Neil Gorsuch helped defend disputed Bush-era terror policies

The New York Times reports: In December 2005, Congress handed President George W. Bush a significant defeat by tightening legal restrictions against torture in a law called the Detainee Treatment Act. Soon afterward, Neil M. Gorsuch — then a top Justice Department official — sent an email to a White House colleague in case he needed “cheering up” about the administration’s setback.

The email from Judge Gorsuch, nominated by President Trump to fill the vacancy on the Supreme Court caused by the death of Justice Antonin Scalia, linked to articles about a less-noticed provision in the act that undercut the rights of Guantánamo Bay detainees by barring courts from hearing their habeas corpus lawsuits.

“The administration’s victory is not well known but its significance shouldn’t be understated,” wrote Judge Gorsuch, who had helped coordinate the Justice Department’s work with Congress on the bill.

The email about the court-stripping provision — which the Supreme Court later rejected — is among more than 150,000 pages of Bush-era Justice Department and White House documents involving Judge Gorsuch disclosed by the Trump administration ahead of his Senate confirmation hearings next week.

Judge Gorsuch’s time in the executive branch was brief. He joined the Justice Department in June 2005 as the principal deputy associate attorney general, meaning he was the top aide to the No. 3 official in the department. He left in August 2006, when Mr. Bush appointed him as a federal appeals court judge in Denver.

But those 14 months were tumultuous ones for the Bush administration amid controversies over detainee abuses, military commissions, warrantless surveillance and its broad claims of executive power. Judge Gorsuch’s job put him at the center of both litigation and negotiations with Congress over legislation about such topics.

References to those efforts may offer clues to Judge Gorsuch’s approach to the sort of national-security and executive power issues that rarely come before his appeals court but can be crucial at the Supreme Court.

In November 2005, for example, Judge Gorsuch visited Guantánamo for a briefing and tour. Afterward, he wrote a note to the prison operation commander, offering a glowing review.

“I was extraordinarily impressed,” Judge Gorsuch wrote. “You and your colleagues have developed standards and imposed a degree of professionalism that the nation can be proud of, and being able to see first hand all that you have managed to accomplish with such a difficult and sensitive mission makes my job of helping explain and defend it before the courts all the easier.” [Continue reading…]

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Bush weighs in on Trump presidency, calling press ‘indispensable to democracy’

NPR reports: It started out a simple, human interest story featuring a former president and his post-White House hobby — painting watercolors of world leaders, and now, portraits of American soldiers, wounded during military service.

But before it was over, that president, George W. Bush, made real news by doing something he had never before done in a public forum since leaving office: discussing at length the current occupant of the Oval Office.

All through the Obama years, Bush avoided questions about the policies of his successor. Even as Obama reversed Bush’s executive orders. Even when Obama likened his predecessor’s policies to driving the car “into the ditch.” Bush avoided such debate, once telling CNN, “It’s a hard job. It’s difficult. … A former president doesn’t need to make it any harder.” In a speech in Canada just weeks into the Obama presidency, Bush told his audience he wouldn’t spend his time criticizing Obama, “and if he wants my help, he can pick up the phone and call me.”

Which brings us to NBC’s Today on Monday morning. [Continue reading…]

 

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Robert Gates welcomes the prospect of ‘the U.S. not being so reliably passive’

David Ignatius writes: Bob Gates has worked in senior national security positions for the past five presidents, Republican and Democratic. So it’s noteworthy — and to me, encouraging — that he is advising President-elect Donald Trump, too.

Gates, a former defense secretary, CIA director and deputy national security adviser, spoke with me by telephone Wednesday about the advice he’s giving Trump and his team — and the opportunities and pitfalls ahead.

At the top of Gates’s to-do list is striking the right balance between improving relations with Russia and appearing too cooperative with a belligerent President Vladimir Putin.

“I think the challenge for any new administration would have been how to thread the needle — between stopping the downward spiral in U.S.-Russian relations, which had real dangers, and pushing back on Putin’s aggressiveness and general thuggery,” Gates said.

“If you only want to stop the downward spiral, you empower Putin to feel that he can do whatever he wants. I worry that if you don’t have pushback — let him know there are limits, and that the U.S. will react, militarily, if necessary — then the chance of being taken advantage of is larger.” [Continue reading…]

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White House ethics experts argue Trump’s business conflicts are so big it should affect how the Electoral College votes

 

Politico reports: Norm Eisen has become an unlikely media darling. Since Donald Trump’s victory on Nov. 8 opened a debate about how the president-elect would keep his vast business interests separate from his new public obligations, Eisen has emerged as one of the two most prominent government ethicists calling for Trump to take drastic action to avoid scandal or worse. Eisen, the former top Obama White House ethics lawyer, has been cited more than 1,000 times in news stories, explaining the intricacies of the “emoluments clause” to journalists many of whom hadn’t heard the words a month ago. With Richard Painter, who held the same job under President George W. Bush, Eisen has taken control of a leading government watchdog group that’s staffing up to hound Trump’s administration for conflicts of interest they say are unprecedented for the occupant of the Oval Office. A video produced by the liberal advocacy group MoveOn.org of Eisen and Painter talking about a potentially obscure constitutional violation notched more than 2.5 million views in its first week.

