Obama to decide today on torture memos

[Elvis]

Let's have some more proof that the techniques did work (enough to matter). They might have, but let's see some more evidence.

[Kuya]

Dick Cheney seems to like the idea of transparency now.

Last night on “Sean Hannity,” Dick Cheney joined the debate over the four Bush administration “enhanced” interrogation memoranda released last Friday. He said he wanted it to be an “honest debate,” and therefore the Obama administration should release classified documents showing what the interrogations yielded.

“One of the things that I find a little bit disturbing about this recent disclosure is they put out the legal memos, the memos that the CIA got from the Office of Legal Counsel, but they didn’t put out the memos that showed the success of the effort,” he said. . . .

“I’ve now formally asked the CIA to take steps to declassify those memos so we can lay them out there and the American people have a chance to see what we obtained and what we learned and how good the intelligence was.”

In a rare display of Obama-era bipartisanship, Cheney’s call for more document declassification has quickly been endorsed both by usual allies as well as those not usually in sync with the former vice president.

[Tomk]

What do the results have to do with anything? Torture is torture.

I'm bothered by the fact that criminal trials aren't being held and it really isn't helping our cause overseas.

The idea that the Bill of Rights only applies to US citizens negates it's purpose. We can't impose our laws on other countries but we must use them as a guideline for how we treat all humans.

[Lurking Badger]

Nice, seems Obama might persecute those responsible for the interrogations after all.
As in the Nüremberg trials, "following orders", should never be an acceptable excuse. It would be very hypocritical of US to let these actions slip after the involvement in the post wwII trials. Sad thing is those who are ultimately responsible will probably not even be considered accountable, people like mr Cheney.

[Elvis]

Nice, seems Obama might persecute those responsible for the interrogations after all.
As in the Nüremberg trials, "following orders", should never be an acceptable excuse. It would be very hypocritical of US to let these actions slip after the involvement in the post wwII trials. Sad thing is those who are ultimately responsible will probably not even be considered accountable, people like mr Cheney.

Correction. It didn't work @Nuremberg.

It was My Lai. The Medina standard. That's where 'following orders' became a legitimate defense.

EDIT: Read you wrong! My bad. It was the trials of Calley/Medina/etc. where the 'following orders' defense worked though.

[archibaldcrane]

Nice, seems Obama might persecute those responsible for the interrogations after all.

Sauce? edit: here's sauce: Obama: Bush Official Prosecutions Over Torture Memos Possible (VIDEO, TRANSCRIPT)

Also, the always correct about everything Russ Feingold (senator out of Wisconsin) came out with this re: prosecution.

Part of what troubles me are the lawyers -- we should see their law school degrees -- who consciously wrote these memos justifying and explaining full well those outrageous arguments," the Wisconsin Democrat said on Tuesday in reference to the Bush-era torture memos released last week. "I cannot join the president, or his spokesman, or [chief of staff] Rahm Emanuel, who said we aren't going [to prosecute these people]. I can't. I just disagree with them.

It is truly horrifying and unforgivable that anybody operating under the auspices of the United States of America had involvement in any of this," he said. "So I'm not even completely ready to [cede the argument] that people who devised these techniques should be off the hook. I understand the argument. I also remember when people said that they were just following orders. So that troubles me and I am thinking about it.

Then, regarding Obama's statement that he is open to prosecution of some Bush officials:

I am pleased that the president made clear that he has not ruled out investigations or prosecutions of those who authorized torture, or provided the legal justification for it. Horrible abuses were committed in the name of the American people, and we cannot look the other way, or just 'move on.' The final decision will be up to the attorney general and the president, but I urge the Justice Department to take this matter very seriously.

God I love me some Russ Feingold.

[SwampdonkeyPLD]

Archi, in those quotes, is Russ Feingold talking about prosecuting people who gave their opinion?

[Kuya]

More from Salon.com by Mark Benjamin. People this is getting hot.

