Wednesday, May 13, 2009

“Torture Memos” an “Ethical Trainwreck”

By William Fisher

“An ethical train wreck” was the phrase used by one witness to describe the legal reasoning behind the Justice Department’s recently released memos justifying the use of waterboarding and other forms of “enhanced interrogation techniques.”

The phrase came during the testimony of David Luban, a law professor at Georgetown University, before a panel on administrative oversight and the courts subcommittee of the Senate Judiciary Committee today.

Sen. Sheldon Whitehouse, a Rhode Island Democrat, chaired the hearing. Whitehouse said the administration of former President George W. Bush inundated the American public in a "near avalanche of falsehood" on the subject of detainee treatment.

"We were told that waterboarding was determined to be legal, but were not told how badly the law was ignored, bastardized and manipulated by the Department of Justice's Office of Legal Counsel nor were we told how furiously government and military lawyers rejected the defective OLC opinions," Whitehouse said.

The panel also heard from Bush-era State Department counselor Philip Zelikow, who testified that he unsuccessfully dissented from the Justice Department view that harsh interrogation practices were either legal or moral.

He told the subcommittee – the first congressional panel to address allegations of torture -- that Bush administration officials engaged in a "collective failure" on detention and interrogation of suspected terrorists.

He added that the issue was one that senior Bush Administration officials did not wish to discuss. He told the panel that he was ordered to rescind a dissenting memorandum he had written on the interrogation issue and to find and destroy all copies of it.

Zelikow, who served as executive director of the 9/11 Committee that investigated the terrorist attacks of September 11, 2001, said that Justice Department memos on “enhanced interrogation techniques” were "unsound, even unreasonable." He called for a "thorough public inquiry" into the issue.

"The U.S. government adopted an unprecedented program of coolly calculated dehumanizing abuse and physical torment to extract information," Zelikow said.

"This was a mistake, perhaps a disastrous one. It was a collective failure,” he said.

The panel also heard from a retired special agent of the Federal Bureau of Investigation (FBI), Ali Soufan, who interrogated some suspected al-Qaeda detainees in the U.S. embassy bombings in East Africa, testified from behind a screen to hide his identity.

Soufan said he gained valuable intelligence by using traditional non-coercive FBI interrogation techniques when questioning suspected al Qaeda prisoners.

He said he was replaced at the insistence of the Central Intelligence Agency (CIA), which he said was using inexperienced contractors, not CIA operatives, to conduct interrogations.

Soufan told senators that so-called enhanced interrogation techniques were ineffective and unreliable, and "as a result harmful to our efforts to defeat al-Qaeda."

"It was one of the worst and most harmful decisions made in our efforts against al Qaeda," he said.

A cautious counterpoint was provided throughout the hearing by Senator Lindsey Graham, a conservative Republican from South Carolina, who has served for many years as a military lawyer in the U.S. Air Force Reserve.

Graham repeatedly made the point that those who pressed for more aggressive interrogation techniques were not “evil” people, but simply those who were trying to protect the American people from the next terrorist attack on the U.S.

He said it should come as no surprise that responsible lawyers can look at the same facts and come to honestly different conclusions.

Prof. Luban disagreed with that reasoning. He told the committee he thought it “impossible that lawyers of such great talent and intelligence could have written these memos in the good faith belief that they accurately state the law." He added that Justice Department lawyers had a special responsibility not to "rubber stamp administration policies" or "provide cover for illegal actions."

Luban concluded that memos written by Justice Department lawyers in the administration of former president George W. Bush "cherry pick" legal precedents and fail to consider or mention a 1983 case in which Texas law enforcement officers were prosecuted and jailed for waterboarding prisoners to make them confess.

"A legal adviser must use independent judgment and give candid, unvarnished advice," Luban said.

Three Bush-era lawyers, all working in the DOJ’s Office of Legal Counsel, are the authors of a series of controversial memos recently released by the Obama Administration. The so-called “torture memos” were written by JohnYoo, now a law professor in California, Jay Bybee, now a federal appeals court judge, and their successor in the office, Steven G. Bradbury.

The Office of Legal Counsel is the DOJ unit that provides the president and other senior government officials with definitive opinions on a wide range of issues. Its views traditionally carry great weight.

Today’s testimony came amid calls for these lawyers – and their superiors – to be criminally prosecuted, disbarred, or investigated in depth as part of a wider Congressional probe of former government officials and contractors for their activities during the Bush war on terror.

The chairman of the Senate Judiciary Committee, Sen. Patrick Leahy, a Vermont Democrat, has proposed a “truth commission” to investigate potential Bush-era war crimes. Others, including many human rights groups, have pressed for appointment of a special prosecutor by the Department of Justice. An investigation is currently being carried out by the Senate Intelligence Committee. However, most of the testimony in that probe will be secret because of the classified material involved, and it will be many months before the investigation is completed.

President Obama’s reaction to these and other approaches has ranged from lukewarm to ambivalent. While noting that “no one is above the law,” he has said repeatedly that his inclination is to look forward, not backward.


By William Fisher

Human rights advocates and legal scholars fear that the administration of U.S. President Barack Obama may resurrect the Military Commissions designed by their predecessor to try Guantanamo detainees after Obama’s 120-day moratorium on proceedings expires on May 20.

That possibility appeared to moved a step closer to reality when Guantanamo’s chief judge refused to delay a May 27 pre-trial hearing for Ahmed Al-Darbi, 34, a Saudi Arabian accused of providing material support for terrorism and participating in a conspiracy to commit murder and other crimes. Military authorities also allege that he conspired with al Qaeda in a never-realized 2000-2002 plot to bomb vessels at sea in the Straits of Hormuz. He has been a U.S. prisoner since 2002, first at Bagram Air Field in Afghanistan, and since 2003 at Guantanamo.

