What will the US do about torture?
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| Tue, 06-08-2004 - 1:28pm |
By Jim Lobe
WASHINGTON - A classified Pentagon report, providing a series of legal arguments apparently intended to justify abuses and torture against detainees, appears to undermine public assurances by senior US officials, including President George W Bush, that the military would never resort to such practices in the "war on terrorism".
Short excerpts of the report, which was drafted by Defense Department lawyers, were published in the Wall Street Journal on Monday. The text asserts, among other things, that the president, in his position as commander-in-chief, has virtually unlimited power to wage war, even in violation of US law and international treaties.
"The breadth of authority in the report is wholly unprecedented," says Avi Cover, a senior attorney with the US Law and Security program of Human Rights First, formerly known as Lawyers Committee for Human Rights. "Until now, we've used the rhetoric of a president who is 'above the law', but this document makes that explicit; it's not a metaphor anymore," he added.
While it is unknown whether Bush himself ever saw or approved the report, it was classified "secret" by Pentagon chief Donald Rumsfeld on March 6, 2003, the eve of the US invasion of Iraq, according to the Journal.
A full copy of the report is expected to be published on the Internet soon, according to sources who declined to say on which website it would appear.
The report's partial publication comes amid growing charges that the Pentagon is engaged in a cover-up of the full extent of abuses committed by US forces in their anti-terrorism campaign in Afghanistan, Iraq, at the US naval facility at Guantanamo Bay, Cuba, and elsewhere.
{snip, snip}
In its report, the working group took the position that neither the US Congress, the courts, nor international law could interfere with the president's powers to wage war. That means, according to the report, that the president himself is not bound by US law, such as the federal Torture Statute or the constitutional ban on "cruel and unusual" punishment.
"In order to respect the president's inherent constitutional authority to manage a military campaign ... must be construed as inapplicable to interrogations undertaken pursuant to his commander-in-chief authority," the document stated, adding later that "without a clear statement otherwise, criminal statutes are not read as infringing on the president's ultimate authority" to wage war.
"What's most terrifying about this is the argument that the administration has been making since September 11 - that the president has unlimited power to do whatever he deems necessary," said Cover. "It doesn't matter what Congress says, what the constitution says, or what international law says."
But the report also bolsters the growing belief that easing the rules governing interrogations was a top-level policy decision that better explains why reports of abuses are so widespread.
"If anyone still thinks that the only people who dreamt up the idea about torturing prisoners were just some privates and corporals at Abu Ghraib, this document should put that myth to rest," said Tom Malinowski, Washington director of Human Rights Watch. "It's not hard to see how these abstract arguments made in Washington led to appalling and systematic abuses that ended up doing huge damage to US interests," he said.
"Effectively, what you've got here is a group of government attorneys trying to justify war crimes," Horton told Inter Press Service. "It makes a mockery of Haynes' statement about adhering to the CAT and Bush's assurances that the US would not torture or subject detainees to cruel or inhumane treatment.
"If we apply the same rules to ourselves as we have advocated in the international tribunals on Yugoslavia and Rumsfeld , then Donald Rumsfeld is in very serious trouble."

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Legalizing Torture
Wednesday, June 9, 2004; Page A20
THE BUSH administration assures the country, and the world, that it is complying with U.S. and international laws banning torture and maltreatment of prisoners. But, breaking with a practice of openness that had lasted for decades, it has classified as secret and refused to disclose the techniques of interrogation it is using on foreign detainees at U.S. prisons at Guantanamo Bay and in Afghanistan and Iraq. This is a matter of grave concern because the use of some of the methods that have been reported in the press is regarded by independent experts as well as some of the Pentagon's legal professionals as illegal. The administration has responded that its civilian lawyers have certified its methods as proper -- but it has refused to disclose, or even provide to Congress, the justifying opinions and memos.
