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The War Profiteers - War Crimes,
Kidnappings & Torture |
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June 6th,
2009 - U.S. Lawyers Agreed on the Legality of Brutal Tactic |
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U.S. Lawyers Agreed on the
Legality of Brutal Tactic By Scott Shane & David Johnston New York Times June 6, 2009 Washington - When Justice
Department lawyers engaged in a sharp internal debate in 2005 over brutal
interrogation techniques, even some who believed that using tough tactics was
a serious mistake agreed on a basic point: the methods themselves were legal. Previously undisclosed
Justice Department e-mail messages, interviews and newly declassified
documents show that some of the lawyers, including James B. Comey, the deputy
attorney general who argued repeatedly that the United States would regret
using harsh methods, went along with a 2005 legal opinion asserting that the
techniques used by the Central Intelligence Agency were lawful. That opinion, giving the
green light for the C.I.A. to use all 13 methods in interrogating terrorism
suspects, including waterboarding and up to 180 hours of sleep deprivation,
“was ready to go out and I concurred,” Mr. Comey wrote to a colleague in an
April 27, 2005, e-mail message obtained by The New York Times. While signing off on the
techniques, Mr. Comey in his e-mail provided a firsthand account of how he
tried unsuccessfully to discourage use of the practices. He made a last-ditch
effort to derail the interrogation program, urging Attorney General Alberto
R. Gonzales to argue at a White House meeting in May 2005 that it was
“wrong.” “In stark terms I explained
to him what this would look like some day and what it would mean for the
president and the government,” Mr. Comey wrote in a May 31, 2005, e-mail
message to his chief of staff, Chuck Rosenberg. He feared that a case could
be made “that some of this stuff was simply awful.” The e-mail messages are now
in the hands of investigators at the department’s Office of Professional
Responsibility, which is preparing a report expected to be released this
summer on the Bush administration lawyers who approved waterboarding and
other harsh methods. The inquiry, under way for nearly five years, will be
the Justice Department’s fullest public account of its role in the
interrogation program, which President Obama has ended. In years of bitter public
debate, the department has sometimes seemed like a black-and-white moral
battleground over torture. The main authors of memorandums authorizing the
methods - John C. Yoo, Jay S. Bybee and Steven G. Bradbury - have been widely
pilloried as facilitators of torture. Others, including Mr. Comey,
Jack Goldsmith and Daniel Levin, have largely escaped criticism because they
raised questions about interrogation and the law. But a closer examination
shows a more subtle picture. None of the Justice Department lawyers who
reviewed the interrogation question argued that the methods were clearly
illegal. For example: - Mr. Goldsmith, now a
Harvard law professor, unnerved the C.I.A. in June 2004 by withdrawing a 2002
memorandum written by Mr. Yoo that said only pain equal to that produced by
organ failure or death qualified as torture. In addition, in a previously
undisclosed letter to the agency, Mr. Goldsmith put a temporary halt to
waterboarding. But he left intact a secret companion memorandum from 2002
that actually authorized the harsh methods, leaving the C.I.A. free to use
all its methods except waterboarding, including wall-slamming, face-slapping,
stress positions and more. - Mr. Levin, now in private
practice, won public praise with a 2004 memorandum that opened by declaring
“torture is abhorrent.” But he also wrote a letter to the C.I.A that
specifically approved waterboarding in August 2004, and he drafted much of
Mr. Bradbury’s lengthy May 2005 opinion authorizing the 13 methods. - Mr. Comey, who had forced
a 2004 showdown with White House officials over the National Security
Agency’s surveillance program, concurred in that Bradbury opinion. His
objections focused on a second legal opinion that authorized combinations of
the methods. He expressed “grave reservations” and asked for a week to revise
the memorandum, warning Mr. Gonzales that “it would come back to haunt him
and the department,” Mr. Comey said in a 2005 e-mail to Mr. Rosenberg. Justice Department lawyers
involved in the opinions felt torn between what was legal and what was
advisable, Mr. Levin said. “Obviously you can only do that which is legal,”
he said in a recent interview. “But that does not mean you should
automatically do something simply because it is legal.” The e-mail messages and
documents provide new details about a critical year in the interrogation
saga, beginning in mid-2004. The C.I.A. inspector general had questioned the
legality and effectiveness of the harsh methods, prompting a review of the
program. Under intense White House pressure, the Justice Department lawyers
in May 2005 approved a series of opinions that reauthorized the harshest
practices. The lawyers had to interpret
a 1994 antitorture law written largely with despotic foreign regimes in mind,
but used starting in 2002, in effect, as a set of guidelines for American
interrogators. The law defined torture as treatment “specifically intended to
inflict severe physical or mental pain or suffering.” By that standard, a
succession of Justice Department lawyers concluded that the C.I.A.’s methods
did not constitute torture. The only issues that
provoked debate were waterboarding, which Mr. Goldsmith questioned, and some
combinations of multiple techniques, which Mr. Comey resisted. Some outside experts agree
that the language of the 1994 law is strikingly narrow. “There’s no doubt
whatsoever that a great deal of coercive treatment that most people would
call torture is not prohibited by the federal antitorture statute,” said
Benjamin Wittes, a Brookings Institution scholar who has studied
interrogation policy. But many believe that even
under that law, the Justice Department should have recognized that
waterboarding, at least, was torture. To argue otherwise, said Brian Z.
