No, Let’s Not Move On, Torture and the Rule of Law

“We do not torture.” G.W. Bush, 2005.

As everyone has probably heard by now President Obama has released some of the previously secret legal memos the Bush administration used to justify torture. You can download them in pdf from the ACLU here, Abuse of Power: The Bush Administration’s Secret Legal Memos. Glenn Greenwald’s take here –  Obama to release OLC torture memos; promises no prosecutions for CIA officials. Digby has a very good post up that includes some background on how torture has failed as an intelligence tool, though we still hear not just the usual far right conservative apologists, but conservative politicians and former members of the Bush administration. It might, and I empathize might, be premature to say that any and all prosecutions are off the table. Marc Ambender reports, No Immunity For Bad Faith Interrogators

Senior administration officials  have made it clear to me: neither President Obama’s statement nor Attorney General Holder’s words were meant to foreclose the possibility of prosecuting CIA officers who did NOT act in good faith, or who did not act according to the guidelines spelled out by the OLC.

So it’s not correct to say that the administration granted blanket immunity to anyone.

If you read the memos or scan through Glenn’s highlights, as awful as the treatment was, Occam razor and so forth. It is possible that some CIA official or one of the medical personnel to have exceeded the sadistic guidelines set out by OLC’s Jay Beebee and OLC Chief Steven Bradbury. So if evidence is presented that someone acted in a way that was especially sadistic, there is the possibility of prosecution. Reading through a few other articles, such as this one from AG Eric Holder, Obama does seem intent on taking the let bygones be bygones route, Department of Justice Releases Four Office of Legal Counsel Opinions

Holder also stressed that intelligence community officials who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice, would not face federal prosecutions for that conduct.

The Attorney General has informed the Central Intelligence Agency that the government would provide legal representation to any employee, at no cost to the employee, in any state or federal judicial or administrative proceeding brought against the employee based on such conduct and would take measures to respond to any proceeding initiated against the employee in any international or foreign tribunal, including appointing counsel to act on the employee’s behalf and asserting any available immunities and other defenses in the proceeding itself.

The marginally good news is the current Office of Legal Counsel rejects the opinions put forth by Bush’s OLC,

After reviewing these opinions, OLC has decided to withdraw them:  They no longer represent the views of the Office of Legal Counsel.

In an editorialal response to the memos and Obama’s desire to move on, the NYT ( there is a pro Bush one included) several professors of law chime in. David Cole, a professor at Georgetown University Law Center writes,

They set the C.I.A. loose to slam suspects’ heads into walls up to 30 times in a row, to deprive suspects of sleep for more than a week straight, to confine them to small dark boxes for hours at a time, to slap them repeatedly in the face and abdomen, and to suffocate them with water to induce the perception that they are drowning.
Mr. Obama’s refusal to hold accountable those responsible for the wrongs so evident from the memos is unacceptable.

A child would recognize these tactics as cruel and inhumane. The United States itself treated waterboarding as torture when the Japanese used it against our troops in World War II. Yet through pages and pages of dense legal reasoning, the Office of Legal Counsel lawyers somehow reach the conclusion that these tactics, even when employed in combination and over a 30-day period, are not torture, and not even cruel, inhuman, or degrading.

President Obama should be commended for releasing these memos. But his simultaneous assertion that he will not seek to hold accountable those responsible for the wrongs so evident on the memos’ face is unacceptable. The line C.I.A. agents are not, however, the most culpable. Rather, it is the lawyers and high-level government officials who set this scheme in motion and made it possible. These documents are irrefutable evidence that government officials, including lawyers employed in the Office of Legal Counsel, a Justice Department office meant to serve as the “constitutional conscience” of the Executive Branch, set out to manipulate the law to reach repugnant, illegal results that contravene the very ideals President Obama says must not be sacrificed.

Cole is probably correct about culibility. These memos were written in 2005. We know that the torture started by 2002. Torture done before the 2005 memos were distributed could not have been done in good faith. And that is entertaining the idea that those performing the torture did or could act in good faith. We know that the Army successfully prosecuted a few soldiers for torture – they violated the Military Field manual and claiming they acted under orders was not considered to convey immunity from their actions ( We are also signatories to the Convention Against Torture – Article 2, 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture. 3. 3. An order from a superior officer or a public authority may not be invoked as a justification of torture. ). I tend to think that field operatives and any medical personal that assisted should be prosecuted with grants of limited immunity Where only  the egregious offenders, as Holder mentioned, see jail time. More important perhaps, is that the OLC lawyers and the executive branch who issued the orders be held to account. Some people have inevitably mentioned the Nuremberg trials, as well as Japanese WW II war crimes. I’m going to get into that today; for a good discussion see this post at Anonymous Liberal and the comments. This is over priced at my two cents worth, but Glenn is likely correct on the finer legal point, but A.L. is probably correct about the reality of jury trials.

