Category Archives: Department of Justice

Manhattan transfer

Manhattan transfer
By Dahlia Lithwick, Slate, November 16, 2009

Opposition to the Obama administration’s plan to try alleged 9/11 mastermind Khalid Sheikh Mohammed and his confederates in a federal court in New York City is hardening into two camps. One is concerned that we may be unwittingly playing into the terrorists’ hands. The other is incensed that we already have. What both camps share, besides a kind of unhinged logic and complete disregard for the legal process, is an obsessive fascination with the accused. The result is a broad willingness to sacrifice our commitment to legal principles in favor of the symbolic satisfaction of crushing the hopes and dreams of a motley group of criminals.

Former New York Mayor Rudy Giuliani, firmly in the first camp, is hopping mad that we are poised to make all the suspect’s dreams come true. As he said on ABC’s This Week: “Khalid Sheikh Mohammed, when he was first arrested, asked to be brought to New York. I didn’t think we were in the business of granting the requests of terrorists.”

Funny, that. I didn’t think we were in the business of caring one way or another what the terrorists want from us. The criminal justice system is as uninterested in advancing the goals of the accused as it is in frustrating them. The most vocal critics seem to forget that our legal system exists not to grant requests or dash hopes but to bring people to justice. [continued…]

Detainees to get the “state-always-wins” system of “justice”

Detainees to get the “state-always-wins” system of “justice”
By Glenn Greenwald, Salon, November 13, 2009

… what we have here is not an announcement that all terrorism suspects are entitled to real trials in a real American court. Instead, what we have is a multi-tiered justice system, where only certain individuals are entitled to real trials: namely, those whom the Government is convinced ahead of time it can convict. Others for whom conviction is less certain will be accorded lesser due process: put in military commissions, to which most leading Democrats vehemently objected when created under Bush. Presumably, others still — those who the Government believes cannot be convicted in either forum, will simply be held indefinitely with no charges, a power the administration recently announced it intends to preserve based on the same theories used by Bush/Cheney to claim that power.

A system of justice which accords you varying levels of due process based on the certainty that you’ll get just enough to be convicted isn’t a justice system at all. It’s a rigged game of show trials. This is a point I’ve been emphasizing since May, when Obama gave his speech in front of the Constitution at the National Archives and explained how there were five different “categories” of terrorism suspects who would be treated differently based on the category into which they fell: [continued…]

9/11 trial poses unparalleled legal obstacles

9/11 trial poses unparalleled legal obstacles
By Eric Lichtblau and Benjamin Weiser, New York Times, November 14, 2009

How do you defend one of the most notorious terrorist figures in history?

One step, legal analysts say, may be to ask for a change of venue.

Khalid Shaikh Mohammed’s lawyers, whoever they are, will no doubt question whether he can get a fair trial from a jury sitting, as Attorney General Eric H. Holder Jr. noted, in a Manhattan courthouse “just blocks away from where the Twin Towers once stood.”

Then will come the inevitable challenges to interrogation methods used on Mr. Mohammed during more than six years in detention. The government has acknowledged waterboarding him 183 times to extract information about the Sept. 11 attacks, which he eventually admitted planning.

Finally, if Mr. Mohammed is convicted, defense lawyers will most likely plead for jurors in New York, historically more cautious about capital punishment than much of the rest of country, to spare the sentence of execution and send him to prison for the rest of his life instead. [continued…]

1,600 are suggested daily for FBI’s list

1,600 are suggested daily for FBI’s list
By Walter Pincus, Washington Post, November 1, 2009

Newly released FBI data offer evidence of the broad scope and complexity of the nation’s terrorist watch list, documenting a daily flood of names nominated for inclusion to the controversial list.

During a 12-month period ended in March this year, for example, the U.S. intelligence community suggested on a daily basis that 1,600 people qualified for the list because they presented a “reasonable suspicion,” according to data provided to the Senate Judiciary Committee by the FBI in September and made public last week.

FBI officials cautioned that each nomination “does not necessarily represent a new individual, but may instead involve an alias or name variant for a previously watchlisted person.”

