Month: April 2009

Should They Be Prosecuted?

by digby

Impeach The Torture Judge

by digby

It’s not just a bunch of DFHs. Some of the best minds in the legal profession agree:

Impeach Jay Bybee: Why should a suspected war criminal serve as a federal judge?

By Bruce Ackerman

Jay Bybee is currently sitting on the 9th U.S. Circuit Court of Appeals in San Francisco. As assistant attorney general in President George W. Bush’s Justice Department, he was responsible for the notorious torture memos that enabled the excesses at Abu Ghraib, Guantanamo, and other places. While John Yoo did most of the staff work for Bybee, Yoo was barely 35 years old—and his memos showed it. They not only took extreme positions; they were legally incompetent, failing to consider many of the most obvious counterarguments.

Bybee was 49. He was the grown-up, the seasoned jurist. He had been a law professor and had served as associate counsel to President Bush. When he was promoted to head the Justice Department’s Office of Legal Counsel, he became the final judge of legal matters within the executive branch. Yet his opinion on torture was so poorly reasoned that it was repudiated by his very conservative successor, Jack Goldsmith.

Bybee has never been held accountable for his distortions of the law. At the time of his confirmation hearing, news of the torture memos had not yet leaked to the public. When asked about his role in national security matters at his Senate hearing, Bybee stonewalled: “As an attorney at the Department of Justice, I am obliged to keep confidential the legal advice that I provide to others in the executive branch. I cannot comment on whether or not I have provided any such advice and, if so, the substance of that advice.”

If the Senate had known the truth, it would have rejected him. The story of William Haynes offers a cautionary tale. As general counsel of the Department of Defense, Haynes also played a key role in authorizing torture; and he was also rewarded by a nomination to a leading appellate court. But before he could be confirmed, the Bush administration’s involvement in torture became a matter of public record, and the Senate refused its consent to the nomination. Bybee is a judge today only because of timing and the administration’s assertions of executive privilege.

This is unacceptable. The president can rightly claim privilege for his conversations with his confidential advisers. He needs their candid opinions and won’t get them if they aren’t assured of confidentiality. But Bybee wasn’t a presidential confidant. He was the head of a division of the Justice Department that gives authoritative legal guidance to the entire bureaucracy. It goes too far to suggest that the opinions he issued in this role are privileged. This would permit the creation of a world worthy of Franz Kafka—in which the bureaucracy operated under secret rules that bore no obvious relationship to the statutes passed by Congress. Bybee’s refusal to reveal his role at his Senate hearing should not insulate his actions from further scrutiny.

Under the Constitution, impeachment requires a finding of “high crimes and misdemeanors.” This is a high standard. Although Bybee’s opinion fails minimum tests of legal competence, he may have acted in good faith. This should protect him from conviction. But his legal distortions might also be evidence of the abdication of his fundamental legal responsibilities. Instead of engaging in a good-faith interpretation of the War Crimes Act and the Geneva Conventions, he may have merely been responding to political pressures from the White House to liberate the CIA and the military from the rule of law.

Bybee should, of course, be given a full opportunity to clarify this matter at the impeachment proceedings. But at present, his only public explanation is his extravagant appeal to executive privilege. This cannot suffice. He should be required to take personal responsibility for his actions and explain why they don’t make him into a systematic enabler of the war crimes that have disgraced America.

Impeachment should not be confused with criminal prosecution. The Constitution does not permit the Senate to throw Bybee in jail. If it convicts him, the Senate can only remove Bybee from office and disqualify him from future service in “any office of honor, trust, or profit under the United States.” His impeachment is not a prelude to a sweeping political vendetta. It focuses on a very particular problem: Jay Bybee may serve for decades on one of the highest courts in the land. Is his continued service consistent with his role in the systematic perpetration of war crimes?

This is an issue for Congress, not President-elect Barack Obama. The presidency plays no role in impeachments. Indeed, the Constitution explicitly prohibits presidents from issuing pardons in these cases.

The House should open an impeachment inquiry that moves beyond Bybee’s invocation of executive privilege and explores the facts in a comprehensive fashion. Depending on the outcome of this investigation, it will be up to the full House to consider soberly whether an impeachment trial by the Senate should follow.

Bruce Ackerman is professor of law and political science at Yale, and author of Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism.

I don’t see how they can avoid it.

Compare and Contrast

by digby

I was going to do this, but I see that Adam Serwer got there first. He compared the OLC memos with the ICRC report to compare the difference between what was authorized and what the detainees report happened. It’s even more sickening to see the dry, bureaucratic torture language compared to the reports by the prisoners of how they were actually carried out.

Here’s just one example:

The Bybee memo asserts that stress positions, in which the detainee is forced to maintain an uncomfortable position for a long period of time, “may cause muscle fatigue” but that “any pain associated with muscle fatigue is not of the intensity sufficient to amount to severe pain and suffering.” Detainees told the ICRC they were shackled in “stress positions” with their arms above their heads for two or three days continuously, and two or three months intermittently, and were allegedly kept naked during that time. In one case, a detainee’s prosthetic leg was removed to make standing more difficult.