“It’s unreal. It’s like a full-employment plan for government ethicists, for White House ethicists,” Eisen told me Monday as he dashed between interviews with U.S. and international journalists lining up to ask him about Trump’s complicated financial arrangements. “Fortunately, there’s basically only a handful of us. There’s really only two.”

That might be an exaggeration, but Eisen and Painter happen to be the two ethicists who are actively working to shape the outcome of an election that most voters think has already been decided. For the #stillnevertrump faction, Eisen and Painter represent the last hope of persuading wobbly members of the Electoral College to vote against the president-elect when they convene on Dec. 19. Failing that, the two men are laying the groundwork for a case that Trump’s sprawling financial arrangements—real estate investments, hotels, golf courses and product licenses spread across the U.S. and at least 20 other countries—will inevitably lead him into scandal or worse once he takes office. Trump is set to hold a news conference Dec. 15 in New York to provide more detail on his future financial plans, but the two men have no expectation that Trump will take their advice and sell off his entire business enterprise and put the proceeds into a “blind trust” with no control or knowledge over where the money goes. [Continue reading…]

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The coming war on ‘radical Islam’

Uri Friedman writes: Where Obama sees a weak enemy that is getting weaker, his critics see a strong enemy that is getting stronger. Where Obama sees limits to what the U.S. can do on its own to eradicate radical interpretations of Islam, his critics see an appalling lack of effort by the U.S. government. Where Obama sees a serious but manageable national-security threat, his critics see an ideological and civilizational challenge to the free world.

Trump has gone further than many other Republican leaders in advancing the counterargument to Obama — not just in his proposed policies, like banning or severely restricting Muslim immigration to the United States, but also in his rhetoric. “I think Islam hates us,” Trump said earlier this year. Asked if he was referring to “radical Islam,” he responded, “It’s radical, but it’s very hard to define. It’s very hard to separate. Because you don’t know who’s who.”

Several members of Trump’s emerging team have described the threat in similarly stark and broad ways. “We’re in a world war against a messianic mass movement of evil people, most of them inspired by a totalitarian ideology: Radical Islam. But we are not permitted to speak or write those two words, which is potentially fatal to our culture,” writes Michael Flynn, Trump’s pick for national-security adviser, in a book he published this summer with the conservative writer Michael Ledeen.

“I don’t believe all cultures are morally equivalent, and I think the West, and especially America, is far more civilized, far more ethical and moral, than the system our main enemies want to impose on us,” Flynn adds.

“Not all the world’s 1.6 billion Muslims are extremists or terrorists. Not by a long shot,” wrote Flynn’s incoming deputy, K.T. McFarland, in March. “But even if just 10 percent of 1 percent are radicalized, that’s a staggering 1.6 million people bent on destroying Western civilization and the values we hold dear. The fascists wanted to control the world. So did the communists. But the Islamists want to brutally kill a significant percentage of the world — and that is anyone standing in the way of their end-times caliphate.” Jeff Sessions, Trump’s choice for attorney general, has invoked America’s “containment” strategy during the Cold War, noting that there “can be no compromise with this form of radical Islam.”

As the head of Breitbart News, Steve Bannon hosted a radio show featuring numerous guests who claimed that radical Muslim ideologues were clandestinely infiltrating the U.S. government and trying to extend their belief system across the country. (Flynn has similarly warned, falsely, that Islamic Sharia law is encroaching on the U.S. legal system.) In a 2014 speech to the Human Dignity Institute in the Vatican, Bannon, who will be Trump’s chief strategist in the White House, characterized the current war against “jihadist Islamic fascism” as the latest stage of an existential, centuries-old struggle between the Judeo-Christian West and the Islamic world: [Continue reading…]

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Obama expands war with Al Qaeda and greatly extends Trump’s capabilities and authorities

The New York Times reports: The escalating American military engagement in Somalia has led the Obama administration to expand the legal scope of the war against Al Qaeda, a move that will strengthen President-elect Donald J. Trump’s authority to combat thousands of Islamist fighters in the chaotic Horn of Africa nation.