This week, thanks again to an independent press, we have begun to learn the deeply disturbing truth about the legal opinions that the Pentagon and the Justice Department seek to keep secret. According to copies leaked to several newspapers, they lay out a shocking and immoral set of justifications for torture. In a paper prepared last year under the direction of the Defense Department's chief counsel, and first disclosed by the Wall Street Journal, the president of the United States was declared empowered to disregard U.S. and international law and order the torture of foreign prisoners. Moreover, interrogators following the president's orders were declared immune from punishment. Torture itself was narrowly redefined, so that techniques that inflict pain and mental suffering could be deemed legal. All this was done as a prelude to the designation of 24 interrogation methods for foreign prisoners -- the same techniques, now in use, that President Bush says are humane but refuses to disclose.
There is no justification, legal or moral, for the judgments made by Mr. Bush's political appointees at the Justice and Defense departments. Theirs is the logic of criminal regimes, of dictatorships around the world that sanction torture on grounds of "national security." For decades the U.S. government has waged diplomatic campaigns against such outlaw governments -- from the military juntas in Argentina and Chile to the current autocracies in Islamic countries such as Algeria and Uzbekistan -- that claim torture is justified when used to combat terrorism. The news that serving U.S. officials have officially endorsed principles once advanced by Augusto Pinochet brings shame on American democracy -- even if it is true, as the administration maintains, that its theories have not been put into practice. Even on paper, the administration's reasoning will provide a ready excuse for dictators, especially those allied with the Bush administration, to go on torturing and killing detainees.
Perhaps the president's lawyers have no interest in the global impact of their policies -- but they should be concerned about the treatment of American servicemen and civilians in foreign countries. Before the Bush administration took office, the Army's interrogation procedures -- which were unclassified -- established this simple and sensible test: No technique should be used that, if used by an enemy on an American, would be regarded as a violation of U.S. or international law. Now, imagine that a hostile government were to force an American to take drugs or endure severe mental stress that fell just short of producing irreversible damage; or pain a little milder than that of "organ failure, impairment of bodily function, or even death." What if the foreign interrogator of an American "knows that severe pain will result from his actions" but proceeds because causing such pain is not his main objective? What if a foreign leader were to decide that the torture of an American was needed to protect his country's security? Would Americans regard that as legal, or morally acceptable? According to the Bush administration, they should.
http://www.washingtonpost.com/wp-dyn/articles/A26602-2004Jun8.html
Here's the editorial from the LAT. Let's hope they keep the pressure on.
EDITORIAL
Twisting American Values
"Everything changed after 9/11" became, in 2001, the slogan that justified new approaches to national security, including curtailment of civil liberties. Nearly three years later, we learn that even the use of torture was being justified when it came to terror suspects. The Bush administration's Justice Department turned the Constitution on its head by telling the White House in an August 2002 memo — written nearly a year after the attacks on the World Trade Center and the Pentagon — not only that torture "may be justified" but that laws against torture "may be unconstitutional if applied to interrogations" in the U.S. war on terror.
Those are the words of out-of-control government servants willing to discard the most fundamental values of this nation. But the declaration became the basis for a secret draft report in March 2003 by Pentagon lawyers to Defense Secretary Donald H. Rumsfeld. That report said the president's "inherent constitutional authority to manage a military campaign" meant prohibitions on torture did not apply.
It is not known if the language of the draft survived in a final report, and Pentagon officials said the document had no effect on revised interrogation procedures for Guantanamo Bay inmates issued in April 2003. But the memo's willingness to discard international and domestic laws adds strength to questions about the interrogations of prisoners in Afghanistan, Iraq and the U.S. facility in Guantanamo Bay, Cuba. A 2001 memo from Rumsfeld's office, for instance, said intelligence officers should "take the gloves off" when interrogating the so-called American Talib, John Walker Lindh.
"A few bad apples" was the dismissive phrase used by the White House after photos of brutality by U.S. forces in Iraq's Abu Ghraib prison leaked out. The fact that there were numerous soldiers, including alleged Army intelligence officers, in some of the pictures immediately chipped at that claim. New reports of abuse or torture of inmates in Afghanistan rolled in. Last month, the Pentagon said 32 inmates had died in U.S. custody in Iraq and five in Afghanistan; so far, eight of the deaths appear to have been homicides.
Congress must determine how far up the chain of command the abuse stretched and who authorized or tolerated it. The torture memo, all drafts of the report to Rumsfeld and the names of those who received them should be made public. Atty. Gen. John Ashcroft refused such a request Tuesday by the Senate Judiciary Committee. The effort shouldn't stop there.