Detainees said that their legs and ankles swelled as a result of their arms being shackled in the stress position and that they were forced to defecate on themselves. Occasionally, detainees said, they were allowed to sit on a bucket to use the bathroom but were not allowed to clean themselves afterward. Only one of the detainees who experienced this agreed to have his name published. The ICRC reports that detainees were checked regularly by medical personnel while undergoing this procedure.

They must have learned something during this period because later they began to put diapers on the prisoners. But they monitored them for possible rashes so it’s all good.

The cable chatterers have all framed this issue today as “did Obama make America less safe?” which is a sign of the noise machine cranking up. Whether it has any legs is another thing, although the wingnuts seem pretty excited at the prospect of reiterating over and over again that it’s ridiculous to say that putting people in a small box with insects is torture.

The “serious people” all seem to think that while there’s something mildly distasteful about the memos, it’s all waterboarding under the bridge and there’s no need to go all Scooter over this. (After all, someone they know might be involved and nobody wants to relive that nightmare.) I can discern almost no energy to pursue this except among the right wingers who want to portray Obama as a terrorist-symp.

After all, it’s not like anyone besmirched the village with a consensual presidential blow job or anything important like that.

Pretzelhead Logic

by digby

The wingnuts are shrieking like banshees today that the release of the memos has made American less safe because the terrorists know that CIA operatives aren’t going to torture them anymore and now they’ll be able to resist their captors. They are working themselves into a full-on hissy fit over it. That neocon nincompoop Cliff May was on MSNBC earlier, carrying on that the terrorists are all going to kill us in our beds because the terrorists will all know now that when we put a caterpillar in the coffin we’ve locked them that the caterpillar isn’t poisonous.

But President Obama told the terrorists weeks ago that the CIA had to follow the Army Field manual, which anyone who has the internet knows precludes using all these techniques from the Spanish Inquisition, (even if they are “supervised” by a doctor so that if emergency surgery is required because of the torture somebody qualified can perform it.) Here’s what Obama ordered on his second day in office:

Interrogation Techniques and Interrogation-Related Treatment.

Effective immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2 22.3 (Manual). Interrogation techniques, approaches, and treatments described in the Manual shall be implemented strictly in accord with the principles, processes, conditions, and limitations the Manual prescribes. Where processes required by the Manual, such as a requirement of approval by specified Department of Defense officials, are inapposite to a department or an agency other than the Department of Defense, such a department or agency shall use processes that are substantially equivalent to the processes the Manual prescribes for the Department of Defense. Nothing in this section shall preclude the Federal Bureau of Investigation, or other Federal law enforcement agencies, from continuing to use authorized, non-coercive techniques of interrogation that are designed to elicit voluntary statements and do not involve the use of force, threats, or promises.

(c) Interpretations of Common Article 3 and the Army Field Manual. From this day forward, unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may, in conducting interrogations, act in reliance upon Army Field Manual 2 22.3, but may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation — including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2 22.3, and its predecessor document, Army Field Manual 34 52 issued by the Department of Justice between September 11, 2001, and January 20, 2009.

Did they think he was kidding?

So, the boogeymen have known what the limits on their detention are for the last three months. And by some miracle, we are all still alive. (Well, except for the dozens of Americans who’ve been gunned down by nuts right here at home.)

The release of these memos has absolutely no effect on national security under the rules that Obama already set forth. It does, however, expose everyone who is defending these tactics as the illogical, sadistic scumbags they really are. Here’s one from Hinderocket:

You can read the memos here. If you do, you will see that DOJ’s lawyers grappled carefully and fairly with issues that are, by their nature, both difficult and distasteful. I find much to agree with in the memos and little, if anything, with which I disagree from a legal standpoint. Several things about the memos are striking: the concern that is shown for the health and well-being of the detainees; the very limited circumstances under harsh interrogation techniques were used (only when the CIA had reason to believe that the detainee had knowledge about pending terrorist attacks, among other limitations), and confirmation of the fact that thousands of American servicemen have been waterboarded and subjected to the other techniques in question, as part of their training–a practice that continued at least up to the dates of the memos.

I love how these torture apologists are proudly displaying pictures on their blogs comparing Obama to Hitler.

Anyone who can defend those memos is so fucked up I pity their friends and families.

Remove Bybee From The Bench

by tristero

Via Atrios comes this damning observation by Scott Lemieux:

It’s dismaying that John Yoo may never face prosecution. But it’s far worse that an even more important figure behind the Bush administration’s torture regime is not only likely never to stand trial but is a life-tenured federal judge. And, of course, this “forgetting” about Bybee’s record didn’t just happen: Senate Democrats were asleep at the switch. Bybee somehow managed to get two Democratic votes on the Judiciary Committee, including (disgracefully) Chuck Schumer’s, and was confirmed 74-19 although senators had at least some inkling of his role. This was an awful abdication of responsibility, among too many.

Indeed it was.

