Torturing Americans

Until about six years ago in the US we shared a broad consensus that torture was reprehensible, unjustifiable, illegal, and un-American. Then the public learned that the Bush administration allowed, then that it ordered the cruel treatment and torture of prisoners overseas. Hundreds of years of consensus suddenly began to unravel as Bush’s supporters sought to excuse these horrors. Led by Dick Cheney, who holds that the application of water torture against suspected terrorists is “a no-brainer”, Republicans boldly advocated for increased use of prisoner abuse. Reputable pollsters now regularly ask the US public whether they support torture, something which is prohibited under federal law as well as international treaties.

Central to the new enthusiasm for torture and cruelty – aside from a culture that celebrates sadism and an utter disregard for the rule of law – is the quaint notion that such abuse will be meted out only to foreigners. Torture’s cheerleaders imagine, or would have others imagine, that an impenetrable bulwark of some sort protects Americans from suffering similar abuse at the hands of our own government. That’s historically naivete on a grand scale.

But it’s also wrong as a matter of law. We’ve known or should have realized that long ago. Furthermore, it’s wrong too as a matter of fact. It turns out that two US citizens who voluntarily acted as whistleblowers to the FBI were, for that reason, imprisoned by the government, held incommunicado and without charge, and subjected to the now standard forms of prisoner abuse.

(i) First, let’s talk about the legal standing of the cruel mistreatment of prisoners, thanks to the practices of the Bush administration. The US public does not seem to realize that the infamous “enhanced interrogation techniques” may be applied against Americans because the federal government has determined that they are neither torture nor cruel, inhuman, or degrading treatment (a determination never over-ruled in law). Can an American arrested for conspiracy to defraud, say, be subjected to hypothermia and “stress positions”? I’d venture that he may.

The “torture memo” authors created a golden shield for any government official who inflicted those EITs on prisoners by arguing that the techniques do not qualify as torture under US statute, nor do they meet the constitutional standard of cruel or unusual punishment. The latter ought to be particularly worrying for Americans.

The question arose because when Congress ratified the UN Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment (CAT), it attached several reservations and understandings to the ratification. One of these concerned Article 16, which requires signatory states to prevent (without exception) the cruel, inhuman, or degrading treatment of prisoners held under their jurisdiction. The Congressional reservation declared that the prohibitions outlined in Article 16 were already covered by the US Constitution’s guarantees against cruel and unusual punishment (the 5th, 8th, and 14th Amendments), and therefore the US would treat Article 16 as a reassertion of those constitutional guarantees.

Even though the Bush administration and its “torture memo” authors argued that the Constitution does not apply to non-American prisoners held abroad (a position the Supreme Court rejected), it did have to admit that the CAT does apply to them. Therefore it could not inflict mistreatment that violated Article 16, that is to say, that violated the Constitutional ban on cruel and unusual punishment. The “enhanced interrogation techniques”, so argued the Bush administration, did not rise to the level of cruel and unusual punishment.

That is a long way of saying what few in the US dare to acknowledge: That if the government could apply those forms of abuse to non-American prisoners, then it can use the same legal rationale for abusing American prisoners in similar fashion. Any prisoners…for the Constitutional protections don’t have exceptions based on time or place or circumstances. If it wasn’t cruel to subject prisoners at Gitmo to prolonged sleep deprivation and waterboarding, then in principle it would not be cruel to do the same to a common criminal suspect.

(ii) As a matter of fact, Americans citizens have already been subjected to these cruel techniques. Through a federal lawsuit directed against Donald Rumsfeld that is now set to proceed, we learn more (via) about two FBI whistleblowers working in Iraq who were imprisoned in 2006 and mistreated by US forces, though the US military was fully aware of who the two men were. The details of their allegations are laid out in this March 5 ruling by US District Judge Wayne Andersen (PDF). The Judge rejected Rumsfeld’s attempt to have the lawsuit dismissed, holding that his qualified immunity from being sued for his actions as Defense Secretary did not indemnify him against a legitimate complaint such as this one.