The ever-churning list is said to contain more than 400,000 unique names and over 1 million entries. The committee was told that over that same period, officials asked each day that 600 names be removed and 4,800 records be modified. Fewer than 5 percent of the people on the list are U.S. citizens or legal permanent residents. Nine percent of those on the terrorism list, the FBI said, are also on the government’s “no fly” list. [continued…]

Justice Dept. report advises pursuing CIA abuse cases

Justice Dept. report advises pursuing CIA abuse cases
By David Johnson, New York Times, August 24, 2009

The Justice Department’s ethics office has recommended reversing the Bush administration and reopening nearly a dozen prisoner-abuse cases, potentially exposing Central Intelligence Agency employees and contractors to prosecution for brutal treatment of terrorism suspects, according to a person officially briefed on the matter.

The recommendation by the Office of Professional Responsibility, presented to Attorney General Eric H. Holder Jr. in recent weeks, comes as the Justice Department is about to disclose on Monday voluminous details on prisoner abuse that were gathered in 2004 by the C.I.A.’s inspector general but have never been released.

When the C.I.A. first referred its inspector general’s findings to prosecutors, they decided that none of the cases merited prosecution. But Mr. Holder’s associates say that when he took office and saw the allegations, which included the deaths of people in custody and other cases of physical or mental torment, he began to reconsider.

With the release of the details on Monday and the formal advice that at least some cases be reopened, it now seems all but certain that the appointment of a prosecutor or other concrete steps will follow, posing significant new problems for the C.I.A. It is politically awkward, too, for Mr. Holder because President Obama has said that he would rather move forward than get bogged down in the issue at the expense of his own agenda. [continued…]

New unit to question key terror suspects
By Anne E. Kornblut, Washington Post, August 24, 2009

Under the new guidelines, interrogators must stay within the parameters of the Army Field Manual when questioning suspects. The task force concluded — unanimously, officials said — that “the Army Field Manual provides appropriate guidance on interrogation for military interrogators and that no additional or different guidance was necessary for other agencies,” according to a three-page summary of the findings. The officials spoke on the condition of anonymity to discuss intelligence matters freely.

Using the Army Field Manual means certain techniques in the gray zone between torture and legal questioning — such as playing loud music or depriving prisoners of sleep — will not be allowed. Which tactics are acceptable was an issue “looked at thoroughly,” one senior official said. Obama had already banned certain severe measures that the Bush administration had permitted, such as waterboarding.

Still, the Obama task force advised that the group develop a “scientific research program for interrogation” to develop new techniques and study existing ones to see whether they work. In essence, the unit would determine a set of best practices on interrogation and share them with other agencies that question prisoners. [continued…]

NEWS: American lessons on torture

Justice official defends rough CIA interrogations
By Dan Eggen, Washington Post, February 17, 2008

The Bush administration allowed CIA interrogators to use tactics that were “quite distressing, uncomfortable, even frightening,” as long as they did not cause enough severe and lasting pain to constitute illegal torture, a senior Justice Department official said last week.

In testimony before a House subcommittee, Steven G. Bradbury, the acting chief of the Justice Department’s Office of Legal Counsel, spelled out how the administration regulated the CIA’s use of rough tactics and offered new details of how simulated drowning was used to compel disclosures by prisoners suspected of being al-Qaeda members.

The method was not, he said, like the “water torture” used during the Spanish Inquisition and by autocratic governments into the 20th century, but was subject to “strict time limits, safeguards, restrictions.” He added, “The only thing in common is, I think, the use of water.”

Bradbury indicated that no water entered the lungs of the three prisoners who were subjected to the practice, lending credence to previous accounts that the noses and mouths of CIA captives were covered in cloth or cellophane. Cellophane could pose a serious asphyxiation risk, torture experts said.

Bradbury’s unusually frank testimony Thursday before the House Judiciary Committee subcommittee stunned many civil liberties advocates and outside legal scholars who have long criticized the Bush administration’s secretive and aggressive interrogation policies.

Martin S. Lederman, a former Office of Legal Counsel official who teaches law at Georgetown University, called Bradbury’s testimony “chilling.” In an online posting, Lederman said that “to say that this is not severe physical suffering — is not torture — is absurd. And to invoke the defense that what the Spanish Inquisition did was worse and that we use a more benign, non-torture form of waterboarding . . . is obscene.” [complete article]

NEWS, OPINION & EDITOR’S COMMENT: The atrophy of conscience

Anybody’s guess
By Dahlia Lithwick, Slate, February 8, 2008

It’s been a banner week for water-boarding. This centuries-old practice of simulated drowning to extract false confessions and false testimony has really benefited of late from a good old legal reassessment and a smoking-hot PR campaign. In the course of a few short years, water-boarding has morphed from torture that unquestionably violates both federal and international law to an indispensable tool in the fight against terror. [complete article]

Waterboarding should be prosecuted as torture: U.N.
Reuters, February 8, 2008

The controversial interrogation technique known as waterboarding and used by the United States qualifies as torture, the U.N. human rights chief said on Friday.