In 1994, the U.S. ratified the international Convention Against Torture, which states there are "no exceptional circumstances whatsoever" to justify torture. Torture is morally wrong and practically ineffective. This was especially true at Abu Ghraib, where most detainees were not suspected terrorists. Mistreatment of inmates invites retaliation against captured U.S. soldiers, one reason many uniformed Pentagon lawyers opposed the memo's conclusions.
The administration should open its files and explain its interrogation procedures. Anything less reinforces the image of a brutal nation unfettered by the rule of law.
http://www.latimes.com/news/opinion/editorials/la-ed-torture9jun09,1,3900355.story?coll=la-news-comment-editorials
If actions were taken and charges were filed then why was it that the people who did this were not actually brought up on charges until a week after the pictures were found.
James
janderson_ny@yahoo.com
CL Ask A Guy
>"Even on paper, the administration's reasoning will provide a ready excuse for dictators, especially those allied with the Bush administration, to go on torturing and killing detainees. "<
Good point! The US named "The War on Terror" also gives the same excuse for the above to aggressively pursue those that oppose them.
>"What if a foreign leader were to decide that the torture of an American was needed to protect his country's security? Would Americans regard that as legal, or morally acceptable? According to the Bush administration, they should."<
Great care SB taken before disregarding international laws/courts. This admin. has shown disdain for the courts.
Good article.
http://www.nytimes.com/2004/06/09/politics/09TTEX.html
JANUARY 2002 A series of memorandums from the Justice Department, many of them written by John C. Yoo, a University of California law professor who was serving in the department, provided arguments to keep United States officials from being charged with war crimes for the way prisoners were detained and interrogated. The memorandums, principally one written on Jan. 9, provided legal arguments to support administration officials' assertions that the Geneva Conventions did not apply to detainees from the war in Afghanistan.

JAN. 25 Alberto R. Gonzales, the White House counsel, in a memorandum to President Bush, said that the Justice Department's advice in the Jan. 9 memorandum was sound and that Mr. Bush should declare the Taliban and Al Qaeda outside the coverage of the Geneva Conventions. That would keep American officials from being exposed to the federal War Crimes Act, a 1996 law that carries the death penalty.
JAN. 26 In a memorandum to the White House, Secretary of State Colin L. Powell said the advantages of applying the Geneva Conventions far outweighed their rejection. He said that declaring the conventions inapplicable would "reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the laws of war for our troops." He also said it would "undermine public support among critical allies."
FEB. 2 A memorandum from William H. Taft IV, the State Department's legal adviser, to Mr. Gonzales warned that the broad rejection of the Geneva Conventions posed several problems. "A decision that the conventions do not apply to the conflict in Afghanistan in which our armed forces are engaged deprives our troops there of any claim to the protection of the conventions in the event they are captured." An attachment to this memorandum, written by a State Department lawyer, showed that most of the administration's senior lawyers agreed that the Geneva Conventions were inapplicable. The attachment noted that C.I.A. lawyers asked for an explicit understanding that the administration's public pledge to abide by the spirit of the conventions did not apply to its operatives.
AUGUST A memorandum from the Office of Legal Counsel in the Justice Department provided a rationale for using torture to extract information from Qaeda operatives. It provided complex definitions of torture that seemed devised to allow interrogators to evade being charged with that offense.
MARCH 2003 A memorandum prepared by a Defense Department legal task force drew on the January and August memorandums to declare that President Bush was not bound by either an international treaty prohibiting torture or by a federal anti-torture law because he had the authority as commander in chief to approve any technique needed to protect the nation's security. The memorandum also said that executive branch officials, including those in the military, could be immune from domestic and international prohibitions against torture for a variety of reasons, including a belief by interrogators that they were acting on orders from superiors "except where the conduct goes so far as to be patently unlawful.'
APRIL A memorandum from Secretary of Defense Donald H. Rumsfeld to Gen. James T. Hill outlined 24 permitted interrogation techniques, 4 of which were considered stressful enough to require Mr. Rumsfeld's explicit approval. Defense Department officials say it did not refer to the legal analysis of the month before.