The administration has decided to deem the Shabab, the Islamist militant group in Somalia, to be part of the armed conflict that Congress authorized against the perpetrators of the Sept. 11, 2001, terrorist attacks, according to senior American officials. The move is intended to shore up the legal basis for an intensifying campaign of airstrikes and other counterterrorism operations, carried out largely in support of African Union and Somali government forces.

The executive branch’s stretching of the 2001 war authorization against the original Al Qaeda to cover other Islamist groups in countries far from Afghanistan — even ones, like the Shabab, that did not exist at the time — has prompted recurring objections from some legal and foreign policy experts.

The Shabab decision is expected to be publicly disclosed next month in a letter to Congress listing global deployments. It is part of the Obama administration’s pattern of relaxing various self-imposed rules for airstrikes against Islamist militants as it tries to help its partner forces in several conflicts. [Continue reading…]

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Electoral College must reject Trump unless he sells his business, top lawyers for Bush and Obama say

ThinkProgress reports: Members of the Electoral College should not make Donald Trump the next president unless he sells his companies and puts the proceeds in a blind trust, according to the top ethics lawyers for the last two presidents.

Richard Painter, Chief Ethics Counsel for George W. Bush, and Norman Eisen, Chief Ethics Counsel for Barack Obama, believe that if Trump continues to retain ownership over his sprawling business interests by the time the electors meet on December 19, they should reject Trump.

In an email to ThinkProgress, Eisen explained that “the founders did not want any foreign payments to the president. Period.” This principle is enshrined in Article 1, Section 9 of the Constitution, which bars office holders from accepting “any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” [Continue reading…]

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When doctors first do harm

M. Gregg Bloche writes: President-elect Donald J. Trump on Tuesday expressed reservations about the use of torture. But he did not disavow the practice, or his promise to bring it back. And if he does, C.I.A. doctors may be America’s last defense against a return to savagery. But they’ll need to break sharply with what they did the last time around.

Buried in a trove of documents released last summer is the revelation that C.I.A. physicians played a central role in designing the agency’s post-Sept. 11 torture program. The documents, declassified in response to an American Civil Liberties Union lawsuit, show in chilling detail how C.I.A. medicine lost its moral moorings. It’s long been known that doctors attended torture as monitors. What’s new is their role as its engineers.

The documents include previously redacted language from a directive by the C.I.A.’s Office of Medical Services telling physicians at clandestine interrogation sites to flout medical ethics by lying to detainees and collaborating in abuse. This language also reveals that doctors helped to design a waterboarding method more brutal than what even lawyers for the George W. Bush administration allowed. [Continue reading…]

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Case accusing Bush officials of 9/11 abuses heads to Supreme Court

The New York Times reports: The Supreme Court agreed on Tuesday to decide whether high-ranking George W. Bush administration officials — including John Ashcroft, the former attorney general, and Robert S. Mueller III, the former F.B.I. director — may be held liable for policies adopted after the Sept. 11 attacks.

The case began as a class action in 2002 filed by immigrants, most of them Muslim, over policies and practices that swept hundreds of people into the Metropolitan Detention Center in Brooklyn on immigration violations in the weeks after the attacks. The plaintiffs said they had been subjected to beatings, humiliating searches and other abuses.

The roundups drew criticism from the inspector general of the Justice Department, who in 2003 issued reports saying that the government had made little or no effort to distinguish between genuine suspects and Muslim immigrants with minor visa violations.

A divided three-judge panel of the United States Court of Appeals for the Second Circuit, in New York, let the case proceed last year.

“The suffering endured by those who were imprisoned merely because they were caught up in the hysteria of the days immediately following 9/11 is not without a remedy,” Judges Rosemary S. Pooler and Richard C. Wesley wrote in a joint opinion. [Continue reading…]

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How U.S. torture left legacy of damaged minds

The New York Times reports: Before the United States permitted a terrifying way of interrogating prisoners, government lawyers and intelligence officials assured themselves of one crucial outcome. They knew that the methods inflicted on terrorism suspects would be painful, shocking and far beyond what the country had ever accepted. But none of it, they concluded, would cause long lasting psychological harm.

Fifteen years later, it is clear they were wrong.

Today in Slovakia, Hussein al-Marfadi describes permanent headaches and disturbed sleep, plagued by memories of dogs inside a blackened jail. In Kazakhstan, Lutfi bin Ali is haunted by nightmares of suffocating at the bottom of a well. In Libya, the radio from a passing car spurs rage in Majid Mokhtar Sasy al-Maghrebi, reminding him of the C.I.A. prison where earsplitting music was just one assault to his senses.