April 22, 2009 | WASHINGTON -- The Senate Armed Services Committee has just released an exhaustive review of torture under the Bush administration that, among other revelations, torpedoes the notion that the administration only chose torture as a last resort. Bush officials have long argued that they turned to coercive interrogations in 2002 only after captured al-Qaida suspects wouldn't talk, but the report shows the administration set the wheels in motion soon after 9/11. The Bush White House began planning for torture in December 2001, set up a program to develop the interrogation techniques by the next month, and the military and the CIA began training interrogators in coercive practices in early 2002, before they had any high-value al-Qaida suspects or any trouble eliciting information from detainees.

As the report puts it, "The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees." The report undercuts the Obama administration's case for leniency against the CIA, since the agency was pursuing abusive techniques even before Department of Justice lawyers had issued their supposed legal justification for the techniques in August 2002. The report also shows that the administration appears to have attempted to use the abusive techniques to shore up its case for war in Iraq. Interrogators employed the techniques, which are notorious for producing bad intelligence, to get detainees to make statements linking Iraq and al-Qaida.

To set up the torture program, the Department of Defense and the CIA reverse engineered something called SERE training, which was conducted by the JPRA. Based on Cold War communist techniques used to force false confessions, in SERE school elite U.S. troops undergo stress positions, isolation, hooding, slapping, sleep deprivation and, until recently, waterboarding to simulate illegal tactics they might face if captured by an enemy who violated the Geneva Conventions.

Then the CIA got involved. As the report details, the FBI objected to the CIA's treatment of Zubaydah, calling it "borderline torture," and pulled out, leaving the CIA to do as it pleased. The exact date of handoff from FBI to CIA is unclear.

The Justice Department opinion condoning abusive interrogations did not come out until August, eight months after the Bush administration started putting the program together and presumably well after Zubaydah's torture had begun.

News reports have already shown that as the Bush administration considered abusive techniques, military attorneys warned they might be illegal. The Senate report also brims with early warnings from various quarters that torture is a relatively ineffective intelligence-gathering tool.

An Oct. 2, 2002, Army memo for the general in charge of Guantánamo at the time discussed the use of SERE techniques at GTMO. It included the warning, "Experts in the field of interrogation indicate the most effective interrogation strategy is a rapport-building approach." A lieutenant colonel who had helped organize SERE training for interrogators also sent a warning attached to that memo that, "If individuals are put under enough discomfort, i.e. pain, they will eventually do whatever it takes to stop the pain. This will increase the amount of information they will tell the interrogator, but it does not mean the information is accurate," he wrote. "In fact, it usually decreases the reliability of the information because the person will say whatever he believes will stop the pain." Of course, by then the administration had already made up its mind.

The Bush administration's motives for employing the harsh techniques are also called into question by the report. The Bush administration has argued publicly that it got tough on detainees to prevent another al-Qaida attack. The Senate report describes another possible motive, and a sobering example of how torture can produce bad intelligence.

"While we were there a large part of the time we were focused on trying to establish a link between al Qaida and Iraq and we were not being successful in establishing a link between al Qaida and Iraq," Army psychiatrist Maj. Paul Burney is quoted in the Senate report as saying about Guantánamo. "The more frustrated people got in not being able to establish this link ... there was more and more pressure to resort to measures that might produce more immediate results."

Apparently, one of the individuals applying pressure for results was then-Deputy Secretary of Defense Paul Wolfowitz, a major advocate of the Iraq invasion. Wolfowitz called the man in charge of Guantánamo at the time, Maj. Gen. Michael Dunlavey. Wolfowitz called "to express concerns about the insufficient intelligence production" at Guantánamo, the report says. Wolfowitz suggested the use of more aggressive interrogation techniques. The report cites the Guantánamo interrogation chief at that time, David Becker, as the source of this information about Wolfowitz. Dunlavey, however, told the Senate investigators he could not recall the Wolfowitz call.