DEC. 24 A letter to the International Committee of the Red Cross over the signature of Brig. Gen. Janis Karpinski was prepared by military lawyers. The letter, a response to the Red Cross's concern about conditions at Abu Ghraib, contended that isolating some inmates at the prison for interrogation because of their significant intelligence value was a "military necessity," and said prisoners held as security risks could legally be treated differently from prisoners of war or ordinary criminals.
OTHER MEMORANDUMS Some have been described in reports in The Times and elsewhere, but their exact contents have not been disclosed. These include a memorandum that provided advice to interrogators to shield them from liability from the Convention Against Torture, an international treaty and the Anti-Torture Act, a federal law. This memorandum provided what has been described as a script in which officials were advised that they could avoid responsibility if they were able to plausibly contend that the prisoner was in the custody of another government and that the United States officials were just getting the information from the other country's interrogation. The memorandum advised that for this to work, the United States officials must be able to contend that the prisoner was always in the other country's custody and had not been transferred there. International law prohibits the "rendition" of prisoners to countries if the possibility of mistreatment can be anticipated.
Out of the entire article this was what stuck out for me most. I watched with a sense of deep disappointment, dread and anger as Congress gave away its right to declare war to the President, giving him unprecedented power. I was and still am angry at the Democrats who rolled over and played dead and with Gephart and Lieberman, in particular, as they stood proudly flanking Bush in the Rose Garden basically giving away Congress' power to declare war. I know many members of Congress thought they were simply giving Bush a tool to browbeat Hussein into submission without actually going to war. They should have realized from past experiences with the man that if they gave him an inch, he would take a mile. I was resigned to sitting home and not voting at all until Howard Dean finally had the courage to speak up and challenge the Bushies. He vocalized many of my own sentiments. He energized the Democrats and even though I can't vote for him for pres., I'll still feel comfortable voting for Kerry.
Why should every other country in the world be bound by the Geneva Convention or else be guilty of war crimes but not the United States. Because Bush says so and he's the biggest kid on the block and he's obviously not concerned about getting along with other major countries in the world, not when he can bribe or buy a "coalition" friend.
I too was horrified to learn what Congress did after 9/11. I think many Congressmen were duped. With regard to your question, the memo's are incestuous being based on other meno's from the same source. Here are the concluding paragraphs of an article that spells out the problem.
Cooking Up Excuses With the Pentagon
How to torture alleged terrorists and get away with it.
By Phillip Carter
Posted Thursday, June 10, 2004, at 1:42 PM PT
********
"Of course, it's not the lawyers we should be worried about. The lawyers who drafted this memo face little risk of prosecution, and they're not the ones in harm's way. We ought to be concerned about the soldiers and spooks charged with executing these missions, though, especially when they're asked to act on the basis of such shoddy legal advice. The Bush administration has created an atmosphere of legal ambiguity where the laws of armed conflict are concerned. This laissez faire attitude toward the law of war has filtered down to the lowest levels of command, where tactical decisions about taking detainees and targeting artillery are conducted. Before the events of 9/11 and America's global war on terrorism, soldiers and spooks had at least a few bright-line rules: Never target civilians; never beat prisoners; never violate the Geneva Conventions. Those rules have now been blurred by bad legal advice from the top lawyers of the Bush administration, with predictable results. Case in point: American soldiers training on how to beat recalcitrant al-Qaida detainees learned their craft so well, they put one of their own brethren, an American soldier, out of the service with permanent brain damage. The great moral hazard of bad legal advice is not that it will corrupt the lawyers offering it, but that it will engender criminal behavior by those who follow it in the belief that their lawyers are right.