“I would have no problems with describing this practice as falling under the prohibition of torture,” the U.N. High Commissioner for Human Rights, Louise Arbour, told a news conference in Mexico City. [complete article]

Cheney defends U.S. use of waterboarding
CBS/AP, February 8, 2008

The debate over waterboarding flared Thursday on Capitol Hill, with the CIA director raising doubts about whether it’s currently legal and the attorney general refusing to investigate U.S. interrogators who have used the technique on terror detainees.

Vice President Dick Cheney, meanwhile, said “it’s a good thing” that top al Qaeda figures underwent the harsh interrogation tactic in 2002 and 2003, claiming they were forced to give up information that helped protect the country and saved “thousands” of American lives. [complete article]

Justice Dept. ‘cannot’ probe waterboarding, Mukasey says
By Dan Eggen, Washington Post, February 8, 2008

The attorney general yesterday rejected growing congressional calls for a criminal investigation of the CIA’s use of simulated drownings to extract information from its detainees, as Vice President Cheney called it a “good thing” that the CIA was able to learn what it did from those subjected to the practice.

The remarks reflected a renewed effort by the Bush administration to defend its past approval of the interrogation tactic known as waterboarding, which some lawmakers, human rights experts and international lawyers have described as illegal torture. [complete article]

CIA chief doubts tactic to interrogate is still legal
By Scott Shane, New York Times, February 8, 2008

Gen. Michael V. Hayden, the director of the Central Intelligence Agency, told a Congressional committee on Thursday that waterboarding may be illegal under current law, despite assertions this week from the director of national intelligence and the White House that the harsh interrogation method may be used in the future.

General Hayden said that while “all the techniques we’ve used have been deemed to be lawful,” laws have changed since waterboarding was last used nearly five years ago.

“It is not included in the current program, and in my own view, the view of my lawyers and the Department of Justice, it is not certain that the technique would be considered to be lawful under current statute,” General Hayden said before the House Intelligence Committee. [complete article]

Waterboarding: Two questions for Michael Hayden
By Andy Worthington, Antiwar, February 7, 2008

My questions for Mr. Hayden are simple. Firstly, if it’s true that only three detainees were subjected to waterboarding, then why did a number of “former and current intelligence officers and supervisors” tell ABC News in November 2005 that “a dozen top al-Qaeda targets incarcerated in isolation at secret locations on military bases in regions from Asia to Eastern Europe” were subjected to six “Enhanced Interrogation Techniques,” instituted in mid-March 2002?

According to the ABC News account, the six techniques used by the CIA on the “dozen top al-Qaeda targets” were “The Attention Grab,” “Attention Slap,” “The Belly Slap” and three other techniques that are particularly worrying: “Long Time Standing,” “The Cold Cell,” and, of course, “Waterboarding.”

“Long Time Standing” was described as “among the most effective [techniques],” in which prisoners “are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours.” The ABC News report added, “Exhaustion and sleep deprivation are effective in yielding confessions.” In “The Cold Cell,” the prisoner “is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.”

The description of “Waterboarding” was as follows: “The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner’s face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.” [complete article]

Editor’s Comment — There’s a simple reason why the simple-minded don’t think that waterboarding is torture. In “real” torture, the person being tortured is the innocent victim; the torturer is the evil party. When Cheney ventured over to the dark side it was in order to give good people the freedom to do bad things to bad people. If the person being tortured is bad, then it can’t be torture. It’s perverse logic but it explains how a vice president with a twisted mind can have a “clean” conscience.

INTERVIEW: Sibel Edmonds

Sibel Edmonds: ‘Buckle up, there’s much more coming.’
By Luke Ryland, Dissident Voice, January 29, 2008

In the last few weeks, London Times has run a series of articles about the so-called ‘Sibel Edmonds case’: (For sale: West’s deadly nuclear secrets,’ FBI denies file exposing nuclear secrets theft‘ and ‘Tip-off thwarted nuclear spy ring probe‘)

Former FBI translator Sibel Edmonds stumbled into a world of espionage, nuclear black market, narcotics trafficking, money laundering, and corruption at the highest levels of the US government.