The Bush DOJ did ultimately produce a formal stamp of approval for the techniques. An August 2002 memo released by the Obama White House last week shows Assistant Attorney General Jay Bybee of the Office of Legal Counsel providing a legal rationale for waterboarding. That memo and several others were meant to act as a "golden shield," protecting interrogators. And President Obama has said that the DOJ's legal sanction for abusive interrogations should provide some cover from prosecution. "It is our intention," he said last week, "to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution." Attorney General Eric Holder said, "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department." Chief of Staff Rahm Emanuel added over the weekend, on ABC's "This Week," that the indemnity extends to high-level Bush administration officials who orchestrated the abuse.

My dear friends, it seems that these torture techniques that we needed so much to stop terrorist attacks were actually used to produce evidence linking Al-Qaida to Iraq, and these torture techniques they were using... were originally torture techniques used by communist interrogators to get false confessions to use as propaganda!

This is fucking rich!

[archibaldcrane]

Archi, in those quotes, is Russ Feingold talking about prosecuting people who gave their opinion?

Not exactly sure who he is targeting, but I think that the lawyers who gave the bullshit opinion of "yeah, yeah I think we can spin this torture as not legally torture" would be among them, yes, since those legal "opinions" were a necessary part of implementing these torture techniques - the justice dept. had to give the go-ahead.

I assume you meant lawyers giving legal opinions when you said opinions right?

[SwampdonkeyPLD]

Not exactly sure who he is targeting, but I think that the lawyers who gave the bullshit opinion of "yeah, yeah I think we can spin this torture as not legally torture" would be among them, yes, since those legal "opinions" were a necessary part of implementing these torture techniques - the justice dept. had to give the go-ahead.

I assume you meant lawyers giving legal opinions when you said opinions right?

Yes. Now do you really think people should be prosecuted for their opinions? These weren't even policy makers, just opinion givers.

[Kuya]

Yes. Now do you really think people should be prosecuted for their opinions? These weren't even policy makers, just opinion givers.

This morning, I conducted a 20-minute interview with Nowak -- which can be heard by clicking PLAY on the recorder below -- regarding the specific legal obligations of the U.S. to provide accountability for crimes of torture; how Obama's invocation of the "state secrets privilege" to block torture victims from having a day in court independently violates the Convention; and the detrimental impact that will result for the U.N.'s ability to hold torturers around the world accountable (which is Nowak's prime mandate) if the U.S. announces to the world that its own political leaders who systematically ordered torture will be shielded from all accountability.

On a quite related note, international law professor Kevin Jon Heller -- who in the past questioned the argument, made among others by Scott Horton, that prosecutions of Bush DOJ lawyers who authorized torture find precedent in the Nuremberg prosecutions (as part of the Justice Case) of German lawyers who declared various war crimes to be legal -- today writes about a separate set of prosecutions by the Nuremberg Military Tribunal, as part of The Ministries Case, in which German officials were prosecuted for doing nothing other than stating, when asked, that they had no objection to the deportation of 5,000 Jews from France. These officials, who were convicted at Nuremberg, did not order the deportation or carry it out; rather, they merely failed, when asked, to object to the policy on the ground that it violated international law. Professor Heller argues that this case provides an almost perfect precedent for holding OLC torture-authorizing officials accountable (emphasis in original):

The parallels between the Foreign Office’s role in the SS deportations and the OLC’s role in the CIA’s torture regime are uncanny. Nothing is lost if we simply substitute "Yoo, Bybee, and Bradbury" for "Woermann and von Weizsaecker," "OLC" for "Foreign Office," and "torture" for "deportations."

Indeed, in one critical respect, the case against the authors of the OLC memos is even stronger than the case against von Weizsaecker and Woermann. The latter’s criminal participation in the deportations consisted solely of omissions -- failing to point out that the deportations violated international law. The former’s criminal participation in the CIA’s torture regime, by contrast, consists of both acts and omissions, because Yoo, Bybee, and Bradbury not only failed to point out that the torture regime violated international law (and US law, as well), they crafted legal arguments to conceal the illegality of that regime.