While this post was queued up, dday sent me the news that LA County Democratic Party passed a resolution to get this unprincipled, amoral hack off the bench:

RESOLUTION TO IMPEACH JUDGE JAY BYBEE
Passed Unanimously by LACDP, 4/14/09
Whereas, the 1st Amendment to the United States Constitution guarantees the people a right to petition the government for a redress of grievances; and,

Whereas the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment, the supreme law of the land under Article VI of our Constitution, requires the prosecution of those who authorize torture, waterboarding is torture, and both former President George W. Bush and former Vice President Richard B. Cheney have admitted to authorizing waterboarding; and,

Whereas former Assistant Attorney General, and current Federal Judge of the Court of Appeals for the Ninth Circuit Jay Bybee signed the “Bybee Memo,” or “Torture Memo” of August 1, 2002, which advised the C.I.A. that “cruel, inhuman or degrading” treatment was at times allowable under U.S. law, and authored, co-authored and signed other memos on “extraordinary rendition” and “enhanced interrogation,” more of which are being currently revealed to the American public as the new administration brings them to light; now,

Therefore be it resolved that the Los Angeles County Democratic Party urges that the United States House of Representatives begin impeachment proceedings against Judge Jay Bybee of the United States Court of Appeals for the Ninth Circuit, charging him with facilitating the authorization of torture while employed by the United States Department of Justice; and,

Therefore be it further resolved that a copy of this resolution with its original authorization be sent to the Office of the Speaker of the United States House of Representatives, the Chair of the House Judiciary Committee, and the Majority Leader of the United States Senate, and that copies of the signed resolution be sent to each member of the California delegation to the United States Senate and House of Representatives.

dday tells me that he will be contacting other groups as well. Bybee is a perfect example of the up-is-down mentality of the Bush regime: He has no business whatsoever dispensing American justice. It is others who must judge him for his crimes.

Every Day A Torture Memo

by dday

Now that I’ve had some time to marinate in these depraved memos justifying and finding legal rationalizations for torture, I am convinced that the members of the Bush Administration who directed and authorized all this just willed themselves to believe they were doing the righteous and just thing. Sure, they knew enough to find some thin strand of legal reasoning to cover their naked bodies, but that was seen by them as a brave and forthright act. I don’t see another way to live with approving Room 101 techniques like putting someone in a box with a bug unless you’ve convinced yourself of your own worthiness. The memos also produce a fact pattern of deliberate lies by the CIA to put their proposed torture of Abu Zubaydah in the best possible light (claiming he was of sound mental health when contemporaneous reports term him a basket case, for example). Combine that with typical Republican victimhood status, and you have the squealing pigs in the media today despairing about the release of these documents.

Two of the rogue’s gallery, Michael Hayden and Michael Mukasey, argue in the Wall Street Journal that the President “tied his own hand on terror” due to the release. Here’s a choice quote from these moral lepers.

Disclosure of the techniques is likely to be met by faux outrage, and is perfectly packaged for media consumption. It will also incur the utter contempt of our enemies. Somehow, it seems unlikely that the people who beheaded Nicholas Berg and Daniel Pearl, and have tortured and slain other American captives, are likely to be shamed into giving up violence by the news that the U.S. will no longer interrupt the sleep cycle of captured terrorists even to help elicit intelligence that could save the lives of its citizens.

We’re always supposed to remember that we simply had to violate laws and shrink to the level of our enemies because that’s how they operate, which is certainly telling on behalf of the cretins defending themselves in this. But the contempt of our enemies was never in question; it’s the contempt of our allies, of indeed the entire world, which is only exacerbated by the defense of these actions, especially considering that they have for the time being been put outside the criminal justice system and above the law. It’s not the “publicizing of the techniques,” as this unnamed coward given sanction by useful idiot Mike Allen to rant today, that weakens national security, it’s the constant defense of them, the daily shame that there are powerful people in the US government convinced that drowning people is a necessary activity that “can never be used again” – as if that’s a bad thing.

And of course, this crowd has no problem lying about the application of torture, its effectiveness, or anything else surrounding the process, as long as it bolsters their argument.

The memos include what in effect are lengthy excerpts from the agency’s interrogation manual, laying out with precision how each method was to be used. Waterboarding, for example, involved strapping a prisoner to a gurney inclined at an angle of “10 to 15 degrees” and pouring water over a cloth covering his nose and mouth “from a height of approximately 6 to 18 inches” for no more than 40 seconds at a time.

But a footnote to a 2005 memo made it clear that the rules were not always followed. Waterboarding was used “with far greater frequency than initially indicated” and with “large volumes of water” rather than the small quantities in the rules, one memo says, citing a 2004 report by the C.I.A.’s inspector general.

Following the IG report, the memo’s authors write, they implemented “a number of changes in the application of the waterboard, including limits on the frequency and cumulative use of the technique.” “All of which means that, for a period of time, these limits were not in place,” notes The Huffington Post’s Sam Stein.

In this sense, Richard Armitage is an anomaly – someone who after the fact would be reflective enough to consider the moral issues involved. The others have brainwashed themselves into believing not just the legality of this monstrousness, but the essential nature of it all. And because they continue to run out in the media and talk about the importance of being torturers, and never face a consequence, they harm national security with each passing moment.

And so do those who refuse to hold them to account. I agree that the largely unredacted release is a praiseworthy act by the President. The push to “move forward” and offer no accountability for violations of domestic law and international convention is a huge mistake – one compounded every day by the continued issuing of “torture memos” in newspapers and on cable TV from the Bush Administration weasels who aren’t satisfied with just getting away with the crime, but feel the need to glorify it. This is a Justice Department decision, and they ought to appoint a special prosecutor, taking it out of the political realm. Believers in the rule of law should be screaming for that. Because every day that passes, another torture memo puts distance between us and the world.