I interviewed Sibel on Sunday regarding the current investigation and reporting by the Times, the failures of the US media, and last week’s decision by the Bush administration to legalize the sale of nuclear technology to Turkey, in an apparent effort to exonerate prior criminal activity by officials in his administration. [complete article]

NEWS & OPINION: The Bush administration’s dirty bomb

Tip-off thwarted nuclear spy ring probe
By Chris Gourlay, Jonathan Calvert, Joe Lauria, The Sunday Times, January 27, 2008

Ainvestigation into the illicit sale of American nuclear secrets was compromised by a senior official in the State Department, a former FBI employee has claimed.

The official is said to have tipped off a foreign contact about a bogus CIA company used to investigate the sale of nuclear secrets.

The firm, Brewster Jennings & Associates, was a front for Valerie Plame, the former CIA agent. Her public outing two years later in 2003 by White House officials became a cause célèbre.

The claims that a State Department official blew the investigation into a nuclear smuggling ring have been made by Sibel Edmonds, 38, a former Turkish language translator in the FBI’s Washington field office.

Edmonds had been employed to translate hundreds of hours of intercepted recordings made during a six-year FBI inquiry into the nuclear smuggling ring. [complete article]

Why Bush wants to legalize the nuke trade with Turkey
By Joshua Frank, Antiwar, January 26, 2008

According to FBI whistleblower Sibel Edmonds, there is a vast black market for nukes, and certain U.S. officials have been supplying sensitive nuclear technology information to Turkish and Israeli interests through its conduits. It’s a scathing allegation which was first published by the London Times two weeks ago, and Edmonds’ charge seems to be on the verge of vindication.

In likely reaction to the London Times report, the Bush Administration quietly announced on January 22 that the president would like Congress to approve the sale of nuclear secrets to Turkey. As with most stories of this magnitude, the U.S. media has put on blinders, opting to not report either Edmonds’ story or Bush’s recent announcement. [complete article]

FEATURE: Sibel Edmonds’ claims demand investigation

FBI whistleblower Sibel Edmonds spills her secrets
By Philip Giraldi, The American Conservative, January 28, 2008

Most Americans have never heard of Sibel Edmonds, and if the U.S. government has its way, they never will. The former FBI translator turned whistleblower tells a chilling story of corruption at Washington’s highest levels—sale of nuclear secrets, shielding of terrorist suspects, illegal arms transfers, narcotics trafficking, money laundering, espionage. She may be a first-rate fabulist, but Edmonds’s account is full of dates, places, and names. And if she is to be believed, a treasonous plot to embed moles in American military and nuclear installations and pass sensitive intelligence to Israeli, Pakistani, and Turkish sources was facilitated by figures in the upper echelons of the State and Defense Departments. Her charges could be easily confirmed or dismissed if classified government documents were made available to investigators.

But Congress has refused to act, and the Justice Department has shrouded Edmonds’s case in the state-secrets privilege, a rarely used measure so sweeping that it precludes even a closed hearing attended only by officials with top-secret security clearances. According to the Department of Justice, such an investigation “could reasonably be expected to cause serious damage to the foreign policy and national security of the United States.” [complete article]

NEWS: Turkish-Israeli network sold nuclear secrets

FBI denies file exposing nuclear secrets theft
The Sunday Times, January 20, 2008

The FBI has been accused of covering up a key case file detailing evidence against corrupt government officials and their dealings with a network stealing nuclear secrets.

The assertion follows allegations made in The Sunday Times two weeks ago by Sibel Edmonds, an FBI whistleblower, who worked on the agency’s investigation of the network.

Edmonds, a 37-year-old former Turkish language translator, listened into hundreds of sensitive intercepted conversations while based at the agency’s Washington field office.

She says the FBI was investigating a Turkish and Israeli-run network that paid high-ranking American officials to steal nuclear weapons secrets. These were then sold on the international black market to countries such as Pakistan and Saudi Arabia.

One of the documents relating to the case was marked 203A-WF-210023. Last week, however, the FBI responded to a freedom of information request for a file of exactly the same number by claiming that it did not exist. But The Sunday Times has obtained a document signed by an FBI official showing the existence of the file. [complete article]

NEWS: Investigation into the destruction of the torture tapes

Justice Dept. sets criminal inquiry on CIA tapes
By Mark Mazzetti and David Johnston, New York Times, January 3, 2008

Attorney General Michael B. Mukasey said Wednesday that the Justice Department had elevated its inquiry into the destruction of Central Intelligence Agency interrogation videotapes to a formal criminal investigation headed by a career federal prosecutor.