"Law" and "war" may seem like the ultimate oxymoronic pairing, but until now, the United States has led the world in trying to harmonize the two. Until recently, American soldiers and diplomats could rightly claim that no other nation integrated the law into its conduct of war more than we do. Today, America's ambassadors abroad can no longer make that statement. That, in turn, undermines our ability to force other nations to adhere to international law, since we no longer lead by example. More practically, our soldiers used to take comfort in the principle of reciprocity where the laws of war are concerned; now they have to worry about reciprocity from our enemies. We must return to the old bright-line rules which used to govern our conduct in war, both because it's the right thing to do and because it's in our interest to do so.
http://slate.msn.com/id/2102203/#ContinueArticle
Hmmm.....
http://seattlepi.nwsource.com/national/apwashington_story.asp?category=1152&slug=Army%20Private%20Interrogators
Saturday, June 12, 2004 · Last updated 12:53 p.m. PT
Interrogators hired for Iraq despite ban
By MATT KELLEY
ASSOCIATED PRESS WRITER
WASHINGTON -- The Army hired private interrogators to work in Iraq and Afghanistan despite the service's policy of barring contractors from military intelligence jobs such as interrogating prisoners.
A policy memo from December 2000 says letting private workers gather military intelligence would jeopardize national security. An Army spokeswoman said senior commanders have the authority to override the contractor ban.
Some of the dozens of private contractors hired to interrogate prisoners in Iraq and Afghanistan are under investigation in connection with abuses at the Abu Ghraib prison near Baghdad and other prisons. Army investigators are looking into whether the contracts were awarded properly.
The Abu Ghraib case also stirred criticism from some Democrats that the Pentagon was relying too heavily on private contractors, even for military functions such as collecting intelligence.
Thomas White, who quit as Army secretary last year after clashing with Defense Secretary Donald H. Rumsfeld, said he opposed hiring contractors to question prisoners.
"The principle that should be applied is that the basic process of interrogation and oversight of prisoners should be kept in-house, on the Army side," White said in a telephone interview. "That's something that would have to be under the direct supervision of the Army."
Army spokeswoman Lt. Col. Pamela Hart said Saturday that the contractor ban remains in effect. The policy allows for hiring private interrogators and interpreters if there are not enough of those specialists in the Army.
"Commanders on the ground may use their discretion," Hart said.
The Army's top personnel official, Patrick T. Henry, wrote the policy in December 2000.
Henry cited a "risk to national security" in turning over intelligence functions to private sector workers. Private contractors may work for companies that do business with other countries and are not subject to the same chain of command that soldiers are, Henry wrote.
"Reliance on private contractors poses risks to maintaining adequate civilian oversight over intelligence operations," Henry wrote. "Civilian oversight over intelligence operations and technologies is essential to assure intelligence operations are conducted with adequate security safeguards and within the scope of law and direction of the authorized chain of command."
An Army report on the abuses at Abu Ghraib says problems at the prison included confusion over who was in charge of contractors and a lack of supervision of the private workers.
The report from Maj. Gen. Antonio Taguba says one contract interrogator, Steven Stefanowicz of CACI International, and a contract translator, John B. Israel of Titan Corp., were "either directly or indirectly responsible for the abuses at Abu Ghraib."
Israel's family has declined comment. Henry Hockeimer Jr., a lawyer for Stefanowicz, has said his client did nothing wrong.
A third contractor implicated in the abuses, translator Adel Nakhla of Titan, has been fired. Nakhla's lawyer, Francis Q. Hoang, has not returned repeated messages.
Meanwhile, the Washington Post reported Saturday that Lt. Gen. Ricardo Sanchez, the top U.S. military officer in Iraq, gave senior officials at Abu Ghraib flexibility to use military dogs, temperature extremes, reversed sleep patterns, sensory deprivation and diets of bread and water on detainees. Those techniques could be used without seeking permission of officials outside the prison, The Post said, citing newly obtained documents.
These options were not dropped until prison abuse scandal began in May, the newspaper said.
In September, Sanchez approved a broader list of 32 interrogation tactics, which included more severe methods. But after officials at U.S. Central Command raised objections, Sanchez removed several items and required his direct approval for others.
Among the tactics dropped were taking away prisoners' religious items, controlling their exposure to light and pretending to be from a country that deals severely with detainees, the Post said.
It is not clear if the harsher tactics were ever used. Defense Department spokesman Bryan Whitman said several investigations into the abuse are examining not only interrogation procedures, but how they were implemented, the Post said.
cl-nwtreehugger
Community Leader:
Apparently this is the tip of a huge iceberg--Privatization of CIA
This Spy for Rent
By JAMES BAMFORD
Published: June 13, 2004
Assessing, cultivating and recruiting spies has long been a key job of Central Intelligence Agency officers. But now it is the C.I.A. officers themselves who are being assessed, cultivated and recruited — sometimes right out of the agency's cafeteria. In what is leading to a critical spy drain, private companies are aggressively seeking highly trained employees of our espionage agencies to fill government contracts.