Allegedly the two men, Donald Vance and Nathan Ertel, began working with the FBI to expose corruption by the contractor they were working for in Iraq, Shield Group Security. When SGS all but held Vance and Ertel hostage outside the Green Zone, two US officials they were working with in Iraq arranged for the US military to rescue them. Back in the US Embassy, they then gave further evidence of SGS corruption to an FBI agent and two Air Force intelligence officers.

A few hours later, however, the US military arrested Vance and Ertel, took them to two successive military camps, and began subjecting them to various forms of abuse approved by the Bush administration: strip searching, prolonged solitary confinement, violence (being slammed into a wall), threats of violence, threats of indefinite detention, false allegations, psychological manipulation, extreme temperatures, sleep deprivation, extremes of sound and light, yelling, denial of food, water, and medical care. In other words, they were subjected to many of the standard “enhanced interrogation techniques”.

Vance and Ertel were refused permission to see an attorney, and were told that they were being held as “security internees”. They were given a kangaroo court hearing at which they were denied attorneys, denied the right to know the evidence against them, denied the right to confront witnesses against them, and their requests to have witnesses and evidence introduced on their behalf was denied as well. Nor could they testify for each other.

Ertel was held for a further three weeks, Vance for nearly three months, after these hearings. Neither were ever charged with any crimes.

They are suing Rumsfeld because he specifically and repeatedly (in 2002 and 2003) authorized the interrogation techniques that were applied to them while in US military custody. They also charge Rumsfeld with denying their due process rights.

Judge Andersen found that the plaintiffs made a sufficiently compelling case that Rumsfeld is accountable for these alleged abuses that the case should go forward. With particular regard to their allegations of physical and psychological abuse while in custody, his ruling, he declared, …

…represents a recognition that federal officials may not strip citizens of well-settled constitutional protections against mistreatment…

Andersen may be right that the issue of mistreatment of prisoners has been, well, settled in law. Whether it is also settled in public opinion any longer, however, is more a matter of debate.

Perhaps if this suit against Rumsfeld does go to trial, American citizens will finally begin to comprehend that if torture and cruelty is suitable for anybody, then it is suitable for everybody.

crossposted at unbossed.com

Yet another White House domestic propaganda scandal

Over and over the Bush administration has been caught engaging in illegal domestic propaganda. To generate public support for the invasion of Iraq, they paid retired military officers to repeat administration talking points as pundits on TV. They paid newspaper columnists to parrot administration policy positions. They distributed free fake "news reports" to local TV and radio stations. All of it covert domestic propaganda, all of it patently illegal however much the Bush administration's Office of Legal Counsel doth protest.

Now we learn of another element in this propaganda machine. A former program manager at a right-wing talk radio station in Milwaukee, Dan Shelley, reveals that the Bush White House sent out propaganda daily to talk-radio contacts. That's entirely and sadly predictable, as well as illegal.

Here Shelley is speaking of two of the talk show hosts, Charlie Sykes and Jeff Wagner, whose programs he managed at WTMJ until he left the station in 2006. His larger point is that these conservative radio hosts rarely criticize Bush or the Republicans on air - and then only strategically (in order to maintain the appearance of independent thinking) "without appreciably harming the president or party".

Yet while talk show audiences aren’t being led like lemmings to a certain conclusion, they can be carefully prodded into agreement with the Republican views of the day.

Conservative talk show hosts would receive daily talking points e-mails from the Bush White House, the Republican National Committee and, during election years, GOP campaign operations. They’re not called talking points, but that’s what they are. I know, because I received them, too. During my time at WTMJ, Charlie would generally mine the e-mails, then couch the daily message in his own words. Midday talker Jeff Wagner would be more likely to rely on them verbatim. But neither used them in their entirety, or every single day.

The production and dissemination of these talking points for conservative talk radio, centralized for long periods at the White House, almost certainly used taxpayer funds and government property. Hence Bush's propaganda central would at a minimum be in violation of the Congressional prohibition against using appropriated funds for unauthorized domestic "publicity and propaganda". Since 1951, the prohibition has been attached annually as a rider to the Consolidated Appropriations Act.