The announcement is the first indication that investigators have concluded on a preliminary basis that C.I.A. officers, possibly along with other government officials, may have committed criminal acts in their handling of the tapes, which recorded the interrogations in 2002 of two operatives with Al Qaeda and were destroyed in 2005.

C.I.A. officials have for years feared becoming entangled in a criminal investigation involving alleged improprieties in secret counterterrorism programs. Now, the investigation and a probable grand jury inquiry will scrutinize the actions of some of the highest-ranking current and former officials at the agency.

The tapes were never provided to the courts or to the Sept. 11 commission, which had requested all C.I.A. documents related to Qaeda prisoners. The question of whether to destroy the tapes was for nearly three years the subject of deliberations among lawyers at the highest levels of the Bush administration. [complete article]

Lawmaker told CIA not to destroy tapes
By Eileen Sullivan, AP, January 3, 2008

The top Democrat on the House Intelligence Committee warned in a 2003 letter that destroying videotapes of terrorist interrogations would put the CIA under a cloud of suspicion, according to a newly declassified copy of the letter.

“Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future,” Rep. Jane Harman, D-Calif., wrote in a Feb. 10, 2003 letter to then-CIA general counsel Scott Muller. “The fact of destruction would reflect badly on the agency.”

Harman’s office released the declassified letter on Thursday, a day after the Justice Department announced it had opened a criminal investigation into the destruction of the tapes. The letter notes that a copy also went to then-CIA Director George Tenet. [complete article]

Probe leader called a tough prosecutor
By Dafna Linzer, Washington Post, January 3, 2008

John H. Durham, who was appointed yesterday to lead a criminal probe into the destruction of the CIA’s interrogation tapes, oversaw corruption charges against a Republican governor in Connecticut, put away FBI agents in Boston and prosecuted many of New England’s Mafia bosses.

Former colleagues said the deputy U.S. attorney is known for seeking maximum sentences, shunning plea bargains and avoiding the spotlight. Four friends said they could not recall him losing a case in more than 30 years as a prosecutor, almost all of it spent fighting organized crime and gang violence in Connecticut. [complete article]

Editor’s Comment — I surely won’t be the first to make this observation, but Durham’s experience in investigating the Mafia should serve him well when it comes to uncovering the workings of the Bush adminstration.

NEWS, OPINION & EDITOR’S COMMENT: Torture tapes — Watergate of our times?

CIA to cooperate with House on tapes
By Scott Shane, New York Times, December 20, 2007

The Central Intelligence Agency has agreed to make documents related to the destruction of interrogation videotapes available to the House Intelligence Committee and to allow the agency’s top lawyer, John A. Rizzo, to testify about the matter, Congressional and intelligence officials said Wednesday.

But it remained unclear whether Jose A. Rodriguez, who as chief of the agency’s clandestine service ordered the tapes destroyed in 2005, would testify. Officials said Mr. Rodriguez’s appearance before the committee might involve complex negotiations over legal immunity at a time when the Justice Department and the intelligence agency were reviewing whether the destruction of the tapes broke any laws.

The agreement marked at least a partial resolution of a standoff between the Bush administration and Congress. [complete article]

Torture tapes are the Watergate of our times
By Brent Budowsky, The Hill, December 19, 2007

In an administration facing an ocean of scandal on multiple and multiplying fronts, this scandal above all will be the Watergate of our times because it involves extremely probable crimes of torture, extremely probable obstructions of justice, and a steady stream of revelations that will only escalate until the inevitable special prosecutor is named. [complete article]

Editor’s Comment — Starting with the most obvious difference between the torture tapes and the Watergate tapes, the latter were tampered with while the former were destroyed — call it a Watergate lesson-learned. But perhaps more important is the political context. America in the early ’70s had the capacity to be shocked and the willingness to challenge power. Back in those days, the New York Times had the guts to defy the White House by publishing the Pentagon Papers. Now the White House asks them to change a subheading and the paper of record meekly says, OK. As for Congress, is an anemic Democratic “opposition” ready to challenge the administration, no-holds-barred? That really would be shocking.