Darbi’s hearing will be the first commission session since President Obama took office and ordered the freeze on war court proceedings. The Guantanamo judge, Army Col. James Pohl, ruled that defense lawyers had ample notice to prepare for the one-day hearing.

Judge Pohl’s ruling ordering the May 27 hearing noted that
“There has been no change in the statutory or regulatory scheme governing military commissions."

In setting that date, Pohl said he was "not trying to influence the Administration's review" and would consider adjusting or canceling the hearing if there "are changes between now and May 27.”

The major issue at the al-Darbi hearing is how much evidence might be presented at his military trial in a bid to show that he was tortured into confessing crimes he now denies. Darbi's lawyer, Ramzi Kassem of the Yale University law school, is trying to prevent Pentagon prosecutors from using as trial evidence dozens of the Saudi's self-incriminating statements, which the lawyer claims were obtained through brutal treatment during interrogations at Bagram Air Base in Afghanistan and at Guantanamo Bay.

Darbi's attorney has requested that two documentary films describing a climate of abuse at the time of Darbi's interrogations be introduced as evidence.

During his first week in office, President Obama ordered a case-by-case review of all detainees held at Guantanamo. Al-Darbi’s lawyer told us he doesn’t know if Darbi’s case has been reviewed by Obama Administration.

But he was certain that his client could not find justice at a Military Commission trial, whether it was held in Guantanamo or in the U.S.

He told us, “The (George W.) Bush administration decided on using the Guantanamo Bay naval base in Cuba because they considered it a law-free zone, but the courts decided otherwise. Now that the Obama Administration has pledged to close the base, they seem to be thinking of moving the Military Commissions to the U.S. mainland, perhaps with a few detainee protections added.”

However, he added, “There is no amount of tinkering that will make Military Commissions ‘better’. This is a system designed to produce convictions, not justice.”

Kassem also said, “There is no reason to revert to this failed system. We already have a proven criminal justice system in the U.S. That system has demonstrated over 120 times that it is well equipped to try people accused of terrorism and to deal with national security matters. Why should we need to invent another system?”

Al-Darbi has also filed a habeas corpus petition in federal court in Washington, D.C.

The Defense Department says Darbi is the brother-in-law of one of the 9/11 hijackers aboard American Airlines Flight 77, which crashed into the Pentagon. While Darbi is not accused of involvement in 9/11, military authorities say he conspired with al Qaeda in a never-realized 2000-2002 plot to bomb vessels at sea in the Straits of Hormuz. He also allegedly met Osama bin Laden and trained in an Afghan al Qaeda camp.

The Bush-era Military Commissions have had a bumpy history. In a series of orders in 2001 and 2002, the Bush administration created a system of tribunals that specifically did not adhere to the standards set out in the Geneva Convention, arguing that as "non-state actors'' the suspects were not entitled to that kind of protection; the system was also declared to be beyond review by federal courts.

The government then established a prison camp at Guantánamo Bay Naval Base in Cuba to hold these prisoners away from federal court jurisdiction, arguing that the right of habeas corpus — the fundamental right, centuries old, to ask a judge for release from unjust imprisonment -- did not apply to foreigners being held outside the U.S. as enemy combatants.

But, in 2004, the Supreme Court disagreed, in a case known as Rasul v. Bush. And in another decision in June 2006, Hamdan v. Rumsfeld, the high court struck down military tribunals that the Bush administration had established shortly after the Sept. 11 attacks. The court ruled that the tribunals violated the Constitution and the Geneva Conventions.

In response, the Bush Administration and Congress effectively rewrote the law, by passing the Military Commissions Act of 2006. The measure broadened the definition of enemy combatants beyond the traditional definition used in wartime, to include non-citizens living legally in the United States as well as those in foreign countries and anyone determined to be an enemy combatant under criteria defined by the president or secretary of defense.

In place of habeas proceedings, it said detainees could challenge their imprisonment only through hearings known as combatant status review trials. It allowed evidence seized in the U.S. or abroad without a search warrant to be admitted in trials. And while the bill barred the admission of evidence obtained by cruel and inhuman treatment, it made an exception for any obtained before Dec. 30, 2005, when Congress enacted the Detainee Treatment Act banning torture.

But, in a June 2008 decision in the case of Boumediene v. Bush, the Supreme Court overturned those portions of the law, finding that foreign terrorism suspects held at Guantánamo Bay have constitutional rights to challenge their detention in United States courts. In a harsh rebuke of the Bush administration, the Court rejected the administration’s argument that the individual protections provided by the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 were more than adequate.

Meanwhile, human rights groups continue to oppose trials under the Military Commissions Act. Amnesty International says, “Any trials of Guantánamo detainees should be conducted before US federal civilian courts in trials that meet international standards.”

The organization called on the Obama administration to abandon the commissions altogether, withdraw all charges under the Military Commissions Act (MCA), and transfer to the U.S. mainland any Guantánamo detainee who was to be charged, bring him before a civilian judicial authority, and promptly charge him with specific offences under applicable federal law.

The American Civil Liberties Union (ACLU) expressed a similar view. Its executive director, Anthony D. Romero, said, "The Obama administration's purported plans to resuscitate the Guantanamo military commissions and ship them onto American soil is fatally flawed. The military commissions are built on unconstitutional premises and designed to ensure convictions, not provide fair trials. Reducing some but not all of the flaws of the tribunals so that they are 'less offensive' is not acceptable; there is no such thing as 'due process light.' Our justice system depends upon basic principles of fairness and transparency and once they are compromised even a little, they are rendered meaningless”.