Just because someone speaks with a certain gravitas, has a “distinguished” resume and went to all the right schools doesn’t mean they are not just as capable and willing to blow smoke up your ass as any ordinary conman. Former Bush administration AG Michael B. Mukasey and former director of the CIA Mike Hayden have a little fun with the truth over at the WSJ, The President Ties His Own Hands on Terror

However, public disclosure of the OLC opinions, and thus of the techniques themselves, assures that terrorists are now aware of the absolute limit of what the U.S. government could do to extract information from them, and can supplement their training accordingly and thus diminish the effectiveness of these techniques…

Its a little disconcerting that Mike and Mike believe this mumbo jumble or they really think that informed Americans do. Simply knowing that we torture has been a recruiting tool for terrorists and has put the journalists and soldiers that they claim to care so much about in greater danger.

It “endangers our soldiers on the battlefield by encouraging reciprocity.” It does “damage to our country’s image” and undermines our credibility in Iraq. (Army Col. Stuart Herrington, a military intelligence specialist)

M&M also repeat another torture myth,

The terrorist Abu Zubaydah (sometimes derided as a low-level operative of questionable reliability, but who was in fact close to KSM and other senior al Qaeda leaders) disclosed some information voluntarily. But he was coerced into disclosing information that led to the capture of Ramzi bin al Shibh, another of the planners of Sept. 11, who in turn disclosed information which — when combined with what was learned from Abu Zubaydah — helped lead to the capture of KSM and other senior terrorists, and the disruption of follow-on plots aimed at both Europe and the U.S.

Its doubtful that the severely mentally disturbed Abu Zubaydah gave up any actionable intelligence under torture. The guy babbled on about tons of things voluntarily, much of it dead ends that could have been found out without torture,

The lessons from Zubaydah and his more noteworthy successors–like Ramzi Binalshibh, an erudite killer who provided little information under extreme duress, and the 9/11 planner Khalid Sheikh Mohammed (K.S.M.), who, according to senior intelligence officials, was told his children would be hurt if he didn’t cooperate–were the long-held lessons of going medieval: whatever jumbled information is swiftly gathered is not worth the high price. To establish what was gathered, Bush, in the East Room, did what has consistently landed him in trouble–take creative liberties with classified information. Specifically, he ran through a simplified progression of how each successful interrogation led to the next capture, another interrogation, another capture and so forth. He put special emphasis on Zubaydah–the insane travel agent–saying that, under duress, he gave interrogators information that identified Binalshibh and “helped lead” to the capture of both Binalshibh and the prized K.S.M. This is the sort of thing that has steadily eroded Bush’s relationship with the intelligence community: presidential sins of omission, or emphasis, that would be clear only if you happened to know lots of classified information. In fact, according to senior intelligence officials past and present, Zubaydah helpfully confirmed that “Mukhtar” was K.S.M.’s code name–something key intelligence officials already suspected–and had nothing to do with identifying Binalshibh, who had come to the attention of investigators a few weeks after 9/11 because he had sent wire transfers to Zacarias Moussaoui.

You can and will see rabid conservative after rabid conservative refer to the non-existent fountain of info Zubaydah provided – hey CIA officials like Hayden even read them off and were recorded for the Congressional record – which in Mikey world makes them true. The nearly twin brother to the Zubaydah myth is that Khalid Sheikh Mohammed (K.S.M.) provided tons of information, but only because he was tortured. No, what made him talk was simply thinking the CIA would kill his children. Bush, Fox, the WSJ, the NYT and assorted rightwing pundits were all too happy to simply repeat Bush’s twisted version of the the swell connection between torture and intelligence. In every instance we know about, torture produced false leads or the information was or could have been obtained without torture. It is after all Mike and Mike’s interest to continue to dishonor America’s humanitarian ideals and the rule of law, since they both did their part to either see those ideals compromised or provide inane legal cover for them.

Newly Released Memo Inadvertently Reveals CIA Held (and Abused) Missing Prisoner

Among the OLC memos released today [1], one appears to inadvertently reveal that a top al-Qaida suspect captured in northern Iraq in January 2004 was held by the CIA in a secret prison.

After Hassan Ghul was arrested in early 2004, President Bush told reporters [2]: “Just last week we made further progress in making America more secure when a fellow named Hassan Ghul was captured in Iraq. Hassan Ghul reported directly to Khalid Sheik Mohammad, who was the mastermind of the September 11 attacks. He was captured in Iraq, where he was helping al Qaeda to put pressure on our troops.”

Military officials and former CIA director George Tenet described Ghul as an al-Qaida facilitator [3] who delivered money and messages to top leaders.

The U.S. government never publicly discussed Ghul again.

Probably most readers of this blog remember that Bush and the Right repeatedly tried to link Iraq to al Qaeda. It was in the administration’s interests to leave the impression that Ghul was simply captured in Iraq, rather then actually captured in Kurdish territory outside of Iraq’s control.

The tea smokers have been trying to hide behind the military, saying the recent DHS report, i.e. Obama’s report, is an insult to veterans. The investigations that suggested that a few vets might be engaged in radical activities started under the Bush administration. In addition, the military itself was investigating such possibilities, Veterans a Focus of FBI Extremist Probe

The FBI documents show the bureau was working with investigators inside the nation’s uniformed services “in an effort to identify those current or former soldiers who pose a domestic terrorism threat.” The other agencies working with the FBI are the U.S. Army Criminal Investigative Division, the U.S. Air Force Office of Special Investigations and the Naval Criminal Investigative Service.