitated at this point they need to be rehabilitated before they ever give you anything."

Cloonan's description of Zubaydah backs up what author Ron Suskind reported in his book The One Percent Doctrine.

Suskind said Zubaydah was not the “high-value detainee” the CIA had claimed. Rather, Zubaydah was a minor player in the al-Qaeda organization, handling travel for associates and their families. However, George W. “Bush was fixated on how to get Zubaydah to tell us the truth,” Suskind wrote, adding that Bush asked one CIA briefer, “Do some of these harsh methods really work?”

And after Zubaydah was subjected to coercive interrogation techniques, including waterboarding, he spoke about a wide range of plots against a number of US targets, such as shopping malls, the Brooklyn Bridge and the Statue of Liberty. Yet, Suskind wrote, the information Zubaydah provided under duress was not credible.

According to Suskind, Zubaydah’s captors soon discovered that their prisoner was mentally ill and knew nothing about terrorist operations or impending plots. That realization was “echoed at the top of CIA and was, of course, briefed to the President and Vice President,” Suskind wrote.

Hyping the Case

Still, in public statements, Bush portrayed Zubaydah as “one of the top operatives plotting and planning death and destruction on the United States” and added: “So, the CIA used an alternative set of procedures” to get Zubaydah to talk.

The President did not want to “lose face” because he had stated his importance publicly, Suskind wrote.

In the book, State of War, New York Times reporter James Risen wrote that days after Zubaydah was captured, CIA Director George Tenet went to the White House to provide Bush with a daily intelligence briefing as well as details of "the Zubaydah case."

"Bush asked Tenet what information the CIA was getting out of Zubaydah," Risen wrote. "Tenet responded that they weren't getting anything yet, because Abu Zubdaydah had been so badly wounded that he was heavily medicated. He was too groggy from painkillers to talk coherently. Bush turned to Tenet and asked: 'Who authorized putting him on pain medication?'"

Risen's source for the information told him it's possible that this was simply "jocular banter" between Bush and Tenet. But Risen wrote that it's also a possibility that the "comment meant something more."

"Was the president of the United States implicitly encouraging the director of Central Intelligence to order the harsh treatment of a prisoner? If so, this episode offers the most direct link yet between Bush and the harsh treatment of prisoners by both the CIA and the US military," Risen wrote. "If Bush made the comment in order to push the CIA to get tough with Abu Zubaydah, he was doing so indirectly, without the paper trail that would have come from a written presidential authorization."

CIA documents from a Combatant Status Review Tribunal in March 2007 revealed that Zubaydah's torturers eventually apologized to him and said they concluded he was not a top al-Qaeda lieutenant as the Bush administration and intelligence officials had claimed.

"They told me sorry we discover that you are not number three [in al-Qaeda], not a partner, even not a fighter," Zubaydah said during his tribunal hearing.

Jason Leopold is an investigative reporter and the author of News Junkie. His website is pubrecord.org.