As for the impeachment of Jay Bybee, who sits on the 9th Circuit Court of Appeals in San Francisco and spends his days officially passing judgment when his judgment is on display in the torture memos for all to see, I know of a movement upon which we can all latch. See here. More later.

…John Conyers:

“As Americans digest the awful revelations in the Bush-era OLC opinions, our nation faces a critical choice – what will we do to ensure that abuses like those described in these memos are never again ordered by our leaders or justified by our lawyers? To me, the answer is obvious. We must have a full investigation of the circumstances under which these torture methods were created, approved, and implemented, preferably by an independent commission as I previously proposed. And if our leaders are found to have violated the strict laws against torture, either by ordering these techniques without proper legal authority or by knowingly crafting legal fictions to justify the torture, they should be criminally prosecuted. It is simply obvious that, if there is no accountability when wrongdoing is exposed, future violations will not be deterred.

“I believe a Commission is the best forum to resolve the difficult issues raised by the ever-increasing documentary record of Bush Administration interrogation abuses. To take just one example, today two former Bush Administration officials again took to the papers to justify these practices by claiming that the interrogation of Abu Zubaydeh had been a clear success and had led to the disruption of terrorist plots. Yet just two weeks ago, former Bush Administration officials who monitored this interrogation told reporters that ‘not a single significant plot was foiled’ as a result. The American people deserve a non-partisan answer to such fundamental questions.

“Finally, I do not understand the statements by the President and the Attorney General yesterday on the issue of potential prosecutions to address the senior officials and government attorneys who crafted and approved these programs. Further, yesterday’s statements did not address the legality of any conduct that exceeded even the minimal boundaries established by the OLC memos, or any interrogations that occurred before legal guidance was provided.”

We need to keep pressing to make this happen.

.

Article Of Faith

by digby

Writing about the recount process in Minnesota, Ed Kilgore makes an odd claim:

It’s an article of faith among many progressives that Gore and Lieberman lost the election in 2000 well before the U.S. Supreme Court intervened, by exhibiting a naive respect for the rule of law while the Bushies laughed at them contemptuously and blew their doors off in manipulating the process by any means necessary. That’s certainly the impression left by the much-watched HBO movie Recount, where an effete and pompous Warren Christopher, who worried about New York Times editorials and the judgment of history, was decisively outflanked from the beginning by the charmingly vicious Jim Baker. Indeed, the idea that Democrats handed Bush the presidency through a weak and supercilious concern for fair play provided a lot of the impetus (according to some accounts) for the whole “netroots” phenomenon of the ensuing years.

As Josh Marshall notes today via a reader email, Al Franken has been the quieter, more rules-observing contestant in the Minnesota dispute. And that seems to have paid off politically: according to a new poll, 63% of Minnesotans now want Coleman to concede. This is important because it places pressure on MN Gov. Tim Pawlenty to certify Frankel as a senator if Coleman loses his state appeal, without waiting to see what happens in a possible federal suit.

I honestly don’t know what he’s talking about. It’s possible that there are those who think the Democrats should steal elections — or excuse me — adopt the tactics of James Baker and Karl Rove but I don’t know who they are. As for it being an article of faith, I very much think not.

The election of 2000 was certainly one of the catalysts for the netroots’ formation, but not because people thought Gore was some sort of wimp who didn’t know how to fight dirty (although some certainly thought he should have fought on.) It was because it was a terrible abuse of the electoral process by the Republicans, the exact opposite of what Kilgore claims. The “netroots” position has always been electoral reform and exposing the Republican Party’s unethical behavior, not emulating it.

We have spent years documenting their nefarious plans and techniques and would be almost ridiculously hypocritical to call for our side to do the same things. Indeed, I’ve not heard a peep from anyone in the netroots (although I may have missed it) complaining that Franken wasn’t playing hardball. I think most people assume he followed the rules and did pretty much everything right.

There is ongoing concern that the Republicans not be allowed to spin the media the way they did in 2000, which may be where Kilgore gets the idea that we endorse Republican tactics. But I see any media strategy as a purely defensive action designed to allow a Democrat the ability — as Franken has had — to legitimately contest or defend an election result. I don’t think anyone believes they should be out there spinning the press to create a clearly erroneous impression of victory in order to draw out or foreshorten the process, which the right clearly thinks is a-ok. And I can’t imagine anyone endorsing the idea of contesting a clearly lost election purely to delay filling a seat as they are doing in Minnesota.

Anyway, I like Kilgore and agree with him more often than not. But in this case, I think he’s giving the netroots a bad rap. There is no article of faith that I’m aware of that suggests we should adopt the right’s scorched earth electoral tactics. We just want fair elections. And on that, I think we agree fully with Kilgore.

Professional Courtesy

by digby

In reading the Bybee torture memo, you see that he refers constantly to the “professionals” and the medical personnel who oversaw the interrogations. He uses the fact that American military personnel who had undergone SERE training had suffered little lasting damage due to their training in these techniques. (No metion of the logical conclusion that American military personnel knew that the people who were inflicting the torture were only doing it for demonstration purposes and therefore had a completely different psychological reaction.)