REVIEW & OPINION: The torture presidency

The man behind the torture
By David Cole, New York Review of Books, December 6, 2007

Perhaps the most powerful lawyer in the Bush administration is also the most reclusive. David Addington, who was Vice President Dick Cheney’s counsel from 2001 to 2005, and since then his chief of staff, does not talk to the press. His voice, however, has been enormously influential behind closed doors, where, with Cheney’s backing, he has helped shape the administration’s strategy in the war on terror, and in particular its aggressively expansive conception of executive power. Sometimes called “Cheney’s Cheney,” Addington has twenty years of experience in national security matters—he has been a lawyer for the CIA, the secretary of defense, and two congressional committees concerned with intelligence and foreign affairs. He is a prodigious worker, and by all accounts a brilliant inside political player. Richard Shiffrin, deputy general counsel for intelligence at the Defense Department until 2003, called him “an unopposable force.” Yet most of the American public has never heard him speak.

Addington’s combination of public silence and private power makes him an apt symbol for the Bush administration’s general approach to national security. Many of the administration’s most controversial policies have been adopted in secret, under Addington’s direction, often without much input from other parts of the executive branch, much less other branches of government, and without public accountability. Among the measures we know about are disappearances of detainees into secret CIA prisons, the use of torture to gather evidence, rendition of suspects to countries known for torture, and warrantless wiretapping of Americans. [complete article]

The missing IG report on Maher Arar
By Scott Horton, Harper’s, November 16, 2007

Of all the Bush Administration’s many perversions of the justice system, there is something particularly distressing about the case of Maher Arar. A Canadian software engineer, he was changing planes in JFK on his way home to Canada after a Mediterranean vacation when American law enforcement snatched him up. Arar had been fingered as a terrorism suspect by Canadian authorities. Within a brief period of time, he was interrogated, locked-up and then bundled off to Jordan with directions for transshipment to Syria, a nation known to use torture. Indeed, it was plain from the outset that he was shipped to Syria for purposes of being tortured, with a list of questions to be put to him passed along. Never mind that Syria is constantly reviled as a brutal dictatorship by some Bush Administration figures who openly dream of bombing or invading it… the Syrians, it seems, have a redeeming feature—their willingness to torture the occasional Canadian engineer as a gesture of friendship to the Americans. [complete article]

OPINION: The crime of waterboarding

Waterboarding used to be a crime
By Evan Wallach, Washington Post, November 4, 2007

As a JAG in the Nevada National Guard, I used to lecture the soldiers of the 72nd Military Police Company every year about their legal obligations when they guarded prisoners. I’d always conclude by saying, “I know you won’t remember everything I told you today, but just remember what your mom told you: Do unto others as you would have others do unto you.” That’s a pretty good standard for life and for the law, and even though I left the unit in 1995, I like to think that some of my teaching had carried over when the 72nd refused to participate in misconduct at Iraq’s Abu Ghraib prison.

Sometimes, though, the questions we face about detainees and interrogation get more specific. One such set of questions relates to “waterboarding.”

That term is used to describe several interrogation techniques. The victim may be immersed in water, have water forced into the nose and mouth, or have water poured onto material placed over the face so that the liquid is inhaled or swallowed. The media usually characterize the practice as “simulated drowning.” That’s incorrect. To be effective, waterboarding is usually real drowning that simulates death. That is, the victim experiences the sensations of drowning: struggle, panic, breath-holding, swallowing, vomiting, taking water into the lungs and, eventually, the same feeling of not being able to breathe that one experiences after being punched in the gut. The main difference is that the drowning process is halted. According to those who have studied waterboarding’s effects, it can cause severe psychological trauma, such as panic attacks, for years. [complete article]

EDITORIAL: The real world of torture

Jack Bauer vs. Abdallah Higazy — Fiction vs. Reality
By Paul Woodward, War in Context, November 6, 2007

According to a new CNN poll, 69 percent of Americans believe that waterboarding is a form of torture. Even so, a staggering 40 percent of Americans polled believe that the US government should be allowed to use this form of torture to get information from suspected terrorists.

Commentators on this issue have expressed moral outrage — “waterboarding is killing America’s soul,” proclaims the Philadelphia Daily News‘ “Attytood.” Some see this as an afront to American pride — Keith Olbermann challenges President Bush by saying, “[We don’t condone torture] because we’re Americans, sir, and we’re better than that. We’re better than you.” While there are those who express indifference — the Wall Street Journal regards this as “mostly a political sideshow.”