"No part of any appropriation contained in this or any other Act shall be used for publicity or propaganda purposes within the United States not heretofore authorized by the Congress."

Can there be any doubt that this is just another aspect of a broad effort by the Bush administration to use the resources of government to propagandize the American public? Even if the rider leaves some room for interpretation, the general boundaries of prohibited behavior are clear.

As explained in a March 21, 2005 report by the Congressional Research Service, "publicity or propaganda" is defined by the U.S. Government Accountability Office (GAO) to mean either (1) self-aggrandizement by public officials, (2) purely partisan activity, or (3) "covert propaganda." By covert propaganda, GAO means information which originates from the government but is unattributed and made to appear as though it came from a third party.

The dissemination of Bush administration talking points secretly to Republican talk show hosts, in the expectation that the hosts would repeat those arguments as if they were their own, meets all three GAO criteria for prohibited "publicity or propaganda". They promoted George Bush and his political views. They were an integral part of the Republican partisan machinery. And they did these things covertly rather than openly.

It is the covertness of the talking-points operation that shows most conclusively that the White House knew it was engaged in domestic propaganda. Indeed in a 2005 memo the Office of Legal Counsel noted that in 1988 it had determined that "covert attempts to mold opinion through the undisclosed use of third parties" violated the prohibition against using appropriated funds for "propaganda".

The 1988 OLC memo arose in connection to the controversy over the Reagan administration's backing of the Contras. The memo described what kind of information the government was permitted to disseminate:

[It] "can make available to private groups, upon request, printed materials that explain and justify the Administration's position on Contra aid. These materials must be items that were created in the normal course of business and not specifically produced for use by these private groups."

The OLC memo went on:

It would be unwise, however, for the Administration to solicit the media to print articles by or interviews with anyone not serving in the government. And, of course, the Administration cannot assist in the preparation of any articles or statements by private sector supporters, other than through the provision of informational materials as described in the preceding paragraph.

In supplying talking points written not in the course of normal business, but specifically to influence statements made by private-sector supporters in the media, the Bush administration has done exactly what the OLC in 1988 determined that the president may not legally do. It couldn't be clearer that the White House has engaged in illegal domestic propaganda.

For that matter, I don't believe it was only the White House that engaged in sending talking points to right-wing talk radio hosts during the last 8 years. Long time readers of Inconvenient News may recall that in July 2006 I demonstrated that Donald Rumsfeld's Pentagon was sending out talking points to conservative radio talk show hosts. Specifically, I thought I could prove with a high degree of probability that the DoD was sending lists of questions/issues that the hosts should ask Rumsfeld about in upcoming on-air interviews. These included, in particular, the information that Rumsfeld wanted to be asked about a thoroughly cynical, feel-good website he'd created, AmericaSupportsYou.mil.

The Pentagon operation was a part of the Bush administration's domestic propaganda network, I was sure of it. It's no surprise, then, to find a radio talk show manager confirming that Republican hosts regularly received such guidance direct from Washington about the issues the Republican officials wanted discussed on air.

crossposted at unbossed.com

"I thought they wanted to know."

In the upcoming New Yorker, Seymour Hersh portrays the outright hostility with which Rumsfeld's Pentagon greeted the exacting and judicious report about Abu Ghraib written by Major General Antonio Taguba (h/t to Welcome to Pottersville). Even if you thought you knew how low down and rotten so much of the military leadership had become under that despicable man, you'll find elements in this story that will surprise you.

Hersh has been covering the Abu Ghraib scandal since the spring of 2004.

The forthcoming article is based on a series of interviews from earlier this year, after Taguba retired. It is a must read, so I will quote just a few selections.

Taguba told me that he understood when he began the inquiry that it could damage his career; early on, a senior general in Iraq had pointed out to him that the abused detainees were “only Iraqis.” Even so, he was not prepared for the greeting he received when he was finally ushered in.