Names have been redacted and much of the advice Bybee relies upon is not revealed with any specificity. But rely on it he does, through the entire opinion. Indeed, when you read this classic CIA CYA memo, you get the clear feeling that Bybee was trying to cover his own ass by constantly referring to these “experts” who stipulated that Zubaydah was in good health (despite the fact that the man had almost died of gunshot wounds just a few months before), was completely in control (except for being a schizophrenic) and was handling his interrogation with equanimity (by compulsively masturbating.)

One has to assume that at least some of the CIA personnel the Obama administration promised not to prosecute today were among those to whom Bybee refers. So who are they?

There is actually quite a bit of information out there about how this whole thing happened so it’s not hard to figure it out. First, it’s important to recall that the Zubaydah case was special for a number of reasons, the most important of which was that it spelled the end of the battle between the FBI and the CIA as to how to properly interrogate Al Qaeda prisoners. The FBI believed that that the best way to get actionable info from these people was to use approved interrogation techniques (which in Zubaydah’s case was quite effective.) But the CIA objected, insisting that he knew more than he was saying and that only by using torture could they get it out of him.

Jane Meyer published many of the details about the people involved and the program they used several years ago in the New Yorker:

The C.I.A. program’s first important detainee was Abu Zubaydah, a top Al Qaeda operative, who was captured by Pakistani forces in March of 2002. Lacking in-house specialists on interrogation, the agency hired a group of outside contractors, who implemented a regime of techniques that one well-informed former adviser to the American intelligence community described as “a ‘Clockwork Orange’ kind of approach.” The experts were retired military psychologists, and their backgrounds were in training Special Forces soldiers how to survive torture, should they ever be captured by enemy states. The program, known as SERE—an acronym for Survival, Evasion, Resistance, and Escape—was created at the end of the Korean War. It subjected trainees to simulated torture, including waterboarding (simulated drowning), sleep deprivation, isolation, exposure to temperature extremes, enclosure in tiny spaces, bombardment with agonizing sounds, and religious and sexual humiliation. The SERE program was designed strictly for defense against torture regimes, but the C.I.A.’s new team used its expertise to help interrogators inflict abuse. “They were very arrogant, and pro-torture,” a European official knowledgeable about the program said. “They sought to render the detainees vulnerable—to break down all of their senses. It takes a psychologist trained in this to understand these rupturing experiences.”

The use of psychologists was also considered a way for C.I.A. officials to skirt measures such as the Convention Against Torture. The former adviser to the intelligence community said, “Clearly, some senior people felt they needed a theory to justify what they were doing. You can’t just say, ‘We want to do what Egypt’s doing.’ When the lawyers asked what their basis was, they could say, ‘We have Ph.D.s who have these theories.’ ” He said that, inside the C.I.A., where a number of scientists work, there was strong internal opposition to the new techniques. “Behavioral scientists said, ‘Don’t even think about this!’ They thought officers could be prosecuted.”

Nevertheless, the SERE experts’ theories were apparently put into practice with Zubaydah’s interrogation. Zubaydah told the Red Cross that he was not only waterboarded, as has been previously reported; he was also kept for a prolonged period in a cage, known as a “dog box,” which was so small that he could not stand. According to an eyewitness, one psychologist advising on the treatment of Zubaydah, James Mitchell, argued that he needed to be reduced to a state of “learned helplessness.” (Mitchell disputes this characterization.)

Steve Kleinman, a reserve Air Force colonel and an experienced interrogator who has known Mitchell professionally for years, said that “learned helplessness was his whole paradigm.” Mitchell, he said, “draws a diagram showing what he says is the whole cycle. It starts with isolation. Then they eliminate the prisoners’ ability to forecast the future—when their next meal is, when they can go to the bathroom. It creates dread and dependency. It was the K.G.B. model. But the K.G.B. used it to get people who had turned against the state to confess falsely. The K.G.B. wasn’t after intelligence.”

As the C.I.A. captured and interrogated other Al Qaeda figures, it established a protocol of psychological coercion. The program tied together many strands of the agency’s secret history of Cold War-era experiments in behavioral science. (In June, the C.I.A. declassified long-held secret documents known as the Family Jewels, which shed light on C.I.A. drug experiments on rats and monkeys, and on the infamous case of Frank R. Olson, an agency employee who leaped to his death from a hotel window in 1953, nine days after he was unwittingly drugged with LSD.) The C.I.A.’s most useful research focussed on the surprisingly powerful effects of psychological manipulations, such as extreme sensory deprivation. According to Alfred McCoy, a history professor at the University of Wisconsin, in Madison, who has written a history of the C.I.A.’s experiments in coercing subjects, the agency learned that “if subjects are confined without light, odors, sound, or any fixed references of time and place, very deep breakdowns can be provoked.”

Agency scientists found that in just a few hours some subjects suspended in water tanks—or confined in isolated rooms wearing blacked-out goggles and earmuffs—regressed to semi-psychotic states. Moreover, McCoy said, detainees become so desperate for human interaction that “they bond with the interrogator like a father, or like a drowning man having a lifesaver thrown at him. If you deprive people of all their senses, they’ll turn to you like their daddy.” McCoy added that “after the Cold War we put away those tools. There was bipartisan reform. We backed away from those dark days. Then, under the pressure of the war on terror, they didn’t just bring back the old psychological techniques—they perfected them.”