Tamanaha, a St. John’s University law professor who has studied the
interrogation memorandums, required “extraordinary contortions in language
and legal analysis.” Waterboarding, the
near-drowning method that Mr. Obama has described as torture, was used on
three operatives for Al Qaeda in 2002 and 2003. The C.I.A. never used the
technique after it was reauthorized in 2005. C.I.A. officials had been
nervous about the legality of their proposed methods from the start in 2002.
They had asked Michael Chertoff, then head of the Justice Department’s
criminal division, to grant interrogators immunity in advance from
prosecution for torture. Mr. Chertoff refused, but neither did he warn the
agency against the methods it was proposing. The agency’s worst fears
about the potential liability of its officers returned with a vengeance in
2004, after the sharp criticism from the agency’s inspector general and Mr.
Goldsmith’s withdrawal of the first torture memorandum. C.I.A. officials
demanded a comprehensive legal review. But Mr. Goldsmith resigned
in July 2004, and his successor as acting head of the Office of Legal
Counsel, Mr. Levin, quickly set to work on the review, assisted by his top
deputy, Mr. Bradbury. On July 22, 2004, the
Justice Department offered the C.I.A. interim assurance that it could use all
methods except waterboarding, which Mr. Goldsmith had questioned. On Aug. 6,
Mr. Levin issued another interim letter reauthorizing waterboarding, as long as
rules were followed. But in February 2005, when
Mr. Levin moved to a job as legal adviser to the National Security Council,
the new interrogation opinions had not been approved by all necessary
officials. The day before his departure, Mr. Levin stopped by and apologized
to Mr. Bradbury for leaving it to him to sign the volatile documents. By April 2005, the opinions
were in final form, and Mr. Comey, who had set his own resignation for
August, concurred in the 46-page opinion affirming the legality of the 13
techniques. But he told Mr. Gonzales that he strongly objected to Mr.
Bradbury’s second opinion, allowing multiple techniques to be used in a
single interrogation session. Mr. Gonzales told him that
he was “under great pressure” from Vice President Dick Cheney to complete
both memorandums and that President George W. Bush had asked about them, Mr.
Comey recounted in one of the 2005 e-mail messages. Later, after reading a
revised draft of the second opinion, Mr. Comey added that “my concerns were
not allayed, only heightened.” He said he wanted more time to fix the
memorandum, but Mr. Gonzales’s chief of staff, Theodore Ullyot, told him the
White House would not wait. Mr. Comey wanted an analysis
centered on actual interrogations in an effort to limit the type and
combination of techniques that would be permissible, according to someone
familiar with his thinking. “I told him the people who
were applying pressure now would not be there when the [expletive] hit the
fan,” Mr. Comey wrote in another e-mail message. “It would be Alberto
Gonzales in the bull’s-eye. I told him it was my job to protect the
department and the A.G. and that I could not agree to this because it was
wrong. I told him it could be made right in a week, which was a blink of an
eye, and that nobody would understand at a hearing three years from now why
we didn’t take that week.” Copyright 2009 The New York
Times Company External link: http://www.nytimes.com/2009/06/07/us/politics/07lawyers.html The NYT’s nice, new
euphemism for torture By Glenn Greenwald Salon magazine June 6, 2009 In today's New York Times,
William Glaberson describes a proposal being circulated by the Obama
administration to enable Guantanamo detainees to be put to death upon a mere
guilty plea, i.e., without the need for a full-blown trial. The article describes the purpose of the
proposal this way: The proposal would ease what has come to be recognized as the
government’s difficult task of prosecuting men who have confessed to
terrorism but whose cases present challenges. Much of the evidence against
the men accused in the Sept. 11 case, as well as against other detainees, is
believed to have come from confessions they gave during intense
interrogations at secret C.I.A. prisons. In any proceeding, the reliability
of those statements would be challenged, making trials difficult and drawing
new political pressure over detainee treatment. The primary reason to avoid
trials upon a guilty plea is to prevent public disclosure of the details of
the torture we inflicted on these detainees. Despite that, the word "torture"
never once appears in this NYT article. Instead, according to the NYT,
detainees in CIA black sites were merely subjected to "intense
interrogations." That's all? Who
opposes "intense interrogations"? This active media complicity
in concealing that our Government created a systematic torture regime - by
refusing ever to say so - is one of the principal reasons it was allowed to
happen for so long (though see Jake Tapper's imperfect though still far
superior formulation today on his ABC News blog about an Obama DHS appointee
who just withdrew his nomination because of his possible "knowledge of
and role in approving brutal interrogation techniques - some of which qualify
under international law as torture - used by CIA officials against detainees"). The steadfast, ongoing
refusal of our leading media institutions to refer to what the Bush administration
did as "torture" - even in the face of more than 100 detainee
deaths; the use of that term by a leading Bush official to describe what was
done at Guantanamo; and the fact that media outlets frequently use the word
"torture" to describe the exact same methods when used by other
countries - reveals much about how the modern journalist thinks. These are their governing principles: There are two sides and only
two sides to every "debate" - the Beltway Democratic establishment
and the Beltway Republican establishment. If those two sides agree on X, then
X is deemed true, no matter how false it actually is. If one side disputes X,
then X cannot be asserted as fact, no matter how indisputably true it is. The
mere fact that another country's behavior is described as X doesn't mean that
this is how identical behavior by the U.S. should be described. They do
everything except investigate and state what is true. In their view, that - stating
what is and is not true - is not their role. The whole world knows that
the U.S. tortured detainees in the "War on Terror." Yet American
newspapers refuse to say so. External link: http://www.salon.com/opinion/greenwald/2009/06/06/nyt/ |