“Here . . . comes . . . that famous General Taguba—of the Taguba report!” Rumsfeld declared, in a mocking voice. The meeting was attended by Paul Wolfowitz, Rumsfeld’s deputy; Stephen Cambone, the Under-Secretary of Defense for Intelligence; General Richard Myers, chairman of the Joint Chiefs of Staff (J.C.S.); and General Peter Schoomaker, the Army chief of staff, along with Craddock and other officials. Taguba, describing the moment nearly three years later, said, sadly, “I thought they wanted to know. I assumed they wanted to know. I was ignorant of the setting.”

In the meeting, the officials professed ignorance about Abu Ghraib. “Could you tell us what happened?” Wolfowitz asked. Someone else asked, “Is it abuse or torture?” At that point, Taguba recalled, “I described a naked detainee lying on the wet floor, handcuffed, with an interrogator shoving things up his rectum, and said, ‘That’s not abuse. That’s torture.’ There was quiet.”

Rumsfeld was particularly concerned about how the classified report had become public. “General,” he asked, “who do you think leaked the report?” Taguba responded that perhaps a senior military leader who knew about the investigation had done so. “It was just my speculation,” he recalled. “Rumsfeld didn’t say anything.”

It seems pretty clear that Rumsfeld believed Taguba had leaked the report, and in any case, for Rumsfeld as for other members or the ruling triumvirate, the leaks are what matter—not the wrong-doing. In that kind of climate, it's perfectly understandable that Pentagon insiders more and more began to leak reports about criminal investigations, from Abu Ghraib to Haditha. The expectation of many must have been that, without public knowledge of the outrageous facts, the reports would likely get deep-sixed.

When Taguba urged one lieutenant general to look at the photographs, he rebuffed him, saying, “I don’t want to get involved by looking, because what do you do with that information, once you know what they show?”

That almost speaks for itself about the corrupt climate in Rumsfeld's Pentagon.

We were told by Hersh after the story first broke that many of the abuses in Abu Ghraib were much worse than what the public knew.

I learned from Taguba that the first wave of materials included descriptions of the sexual humiliation of a father with his son, who were both detainees. Several of these images, including one of an Iraqi woman detainee baring her breasts, have since surfaced; others have not...Taguba said that he saw “a video of a male American soldier in uniform sodomizing a female detainee.” The video was not made public in any of the subsequent court proceedings, nor has there been any public government mention of it.

Hersh documents that the Pentagon was informed repeatedly over months (beginning on Jan. 15, 2004) about the evidence that had been uncovered and the confessions obtained from guards. Thus Rumsfeld lied to Congress about what he knew.

Rumsfeld, in his appearances before the Senate and the House Armed Services Committees on May 7th, claimed to have had no idea of the extensive abuse. “It breaks our hearts that in fact someone didn’t say, ‘Wait, look, this is terrible. We need to do something,’ ” Rumsfeld told the congressmen. “I wish we had known more, sooner, and been able to tell you more sooner, but we didn’t.”

Rumsfeld told the legislators that, when stories about the Taguba report appeared, “it was not yet in the Pentagon, to my knowledge.” As for the photographs, Rumsfeld told the senators, “I say no one in the Pentagon had seen them”; at the House hearing, he said, “I didn’t see them until last night at 7:30.” Asked specifically when he had been made aware of the photographs, Rumsfeld said:

There were rumors of photographs in a criminal prosecution chain back sometime after January 13th . . . I don’t remember precisely when, but sometime in that period of January, February, March. . . . The legal part of it was proceeding along fine. What wasn’t proceeding along fine is the fact that the President didn’t know, and you didn’t know, and I didn’t know.

“And, as a result, somebody just sent a secret report to the press, and there they are,” Rumsfeld said...

It distressed Taguba that Rumsfeld was accompanied in his Senate and House appearances by senior military officers who concurred with his denials.

That's what Rumsfeld encouraged: Omertà.

A few weeks after his report became public, Taguba, who was still in Kuwait, was in the back seat of a Mercedes sedan with Abizaid. Abizaid’s driver and his interpreter, who also served as a bodyguard, were in front. Abizaid turned to Taguba and issued a quiet warning: “You and your report will be investigated.”

“I wasn’t angry about what he said but disappointed that he would say that to me,” Taguba said. “I’d been in the Army thirty-two years by then, and it was the first time that I thought I was in the Mafia.”