Yet for those 40 percent of Americans who favor the use of torture, their view has in all likelihood been clearly expressed by Democratic Senator, Charles Schumer, who in a 2004 Senate hearing said:

I think there are probably very few people in this room or in America who would say that torture should never ever be used, particularly if thousands of lives are at stake. . . . It is easy to sit back in the armchair and say that torture can never be used, but when you are in the foxhole it is a very different deal. And I respect, I think we all respect the fact that the President is in the foxhole every day.

This then is how the issue is being framed: on one side are those who see themselves adopting the moral high ground — though their critics perceive them as being holier-than-thou, starry-eyed idealists; and on the other side are those who believe in the necessity of making tough choices in extreme circumstances — though their opponents see them as having lost their moral bearings.

At the center of this debate is an argument of perceived necessity. And the narrative that animates this argument, borrowed from Israel and used there in an earlier debate on the legitimacy of torture, is the “ticking bomb” scenario.

The scenario itself is fanciful. We are all familiar with the suspense movie in which the reality of what is feared is confirmed by making the audience privilege to the whereabouts of a bomb and the time left before it will explode. In post-9/11 America the impact of such dramas has been heightened by the likes of Fox TV’s fictional counter-terrorism agent, Jack Bauer. Let’s face it, for a population that forms most of its understanding of the world through television, such imagery has a visceral impact. But in Israel itself, where the danger of terrorism is more tangible and ubiquitous, the ticking bomb scenario is itself no less a product of fiction and has served no less as a political tool. As Stephen Langfur wrote in 1996:

Israel wants to present itself as an enlightened democracy on the Western model, but it has locked itself into the role of Occupier, with the result that toward part of the population under its control it must behave like a police-state. The “ticking bomb scenario” offers an exceptional, border-line situation, in which everyone can understand that even an enlightened democracy might have to use torture. What Israel does, therefore, is to extend the fantasy of the bomb in the crowded building to include analogous situations—even remotely analogous. Israel can then allow its security apparatus to approach interrogations as if they were all “ticking bombs.” Thus it can keep wearing the mask of an enlightened democracy, while functioning like a police-state. The “ticking bomb scenario,” for which torture is useless, “koshers” other situations where torture can be useful.

Indeed, Langfur points out that Israeli General Security Service officials used the ticking bomb argument to intimidate judges. After all, who would be willing to curtail an interrogation and thereafter be accused of having failed to prevent carnage? Yet in practice, so-called ticking bombs turned out to be prisoners who had been held in detention for weeks — plenty of time for plots to be revised and for the seeming inevitability of any attack to evaporate.

If an interrogation method’s “necessity” was to be based on the magnitude of a risk averted, then any technique applied to bring about the desired result would surely be justifiable. On what basis could one say that it was acceptable to use waterboarding to make the prisoner fear that he was about to drown, yet bleach could not be poured in his eyes, if in both cases the justification for the brutality was the necessity of saving innocent Israeli or American lives? If brutality can be graded on a scale, then on what basis can we say that in one instance the end justify the means while in another it does not, when necessity is determined by the end and not the means?

The issue here cannot be addressed or resolved by considering fictional scenarios. Instead we need to focus on reality and fortunately there is already one case that provides the perfect litmus test: the case of Abdallah Higazy.

On December 17, 2001, Higazy was detained and questioned by the FBI and then held as a material witness, suspected of being an accomplice in the 9/11 attacks on the World Trade Center in New York. He had been staying in a nearby hotel and was thought to have been in possession of an air-band transceiver capable of air-to-air and air-to-ground communication that could have been used as a beacon to direct the hijacked aircraft into their targets, the Twin Towers. As a terrorist suspect Higazy was as hot as they get.

Under interrogation he kept on changing his story. He had to be lying. FBI agents said they gave Higazy a “polygraph” yet the United States Court of Appeals opinion [PDF] quotes the suspect as saying that the test produced “intense pain.” The court opinion states that “Higazy asked whether anybody else had ever suffered physical pain during the polygraph, to which [FBI Special Agent Michael] Templeton replied: “[i]t never happened to anyone who told the truth.” Was Higazy being given a polygraph or was he being electrocuted?

The court opinion continues:

Higazy alleges that during the polygraph, Templeton told him that he should cooperate, and explained that if Higazy did not cooperate, the FBI would make his brother “live in scrutiny” and would “make sure that Egyptian security gives [his] family hell.” Templeton later admitted that he knew how the Egyptian security forces operated: “that they had a security service, that their laws are different than ours, that they are probably allowed to do things in that country where they don’t advise people of their rights, they don’t – yeah, probably about torture, sure.”