The C.I.A.’s interrogation program is remarkable for its mechanistic aura. “It’s one of the most sophisticated, refined programs of torture ever,” an outside expert familiar with the protocol said. “At every stage, there was a rigid attention to detail. Procedure was adhered to almost to the letter. There was top-down quality control, and such a set routine that you get to the point where you know what each detainee is going to say, because you’ve heard it before. It was almost automated. People were utterly dehumanized. People fell apart. It was the intentional and systematic infliction of great suffering masquerading as a legal process. It is just chilling.”

Mayer names the two senior psychologists involved in the reverse engineering of the SERE program in her book The Dark Side: James Mitchell and John Bruce Jessen whom she described as ”good looking, clean-cut, polite Mormons.”

KGB torture techniques are what the Bybee memo legalized — at the behest of retired CIA “psychologists.” And they recommended it over the objections of trained FBI interrogators and behavioral scientists in the CIA itself. Those were the experts he relied upon to assure him that Zubaydah was a seasoned terrorist warrior who could only be “broken” by using torture. He ignored plenty of others who said otherwise.

We know now that the information that was gleaned from Zubaydah under torture was completely useless. That’s what that torture program is designed to do, after all — elicit false confessions. And it cost this country millions and millions of dollars and uselessly scared the hell out of people:

Ron Susskind, who also wrote extensively about Zubaydah in The One Percent Solution and wrote this in TIME Magazine when Zubaydah was transferred to Guantanamo:

What is widely known inside the Administration is that once we caught our first decent-size fish–Abu Zubaydah, in March 2002–we used him as an experiment in righteous brutality that in the end produced very little. His interrogation, according to those overseeing it, yielded little from threats and torture. He named countless targets inside the U.S. to stop the pain, all of them immaterial. Indeed, think back to the sudden slew of alerts in the spring and summer of 2002 about attacks on apartment buildings, banks, shopping malls and, of course, nuclear plants. What little of value he did tell us came largely from a more sophisticated approach, using his religious belief in predestination to convince him he miraculously survived his arrest (he was shot three times and nursed to health by U.S. doctors) for a reason: to help the other side. It’s that strange conviction that generated the few, modest disclosures of use to the U.S. Complicating matters is that Zubaydah was more a facilitator–a glorified al-Qaeda travel agent–than the operational master the Administration trumpeted him as. Also, he suffers from multiple personalities. His diary, which the government refuses to release, is written in three voices over 10 years and is filled with page after page of quotidian nonsense about housekeeping, food and types of tea.

So, it’s not just a matter of morality, although this program was so immoral and depraved as to be nearly unbelievable. It was also excessively counterproductive in almost every way, to the point where I’m convinced that the US can probably never get its reputation back and will be seen as a brutal, threatening giant among many people around the world who never thought that before.

When Bybee was searching for legal justifications to do what the CIA wanted to do (and probably Cheney and the rest as well) here’s what the man at the top was saying when he was being briefed about the torture of Zubaydah:

“I said he was important,” Bush reportedly told Tenet at one of their daily meetings. “You’re not going to let me lose face on this, are you?” “No sir, Mr. President,” Tenet replied. Bush “was fixated on how to get Zubaydah to tell us the truth,” Suskind writes, and he asked one briefer, “Do some of these harsh methods really work?” Interrogators did their best to find out, Suskind reports.

James Risen described this scene in his book State of War:

Risen makes much of an anecdote he heard from one of his trusty White House sources about a conversation in 2002 between then-CIA director George Tenet and George Bush after the capture of Abu Zubaydah in Pakistan, a known and high-ranking al Qaeda operative. Tenet was briefing Bush on the matter, explaining that not much intelligence had been pulled from Zubaydah in the early stages because he had been put on pain medication to deal with the injuries he sustained during capture. Bush asked Tenet: “Who authorized putting him on pain medication?” Risen speculates whether Bush was “implicitly encouraging” Tenet to order the harsh treatment of a prisoner “without the paper trail that would have come from a written presidential authorization.” Risen writes, “If so, this episode offers the most direct link yet between Bush and the harsh treatment of prisoners by both the CIA and the U.S. military.”Risen does say that sources close to Tenet have challenged this account, but spends pages after writing about the significance of Zubaydah’s interrogation as “the critical precedent for the future handling of prisoners both in the global war on terror and in the war in Iraq.” Risen writes, “The harsh interrogation methods the CIA used on Zubaydah prompted the first wide-ranging and legal policy review establishing the procedures to be followed in the detention of future detainees. ‘Abu Zubaydah’s capture triggered everything,’ explained a CIA source.” Risen describes a turf war process that eventually had the CIA in charge of all the high-profile al Qaeda prisoners.

And everyone else at the top knew exactly what they were doing too. Mark Danner’s recent mind-blowing story on the Red Cross report backed up this earlier bombshell:

Shortly after Abu Zubaydah was captured, according to ABC News, CIA officers “briefed high-level officials in the National Security Council’s Principals Committee,” including Vice President Dick Cheney, National Security Adviser Condoleezza Rice, and Attorney General John Ashcroft, who “then signed off on the [interrogation] plan.” At the time, the spring and summer of 2002, the administration was devising what some referred to as a “golden shield” from the Justice Department -— the legal rationale that was embodied in the infamous “torture memorandum,” written by John Yoo and signed by Jay Bybee in August 2002… Still, Director of Central Intelligence George Tenet regularly brought directly to the attention of the highest officials of the government specific procedures to be used on specific detainees —- “whether they would be slapped, pushed, deprived of sleep or subject to simulated drowning” — in order to seek reassurance that they were legal. According to the ABC report, the briefings of principals were so detailed and frequent that “some of the interrogation sessions were almost choreographed.” At one such meeting, John Ashcroft, then attorney general, reportedly demanded of his colleagues, “Why are we talking about this in the White House? History will not judge this kindly.”