Taguba shares his thoughts as well about who inside Abu Ghraib was aware of the torture even before MP Joseph Darby spilled the beans.

Taguba came to believe that Lieutenant General Sanchez, the Army commander in Iraq, and some of the generals assigned to the military headquarters in Baghdad had extensive knowledge of the abuse of prisoners in Abu Ghraib even before Joseph Darby came forward with the CD. Taguba was aware that in the fall of 2003—when much of the abuse took place—Sanchez routinely visited the prison, and witnessed at least one interrogation. According to Taguba, “Sanchez knew exactly what was going on.”

Taguba also faults M. Gen. Geoffrey Miller for bringing Guantanamo-style abuses to Abu Ghraib. Hersh adds that Miller's activities at Gitmo were investigated later by Air Force Lt. Gen. Randall Schmidt, whose report recommended that Miller be admonished for abusive interrogation techniques. But higher-ups, including the Pentagon Inspector General, over-ruled Schmidt and all but ignored his factual findings.

Taguba had known Miller for years. “We served together in Korea and in the Pentagon, and his wife and mine used to go shopping together,” Taguba said. But, after his report became public, “Miller didn’t talk to me. He didn’t say a word when I passed him in the hallway.”

And that was the overall story of Taguba's career after he filed his report on Abu Ghraib. He became a ghost walking the halls of the Pentagon. In Jan. 2006, was told brusquely that he had to retire within the year; no reason was given.

And why was that? Because he refused to help the others to cover up the truth about the mission that Gen. Miller was given in Iraq, and about the Pentagon's awareness of wrongdoing there. Because he was shattering the glass wall of plausible deniability about all manner of illegal DoD and CIA operations authorized with a wink and a nod by Rumsfeld and Bush.

Taguba, looking back on his testimony, said, “That’s the reason I wasn’t in their camp—because I kept on contradicting them. I wasn’t about to lie to the [Congressional] committee. I knew I was already in a losing proposition. If I lie, I lose. And, if I tell the truth, I lose.”...

“They always shoot the messenger,” Taguba told me. “To be accused of being overzealous and disloyal—that cuts deep into me. I was being ostracized for doing what I was asked to do.”

Taguba went on, “There was no doubt in my mind that this stuff”—the explicit images—“was gravitating upward. It was standard operating procedure to assume that this had to go higher. The President had to be aware of this.”

Right after he filed his report on Abu Ghraib, Taguba's expected promotion was blocked.

Later in 2004, Taguba encountered Rumsfeld and one of his senior press aides, Lawrence Di Rita, in the Pentagon Athletic Center. Taguba was getting dressed after a workout. “I was tying my shoes,” Taguba recalled. “I looked up, and there they were.” Rumsfeld, who was putting his clothes into a locker, recognized Taguba and said, “Hello, General.” Di Rita, who was standing beside Rumsfeld, said sarcastically, “See what you started, General? See what you started?”

What Gen. Tabuba started, in point of fact, became a lengthy cover-up in which no senior military officials have ever been penalized. Hersh's article documents this aspect of the scandal also, including several egregious examples of denying the facts. Brig. Gen. Richard Formica, head of Camp Nama (a detention camp at Baghdad Airport), comes in for particular discredit.

The official inquiries consistently provided the public with less information about abuses than outside studies conducted by human-rights groups.

Which is why it's critical to keep drawing public attention to these human-rights reports, as we've tried to do here.

crossposted from Unbossed

Court of Appeals: Due process = Presumption of innocence

The Court of Appeals in Virginia handed down another devastating rebuke of the Bush administration's lawless treatment of terrorism-suspects. It's not too grandiose to say that this ruling also demonstrates why due process is inextricably linked to the presumption of innocence.

Here's a spare narrative of the events: In December 2001 federal agents arrested Ali Saleh Kahlah al-Marri, a citizen of Qatar who was enrolled as a graduate student in Illinois, and eventually began to prosecute him for bank/credit card fraud. It alleged he was an agent of Al Qaeda. At long last, on Friday, June 20, 2003 the court scheduled a hearing on pre-trial motions.