With the resignation of George Tenet as director of central intelligence and the final hearings of the 9/11 commission this week, the stage is set for the first major restructuring of the intelligence community in decades. While there has been much discussion of moving agencies and creating an "intelligence czar," the privatization of our spies has been largely overlooked.
The C.I.A. is awash in money as a result of post-9/11 budget increases. But because of the general uncertainty over the future, it faces a long delay before it can recruit, train and develop a new generation of spies and analysts. So for now it is building up its staff by turning to the "intelligence-industrial complex."
These corporations range from Fortune 500 giants like Booz Allen Hamilton and Northrop Grumman to small companies made up almost entirely of former senior C.I.A. officers, like the Abraxas Corporation in McLean, Va. For example, one Abraxas expert, Mary Nayak, formerly ran the Directorate of Intelligence's South Asia group; now she's been hired as a consultant to the C.I.A.'s review group on 9/11.
Private contractors are taking over jobs once reserved for highly trained agency employees: regional desk officers who control clandestine operations around the world; watch officers at the 24-hour crisis center; analysts who sift through reams of intelligence data; counterintelligence officers who oversee clandestine meetings between agency officers and their recruited spies; and reports officers who act as liaisons between officers in the field and analysts back at headquarters.
While there is nothing inherently wrong with the intelligence community working closely with private industry, there is the potential for trouble unless the union is closely monitored. Because the issue is hidden under the C.I.A.'s heavy layers of secrecy, it is impossible for even Congress to get accurate figures on just how much money and how many people are involved. But many experts inside and outside the agency feel that we are talking about hundreds of millions of dollars and thousands of contractors.
As was made clear by the Abu Ghraib prison scandal, involving private contractors in sensitive intelligence operations can lead to disaster. And the potential for disaster only grows when not just the agents on the ground, but their supervisors and controllers back at headquarters too, are working for some private company.
Another problem has been an increased cost to taxpayers. Desperate to fill their contracts, the companies frequently offer to double a federal employee's salary. Because the recruiters have security clearances, they often make their recruiting pitches at the C.I.A.'s headquarters in Langley, Va. And many of those who do sign on end up going right back to their old office — only now working for a private company. Thus, after spending millions of dollars training people to be clandestine officers, taxpayers are having to pay them twice as much to return as rent-a-spies.
"The money is incredible," one agency veteran, who handled spies overseas for years, told me. "I doubled my salary to go out and come back in and continue doing what I was doing."
But some of these former officers warned me that their talents are being wasted on unsophisticated tasks, and that because of the slap-dash nature of the rush to expand, the quality of intelligence produced has become questionable. "The problem is these jobs are mindless," one officer-turned-contractor with decades of Middle East experience told me. "So we're all just sitting there looking at each other, and we're making a ridiculous amount of money."
Another former agency employee told me that he was among a group of contractors assigned to analyze e-mail messages on computer hard drives snatched by operatives in Iraq, Afghanistan and other countries. "A lot of it was in Arabic and none of us spoke Arabic — just a little problem," he said. "None of us really knew what we were doing and we had management who didn't know what they were doing either."
As the United States gets more deeply involved in the war on terrorism and the war in Iraq, there will be a corresponding increase in private spies. This isn't all bad: by marrying well-trained federal employees with innovative contractors working in a less structured role, perhaps we can find more effective ways of tackling old problems.
But better oversight is critical. If Congress doesn't even know whom the C.I.A. is hiring, how can anyone ensure that what they are doing (and how much they are being paid) is acceptable? As we decide how to remake our intelligence services, we need to find the right balance between the people who make the cloaks and daggers and the people who wear them.
James Bamford is the author, most recently, of "A Pretext for War: 9/11, Iraq, and the Abuse of America's Intelligence Agencies."
http://www.nytimes.com/2004/06/13/opinion/13BAMF.html
Wow! There
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