If so-called harsh interrogation methods can be justified, Abdallah Higazy was surely the perfect candidate to be given the third degree. He was suspected of having played an instrumental role in the worst terrorist attack the world has ever seen. This must have been — as Vice President Cheney would say — a no-brainer. Or not?

Anyone familiar with the name, Abdallah Higazy, will of course know that he was completely innocent. The FBI quickly realized as much when a few weeks after Higazy’s detention an airline pilot showed up looking for the radio transceiver he had left behind when he had been evacuated from his hotel on September 11.

When FBI Special Agent Templeton was interrogating his suspect, were Cheney’s words from September 16, 2001, still fresh in his mind?

We also have to work, though, sort of the dark side, if you will. We’ve got to spend time in the shadows in the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we’re going to be successful. That’s the world these folks operate in, and so it’s going to be vital for us to use any means at our disposal, basically, to achieve our objective.

Templeton certainly went to the dark side, but the terrorist he was after wasn’t there. The question that needs to be addressed now and that needs to be the concern of the next attorney general is not what methods of interrogation can be applied in a ticking bomb scenario; it is this: how should the law have protected Abdallah Higazy?

Interrogation is a means of inquiry, not a method of punishment. In the war on terrorism, the presumption of innocence should not be treated as a legal luxury — it is a recognition that suspects are not always (contrary to what the administration would have us believe) the worst of the worst, but on the contrary that with unfortunate frequency they have included the innocent.

Forget about ticking time bombs and remember Abdallah Higazy. After all, those who now want to justify torture do so in the name of protecting the innocent.

NEWS: The torture test

Bush administration blocked waterboarding critic
By Jan Crawford Greenburg and Ariane de Vogue, ABC News, November 2, 2007

A senior Justice Department official, charged with reworking the administration’s legal position on torture in 2004 became so concerned about the controversial interrogation technique of waterboarding that he decided to experience it firsthand, sources told ABC News.

Daniel Levin, then acting assistant attorney general, went to a military base near Washington and underwent the procedure to inform his analysis of different interrogation techniques.

After the experience, Levin told White House officials that even though he knew he wouldn’t die, he found the experience terrifying and thought that it clearly simulated drowning. [complete article]

Editor’s Comment — Does Cheney have as much guts as an acting assistant attorney general? Or does he think waterboarding guidelines should include a clause that exempts anyone with a pacemaker?

Mukasey all but a shoo-in for approval
By Richard B. Schmitt, Los Angeles Times, November 3, 2007

Michael B. Mukasey appeared on Friday to be all but assured of becoming the nation’s 81st attorney general when two Senate Democrats broke ranks and said they would support the retired federal judge to head the Justice Department.

While acknowledging serious concerns about his views on interrogation techniques, Sens. Dianne Feinstein of California and Charles E. Schumer of New York said they would vote to confirm Mukasey when the Senate Judiciary Committee takes up his nomination to succeed Alberto R. Gonzales on Tuesday. [complete article]

See also, John Dean on Mukasey (TPM) and The torture litmus test (Scott Horton).

NEWS: Mukasey: Bush and Cheney’s defense attorney

Nominee’s stand may avoid tangle of torture cases
By Scott Shane, New York Times, November 1, 2007

In adamantly refusing to declare waterboarding illegal, Michael B. Mukasey, the nominee for attorney general, is steering clear of a potential legal quagmire for the Bush administration: criminal prosecution or lawsuits against Central Intelligence Agency officers who used the harsh interrogation practice and those who authorized it, legal experts said Wednesday.

On Wednesday, Senator Patrick J. Leahy, Democrat of Vermont, the chairman of the Senate Judiciary Committee, scheduled a confirmation vote for Tuesday amid deep uncertainty about the outcome at the committee level. If Mr. Mukasey’s nomination reaches the Senate floor, moderate Democrats appear likely to join Republicans to produce a majority for confirmation. But a party-line vote in the Judiciary Committee, which seemed a possibility, could block the nomination from reaching the floor.

The biggest problem for Mr. Mukasey remains his refusal to take a clear legal position on the interrogation technique. Fear of opening the door to criminal or civil liability for torture or abuse, whether in an American court or in courts overseas, appeared to loom large in Mr. Mukasey’s calculations as he parried questions from the committee this week. Some legal experts suggested that liability could go all the way to President Bush if he explicitly authorized waterboarding. [complete article]