Then on Monday, June 23, 2003 Bush abruptly declared al-Marri to be an "enemy combatant" and ordered him to be transferred to a Navy brig in South Carolina. Prosecutors asked the Illinois court to dismiss the indictment, which it did with prejudice (meaning the government could not refile the charges). Al-Marri was spirited off to Charleston, where he was held incommunicado for 16 months and, he says, interrogated abusively, threatened, and tortured via sensory deprivation. The administration has continued to insist that al-Marri is a member of Al Qaeda.

In the ruling today, the Court directed that the Pentagon must either prosecute al-Marri for a crime, deport him, imprison him as a material witness, or release him "within a reasonable period of time". "But military detention of al-Marri must cease."

As the Court observed, President Bush had abused his authority as Commander in Chief of the armed forces to deprive suspects of their civil rights by transferring them illegitimately into military custody.

“To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them “enemy combatants,” would have disastrous consequences for the Constitution -- and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power -- were a court to recognize it -- that could lead all our laws “to go unexecuted, and the government itself to go to pieces.” We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.”

The core issue was why the government had begun al-Marri's prosecution only to transfer him without explanation to a Navy brig and interrogate him in secret, while denying him access to civil courts and charging him with nothing. The administration has never explained that sudden reversal. Al-Marri asserts that the government feared to proceed with the trial.

Marty Lederman highlights this section from today's ruling:

The Government’s treatment of others [in the criminal justice system] renders its decision to halt al-Marri’s criminal prosecution -- on the eve of a pre-trial hearing on a suppression motion -- puzzling at best. Al-Marri contends that the Government has subjected him to indefinite military detention, rather than see his criminal prosecution to the end, in order to interrogate him without the strictures of criminal process. We trust that this is not so, for such a stratagem would contravene Hamdi’s injunction that "indefinite detention for the purpose of interrogation is not authorized." 542 U.S. at 521. We note, however, that not only has the Government offered no other explanation for abandoning al-Marri’s prosecution, it has even propounded an affidavit in support of al-Marri’s continued military detention stating that he "possesses information of high intelligence value." See Rapp Declaration. Moreover, former Attorney General John Ashcroft has explained that the Government decided to declare al-Marri an "enemy combatant" only after he became a "hard case" by "reject[ing] numerous offers to improve his lot by . . . providing information." John Ashcroft, Never Again: Securing America and Restoring Justice 168-69 (2006).

In other words, the administration decided that the man's habeas corpus rights meant nothing when balanced against the desirability of interrogating him at leisure and in any fashion it wished.

Lederman also notes that the timing of the transfer was suspicious in another way as well. On April 4, 2003 the Defense Department Working Group report on detainee interrogations was issued, asserting preposterously that the Commander in Chief could cite "necessity" and "self defense" as grounds for ordering illegal and abusive interrogations. This was the work mostly of several nuts who then infested the Office of Legal Counsel; it was based upon the infamous Bybee memo of August 1, 2002. The Working Group report was rushed out in order to thwart the attempts by military lawyers to put a stop to the illegal abuse of prisoners at Guantanamo. As far as Rumsfeld was concerned, from April 4, 2003 it was full steam ahead with nearly every conceivable form of abusive interrogation.

And it was in June 2003 that the civil trial of al-Marri was abruptly abandoned, and he was transferred to the Charleston naval brig.

As the Court of Appeals stressed, the purpose of military detention is "to prevent the captured individual from serving the enemy." There was no justification for handing al-Marri over to the military because he was already under arrest and awaiting trial.

The obvious purpose for declaring al-Marri an "enemy combatant", whatever that is (the term was invented by the Bush administration to cloak an abundance of abuses), and throwing him into a military brig incommunicado, was to abuse and degrade him until he "confessed" whatever the government wanted him to confess to.

That's the way things used to be done in the former Soviet Union. In the US, however, we cherish the presumption of innocence and other liberties that go hand in hand with it—the right not to incriminate oneself and, above all, due process. Today's ruling struck a blow for them.

crossposted from Unbossed