And then there is the despair of men who say they are no longer themselves. “I am living this kind of depression,” said Younous Chekkouri, a Moroccan, who fears going outside because he sees faces in crowds as Guantánamo Bay guards. “I’m not normal anymore.”

After enduring agonizing treatment in secret C.I.A. prisons around the world or coercive practices at the military detention camp at Guantánamo Bay, Cuba, dozens of detainees developed persistent mental health problems, according to previously undisclosed medical records, government documents and interviews with former prisoners and military and civilian doctors. Some emerged with the same symptoms as American prisoners of war who were brutalized decades earlier by some of the world’s cruelest regimes. [Continue reading…]

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Tunisian men detail CIA black site torture involving electric chair and more

The Guardian reports: Two Tunisian men held in secret CIA prisons for more than a year have told a leading human rights organization they were tortured with gruesome and previously unknown techniques.

The men, who were released to Tunisian custody in 2015, described being threatened with placement in an electric chair at a black site prison in Afghanistan in 2002; being beaten with metal batons while their arms were suspended by a bar above their heads; and having their heads pushed into barrels of water.

One of the men, Ridha al-Najjar, was a pivotal detainee for the CIA, which believed him to be a bodyguard for Osama bin Laden. Najjar was the first man taken by the CIA to the black site, which was code-named Cobalt and was where at least one detainee is known to have died. His interrogation became a template for others at the site, according to the CIA inspector general. Najjar said the interrogators forcibly inserted something into his anus.

According to a footnote in the 2014 Senate intelligence committee’s investigation into torture, John Brennan, now CIA director, was among the senior CIA officials briefed in the summer of 2002 on the interrogation plan for Najjar. According to the Senate report, the plan included isolation, “‘sound disorientation techniques’, ‘sense of time deprivation’, limited light, cold temperatures, and sleep deprivation”.

“There was a barrel full of water, and they kept submerging [my head] in the water,” the other Tunisian man, Lotfi al-Arabi El Gherissi, told Human Rights Watch, which shared the two men’s accounts with the Guardian. [Continue reading…]

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America has spent almost $5 trillion on wars since 9/11

The Intercept reports: The total U.S. budgetary cost of war since 2001 is $4.79 trillion, according to a report released this week from Brown University’s Watson Institute. That’s the highest estimate yet.

Neta Crawford of Boston University, the author of the report, included interest on borrowing, future veterans needs, and the cost of homeland security in her calculations.

The amount of $4.79 trillion, “so large as to be almost incomprehensible,” she writes, adds up like this: [Continue reading…]

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A stark reminder of Guantánamo’s sins

In an editorial, the New York Times says: It is haunting, maddening even, to revisit the facts of Abu Zubaydah’s time in American custody more than 14 years after he was detained in Pakistan in the frenzied period following the Sept. 11 attacks. Abu Zubaydah, the first prisoner known to have been waterboarded by the Central Intelligence Agency, loomed large in America’s imagination for years as the personification of evil.

On Tuesday, a small group of human rights advocates and journalists got a fleeting glimpse of Abu Zubaydah — the first since his detention — when he appeared before a panel of government officials to argue that he would not be a threat to the United States if he were released from the Guantánamo Bay prison in Cuba. The hearing, which civilians were allowed to watch part of from a live video feed, is an opportunity to reflect on the shameful tactics employed during years of national panic about terrorism and to reinvigorate efforts to close the prison.

George W. Bush’s administration believed that Abu Zubaydah, a bearded Saudi who wears a patch on his left eye, was the operations head of Al Qaeda. Mr. Bush singled him out in a 2006 speech, calling him a “senior terrorist leader,” and claiming that “the security of our nation and the lives of our citizens depend on our ability to learn what these terrorists know.” Abu Zubaydah and men like him, government officials argued, fully justified the facility at Guantánamo as well as a secret web of prisons run by the C.I.A. They also justified the “enhanced interrogation techniques,” otherwise known as torture, then eagerly embraced by some American intelligence officials.

Years later, it became clear that Abu Zubaydah wasn’t a top figure in Al Qaeda after all. It also became clear that he had willingly provided insights into terrorist groups when he was interrogated by F.B.I. agents, who treated him cordially. By the time he was turned over to the C.I.A., his knowledge about threats to the United States appears to have been largely exhausted. Yet agency personnel insisted on the need for torture, waterboarding him at least 83 times and subjecting him to other cruelty.