They are all war criminals, from the nice looking Mormon sadists who call themselves doctors, to the twisted bureaucrats in the Justice Department who call themselves lawyers, to the top leadership of the Bush administration who sat there and watched choreographed torture sessions in the White House and have the utter gall to call themselves human. They all knew that what they were doing was repulsive and immoral. That’s why went to such lengths to ensure that all of it was approved with all the is dotted and all the ts crossed all the way to the very top and back down again. They all implicated each other.

Apparently, they assumed that nobody would ever prosecute even one of these very important, upstanding members of their professions for horrific crimes such as these because if onw went down they would all go down. And apparently they were right.

Update: Oh, and let’s be sure to add Steven Bradbury to the list. He’s just as much of a sadistic madman as Bybee, Yoo and the rest of them — and his opinions were in effect until he left office three months ago. More on his memos tomorrow. Warning: they will make you sick.

And no reflection or retribution is not the answer. Prosecution is the answer. If these aren’t criminal acts, nothing is. It’s the stuff of nightmares.

Update: Apparently we are being disrespectful of the military to try war criminals because it’s exactly the same as calling average Vietnam War Vets baby killers. At least according to our new Director of National Intelligence. William Calley was a hero I guess.

Oh, and while it may seem terrible and disturbing to read these things in the bright light of 2009, we need to remember that our country went crazy after 9/11. All the way up until May of 2005, when the Bradbury memos were written.

How It’s Done

by digby

Does everyone remember this?

The Washington Post, January 3rd, 1994

Senate Minority Leader Robert J. Dole (R-Kan.) and House Minority Whip Newt Gingrich (R-Ga.) yesterday urged Attorney General Janet Reno to appoint an independent counsel to investigate any involvement by President Clinton with a failed Arkansas savings and loan firm and a real estate venture in the state.

There was a time when the Republican congress, in the majority and in minority, was calling for independent counsels every five minutes for such threats to the nation as firing an white house employee and personal real estate dealings that took place years before the president was elected. (not to mention personal indiscretions.) The right wing noise machine would go crazy and the opposition leaders in congress would raise holy hell until the president had no choice but to ask the Attorney General to name an independent counsel just to shut everyone up for a while.

(The Independent counsel statute was created so the executive branch wouldn’t have to investigate itself, the very definition of conflict of interest. After three presidencies, the statute was allowed to die — mostly because the Republicans proved that they would use it as a retributional nuclear political weapon if they had the chance.)

In the last administration, there was enough of an outcry over the leak of a CIA operative that even the Bush administration had to have his AG appoint a special prosecutor. They appointed a non-partisan professional who managed to keep the investigation and trial buttoned up, thus showing that the right special prosecutor could run a political case without joining the partisan mudfight. Although the usual legal wingnuts tried to persuade people that the Fitzgerald investigation was a Ken Starr Chamber, everyone knew it wasn’t, and it proved that it could be done if the prosecutor wasn’t an ideologue and a tool.

All of these cases were brought about by public and political pressure. It occurs to me that this is the only way it can happen in our broken political system — that a president never willingly investigates itself, of course, but also never wants to investigate its predecessor either (the Democrats usually for fear of starting an endless vendetta, the Republicans usually for fear of setting a precedent.) They must be made to do it.

With respect to the Bush torture regime, it’s obviously very difficult for the administration to take on the intelligence community unless there is a large public constituency demanding action. It’s risky on all the levels mentioned above but also risks alienating a very important bureaucracy with a lot of very special power. I recognize that it’s not easy, especially for a Democrat, although I think it’s so important to the future security of the nation that I would have hoped the president would use some of his political capital to prove that the United States is a country of laws not men.

However, I have to wonder if by releasing the memos they aren’t at least obliquely asking for the public to “make” them do it. They could have kept them secret, after all. If there were significant public pressure as well as pressure from congress, they would have enough cover to launch an investigation with the assurance they aren’t going to go the Bad Apple route.

I obviously have no idea whether they would welcome such a thing. But we should do it anyway. I know that if the shoe were on the other foot, the right would crank up the noise machine immediately and gin up a hissy fit of massive proportions over something like this, creating a sense of building crisis that the media would then use to put pressure on the president. It’s how they make these things happen. (I think where this breaks down on our side is the lack of working relationships with congressional leaders, many of whom still see the base as disruptive and ignorant. That’s going to take some long term work to change.)

But we must try. These memos are so disgustingly immoral and thus so dangerous to our future security that we can’t just let it go. FDL is first out of the box with a petition to Attorney General Holder to appoint a special prosecutor. It’s a start. I also think it would be a good idea to launch an “Impeach the Torture Judge” movement against Jay Bybee and encourage the congress to do some serious investigations, not show hearings so they can blather on about how much they all respect each other. There’s no reason to only go at this from one angle.