This is as to your contention that they were just stating opinions. They indeed can be prosecuted for not only not opposing something which was mostly clearly illegal, specifically in a written statement regarding the torture, but also trying to give it legal backing. As mentioned here, they actually have higher chances of being prosecuted than the German officials themselves.

[Beckwin]

I don't see anything about Feingold wanting to prosecute people for their opinions; he's simply expressing his disgust with their conduct.

And yeah, this whole Cheney thing has neocons hooting and hollering "neener neener we told you so!" but it's all fucking ridiculous. Even putting aside the forcing statements that jive with the lies leading to Iraq, the whole idea of the ends absolutely justifying the means is astonishingly bad.

To draw a parallel, it's like that Joe Whatshisname from Texas shooting the robbers in the back: yes, it "worked"- he didn't suffer any harm himself at the hands of criminals. Yet still, his conduct was pretty awful and there were most certainly more "humane" or "civilized" ways of handling it. But the ends justify the means.... I find it funny how conservatives, so supposedly and self-proclaimedly principled (especially on individual rights) are so quick to abandon them.......

[Beckwin]

addendum: although if their "opinions" were giving consent and orders/setting policy to do something... then yeah, they'd be fair game.

there is a difference between an opinion and a legal opinion.

[Beckwin]

for example if a corporate lawyer writes an opinion that can be tied to some sort of collusion or insider trading, they could certainly be held accountable. it's not like it's prosecuting for a free-speech sort of opinion.

[Kuya]

As stated previously by what i quoted:

The Bush DOJ did ultimately produce a formal stamp of approval for the techniques. An August 2002 memo released by the Obama White House last week shows Assistant Attorney General Jay Bybee of the Office of Legal Counsel providing a legal rationale for waterboarding. That memo and several others were meant to act as a "golden shield," protecting interrogators. And President Obama has said that the DOJ's legal sanction for abusive interrogations should provide some cover from prosecution. "It is our intention," he said last week, "to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution." Attorney General Eric Holder said, "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department." Chief of Staff Rahm Emanuel added over the weekend, on ABC's "This Week," that the indemnity extends to high-level Bush administration officials who orchestrated the abuse.

These legal opinions were used as posteriori justification for the illegal acts and is essentially an attempt to aid and abet illegal activity. They are most certainly culpable.

[Kuya]

Have you guys heard about Former State Department Legal Advisor Philip Zelikow's counter memo? He apparently argued that the reasoning for justifying torture in the memos were extremely weak and so he apparently made a counter-memo to inform the administration that these justifications would not hold in court, he did this in 2005, and now seemingly it is being alleged that the administration destroyed this memo on the basis of plausible deniability. That is, the denying that they received expert legal counsel that what they were doing was illegal and the reasons would not hold in court. I haven't got much else out of this; any of you got any info?

[SwampdonkeyPLD]

Well if opinions can be prosecuted let's prosecute Nancy Pelosi for her concern/opinion that "they weren't doing enough". Surely people in the CIA acted upon that when they heard that.

[0ni0n]

There's a poll on WSJ today indicating that 75% people voted would prefer the obama administration not to go any further regarding the prosecution of former bush officials. Personally, i am baffled as to what legal prosecution will accomplish when we are in the amidst of economic woes.

[Bingbong]

There's a poll on WSJ today indicating that 75% people voted would prefer the obama administration not to go any further regarding the prosecution of former bush officials. Personally, i am baffled as to what legal prosecution will accomplish when we are in the amidst of economic woes.

It'll make that meanie George Bush look bad.

amirite?

Addendum: Congress was briefed multiple times on what the CIA was doing, and didn't raise objection. So was it ok then, but not now? Congress was briefed between 2002 and 2006 on these practices without an objection, or threat to pull funding.

[0ni0n]

He already looks bad by a blunder tantamount to that of Nixon. Remember Nixon say he's not a crook? Bush is caught saying that we do not torture and now is implicated by the publicized memos. Bush and Cheney ending up in jail or in court is highly unlikely if not politically impossible.