Never charged and never tried, Abu Zubaydah has also never been allowed to speak publicly about his ordeal. His American abusers have never been held to account. [Continue reading…]

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How corruption paved the way for the rise of ISIS and the failure of Iraq

Ken Silverstein writes: It is hard to overstate the devastating role that corruption has played in the failure of Iraq and the rise of ISIS. According to a report last March by the Iraqi parliament’s auditing committee, the country’s defense ministry has spent $150 billion on weapons during the past decade — but acquired only $20 billion worth of arms. Much of the equipment it did obtain was useless, 1970s-era matériel from former Soviet bloc states that was invoiced at up to four times its actual value. Late last year, well-placed sources tell me, the Pentagon delivered a shipment of new weapons to the Iraqi government, including .50-caliber sniper rifles, which were supposed to be sent to Sunni fighters in Anbar Province. Instead, corrupt officials in the Iraqi ministries of interior and defense sold the arms to ISIS, which is using them to kill Kurdish peshmerga fighters.

“The Kurds are still using equipment we gave them in 2003,” says a former CIA official who spends a good deal of time in Iraq. “They’re forced to buy ammo and weapons that the U.S. government gives to Baghdad from corrupt Iraqi government officials.”

Weapons aren’t the only target for corruption. When it comes to the vast sums of money that have flowed into Iraq for reconstruction and economic development, officials at every level of government have been more focused on lining their own pockets than rebuilding their ruined country. [Continue reading…]

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The folly of Obama’s disengagement doctrine

Thanassis Cambanis writes: A generational war has engulfed the Levant. The ruination of Iraq and Syria is akin to a core meltdown within the Arab state system, with consequences that already have rocked the world: new wars flaring across the Middle East, political ferment in Turkey, a global refugee crisis, and the rise of the Islamic State group, to name just a few.

Today we can begin the sad work of taking inventory of an American presidency that aspired to a humane and humble foreign policy. President Barack Obama didn’t start the Levantine conflagration — that ignoble credit belongs to his predecessor — but he has kept America fighting in Iraq and deployed forces in Syria to support a vast, billion-dollar covert proxy effort. All to little effect.

The long, horrific war that President George W. Bush launched in March 2003, with his illegal invasion of Iraq under false pretenses, has shattered the cradle of civilization beyond all recognition. During the subsequent occupation, U.S. officials dismantled the pillars of the Iraqi state, including its military and bureaucracy, and then stood by as newly empowered sectarian warlords and mob bosses tore apart the country. Many wars flared simultaneously in Iraq, some of which spread to neighboring Syria after the popular uprising sparked there in 2011.

President Obama’s signal intellectual and policy contribution was his minimalist response towards the chaos left behind by Bush. American policy at turns sought to contain the implosion of Syria and the ongoing fighting in Iraq, and at others accelerated or tried to steer the conflict, often by trying to balance ethnic or sectarian militias in a manner that, perhaps inadvertently, deepened the hold of sectarian warlords.

The president’s lackluster attitude has poisoned much of the serious policy conversation in Washington. His policies have spread the spurious conviction that whatever happens in the Middle East is not a core U.S. or international interest, but rather a sad and regional affair. [Continue reading…]

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Karen Greenberg on the making of the modern security state

Brian O’Neill writes: For people not intimately involved in national security debates, and who haven’t closely followed how we arrived at the modern security state, the decade-and-a-half following the surreal terror of September 11 have felt like an unmoored drift, a country floating aimlessly, if recklessly, down a river of indecision. The internet’s rising ubiquity, followed by the dominance of social media, allowed many of us to unwittingly shrug off privacy concerns, while simultaneously ignoring others’ indefinite detention, the torture of strangers, and sky-borne assassination overseas, until we looked around and the sky was speckled with revelations. It’s easy to feel like the new relationship we have with our government “only just happened.”

In Rogue Justice, Karen Greenberg, the director of the Center on National Security at Fordham University School of Law, puts that feeling of aimless drift mostly to rest. This detailed and meticulously researched book shows how the willingness to make every citizen a suspect, and to give the executive branch immense powers to surveil, detain, torture, and murder were not just a product of collective fear and indifference, but the deliberate actions of a surprisingly small group of people. I say “mostly” because the decisions were made by officials within the Bush and (to a lesser extent) Obama administrations, but they were also enabled by the assumed (and granted) complicity of many others.

This complicity came from careerists worried about rocking the boat, politicians in both parties worried about being painted as weak on terror (with notable and noble exceptions), and to an uncomfortable extent, the general public. The terrorist attacks in 2001 made everyone realize that anyone could be a target, but we didn’t see — or didn’t want to see — that in a very real way, we also became a target of the government. Many of the policies enacted in the wake of 9/11 made everyone a suspect as much as a target. Through official secrecy aided by general indifference, we allowed ourselves to be passively dragooned into being on both sides of a war. [Continue reading…]

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