But whatever happens, it seems to me that any official sanctions for torture will not happen without systematic grassroots action. They don’t investigate their own unless the people make it impossible for them not to. It’s just how it works.

Greenwald put it this way:

Obama did the right thing by releasing these memos, providing all the information and impetus the citizenry should need to demand investigations and prosecutions. But it is up to citizens to demand that the rule of law be applied.

The ACLU is also calling for a Special Prosecutor.

You can sign FDLs petition here.

Depraved Judgment

by digby

First of all, good for Obama for releasing these OLC memos. I know that he was under tremendous pressure from the intelligence community not to do it and it was an act of principle for him to defy them. Like dday, I reamin very, very disappointed that he refuses pursue charges against those who ordered these atrocities, but I am grateful that he’s at least releasing this information.

Having said that, and only having read through the Bybee memo (pdf) authorizing the torture of Abu Zubayda, I feel like vomiting right now. This is the very definition of the banality of evil — a dry, legalistic series of justifications for acts of barbaric cruelty.

The phrase “banality of evil” is very overused, I realized. But this is a case where it applies. Bybee writes as just another corporate-style lawyer finding a legal rationale for his client to do what he wants to do. Happens every day, no big deal. Except that he’s writing memos justifying using techniques that have been known to be torture since at least the Spanish Inquisition.

Oh sure, he says it needs to be “medically supervised” and performed by only those who are “qualified” which makes it all bureaucratically neat and tidy. And he consistently asserts the twisted logic that because American military people had come through the SERE training without suffering any lasting harm, that prisoners would also suffer no lasting harm, which not only makes no sense, but gives him a quasi-legal and moral justification for perpetrating despicable acts. Everything is very sterile and very controlled. And that’s what makes this opinion so chilling.

After the nonsensical use of the Hitler imagery at yesterday’s events, I was hesitant to bring up Arendt again, who after all, most famously used her thesis observing the trial of Adolph Eichman. But reading a dry legal brief offering the opinion on the ways one can put a prisoner in a small dark box with an insect, without breaking any laws inexorably draws you to her work:

He operated unthinkingly, following orders, efficiently carrying them out, with no consideration of their effects upon those he targeted. The human dimension of these activities were not entertained, so the extermination of the Jews became indistinguishable from any other bureaucratically assigned and discharged responsibility for Eichmann and his cohorts.

Arendt concluded that Eichmann was constitutively incapable of exercising the kind of judgment that would have made his victims’ suffering real or apparent for him. It was not the presence of hatred that enabled Eichmann to perpetrate the genocide, but the absence of the imaginative capacities that would have made the human and moral dimensions of his activities tangible for him. Eichmann failed to exercise his capacity of thinking, of having an internal dialogue with himself, which would have permitted self-awareness of the evil nature of his deeds. This amounted to a failure to use self-reflection as a basis for judgment, the faculty that would have required Eichmann to exercise his imagination so as to contemplate the nature of his deeds from the experiential standpoint of his victims. This connection between the complicity with political evil and the failure of thinking and judgment inspired the last phase of Arendt’s work, which sought to explicate the nature of these faculties and their constitutive role for politically and morally responsible choices.

Bybee and Yoo and Addington and all those lawyers in the Bush administration who worked on this cannot actually be explained in quite this way. They obviously knew they were legally exposed, they researched the issue and in the course of that must have read the reasoning behind the laws they were seeking to circumvent. They weren’t mere functionaries carrying out orders, as you might be able to argue the actual torturers were. (Which also wasn’t considered adequate at Nuremberg, but never mind… )These were lawyers who were actively engaged in creating a legal rationale for something they clearly understood was controversial and which required them to think about what they were doing on a deeper level than someone like Eichman.

The psychology may have been the same — they were just doing their jobs. But the act of doing their jobs required a consciousness that goes beyond the average bureaucrat, even the average Nazi bureaucrat ca. 1942. They thought it through.

The man who wrote that memo now sits on the Ninth Circuit Court of Appeals and his conscious judgment is at issue every single day. This country should not have anyone who authorized twisted and depraved behaviors sitting in judgment of anyone. If Obama refuses to take action against this man, the legal profession should do it for him and disbar him. And if the congress can impeach someone over illicit oral sex, they can surely impeach a federal judge for authorizing torture.

It’s bad enough that we have war criminals running free. Having one of them sitting on one of the highest courts in the land is mind-boggling.

There will undoubtedly be more on this as we read through the rest of the memos.

Update: Andrew Sullivan makes the Arendt connection too,as will many others I’m sure.

Greenwald (see update) has delved into the Bradbury memos from 2005 and they may even be more shocking when you consider that Bradbury remained in the DOJ until just three months ago.

Update II: Point of clarification. Obama’s memo today specifically said that they would not prosecute any CIA operatives who were operating on the basis of these memos. I’m not all that snaguine about that, but my main objection has always been to Obama’s refusing to investigate and, if the evidence is there, try those who ordered the torture. He has reiterated to day that he doesn’t want to look backwards, so I don’t expect that he has changed his mind about an independent counsel to investigate the Bush adminstration for torture. but his memo today didn’t specifically address that.