Those Vanishing Emails!

By William Fisher

The Justice Department investigation into whether the authors of the Bush-era “torture memos” were guilty of professional misconduct did not have full access to the emails used by those lawyers and by other key figures in the investigation, including former Attorney General John Ashcroft and former counsel to the Vice President David Addington.

The missing emails came to light during a hearing of the Senate Judiciary Committee TODAY (Friday). Committee chairman Patrick Leahy, a Democrat from Vermont, described the vanishing emails as “suspicious.”

He urged the sole witness before the committee, Acting Deputy Attorney General Gary G. Grindler, to investigate further to determine who deleted the emails and whether they could be recovered.

The email issue recalled the 2007 investigation into the firing of eight U.S. Attorneys during the administration of President George W. Bush, and whether the White House pressured the Justice Department to cover up the details of the firings. Administration officials insisted that millions of emails from senior Bush figures including political advisor Karl Rove were irretrievably missing. The emails were later recovered. The disclosures were important factors in the resignation of former Attorney General Alberto Gonzales.

The Justice Department’s investigation into the torture memos, conducted by the DOJ’s Office of Professional Responsibility (OPR), was highly critical of its authors but concluded that they were guilty of poor judgment but not professional misconduct meriting referral to state legal organizations for possible disbarment.

The authors of the memos were Jay Bybee, who was Deputy Assistant Attorney General, and his assistant, John Yoo. Bybee is now a federal judge and Yoo is a law professor.

Bybee and Yoo worked in the DOJ’s Office of Legal Counsel (OLC). OLC is one of the most important offices within the Department of Justice. It is to this office that the president directs questions about the legality of actions his administration plans to take or policies it intends to adopt.

Human Rights First, a legal advocacy group that has closely followed this issue, is urging members of the Senate Judiciary Committee to address questions that remain unanswered following the release of Department of Justice’s Office of Professional Responsibility (OPR) report.

HRF called the conduct of Bybee and Yoo “unethical and unprofessional.”

The organization noted that the Judiciary Committee hearing “should lay the groundwork for further investigation and address the need to empanel a non-partisan commission to conduct a comprehensive review of these policies.”

Daphne Eviatar, a Human Rights First attorney who monitored the Senate hearing, told IPS she was "disappointed" that "there was no indication that DOJ has any intention of following up on the evidence revealed in the report indicating that the Office of Legal Counsel (OLC) was pressured by the White House to create legal justifications for illegal techniques that the administration had already decided to use. And if that's true, then we're talking about a criminal conspiracy, which the department is obligated to investigate further."

She added, “I was disappointed to hear that the Justice Department's attitude towards the matter was that it's now over.”

Leahy’s call for a further investigation drew strong objections from the Committee’s ranking Republican member, Senator Jeff Sessions of Alabama and another Republican member, Senator John Cornyn of Texas. Both strongly defended the actions taken by the Bush Administration following the terrorist attacks of September 11th 2001 as being necessary to protect U.S. national security.

HRF said the OPR report “highlights the lack of independent judgment and perverse legal reasoning that shaped the ‘torture memos’ and underscores the need for an independent review of how torture and other abuse of prisoners were authorized after 9/11. It provides the clearest picture to date of a flawed process by which the Justice Department’s Office of Legal Counsel (OLC), which is supposed to render independent legal advice, was instead subverted to provide conclusions justifying detainee abuse that principals within the Bush administration wanted to hear.”

The organization said the report also highlights in detail the flawed legal analysis by the three principal authors of the legal memoranda who gave a green light to the use of torture techniques documented in the CIA Inspector General’s report made public in August.

It sharply criticized the quality of the legal work in the memoranda, concluding that “of the lawyers who wrote these memos, Yoo committed intentional professional misconduct and Bybee acted in reckless disregard of his obligation to provide thorough, objective and candid legal advice.”

“Although the Associate Deputy Attorney General declined to adopt this opinion, choosing instead to characterize the lawyers’ work as an exercise of ‘poor judgment’, the fact remains that the individuals who investigated and analyzed the evidence found that Yoo’s misconduct was ‘intentional’ and that Bybee’s was ‘reckless.’ That calls into question the good faith of both of these lawyers, and demands further investigation,” HRF charged.

Following his earlier review of the OPR report, as well as the May 2004 CIA Inspector General’s report that detailed appalling abuses committed against prisoners in the CIA’s interrogation program, Attorney General Eric Holder announced in August 2009 the appointment of a prosecutor to conduct a preliminary review into only those prisoner abuses that exceeded the bounds of what was deemed permissible in the flawed OLC “torture memos.”

“The United States, to its credit, has a strong record of criticizing arbitrary detention and detainee abuse in other countries. In order to restore its credibility and leadership on human rights, the United States must engage in a full accounting of how policies of cruelty were authorized. A thorough and public examination of the past is vital in order to guard against future authorization of abuse in the name of national security,” Massimino concluded.

Other human rights and civil liberties groups took similar positions. “Laura W. Murphy, Director of the Washington legislative office of the American Civil Liberties Union (ACLU) said, “It is critical today that senators make clear that, given the information in the OPR report and the wealth of other evidence in the public domain, the Justice Department’s criminal investigation into the torture program must be broad enough to include those who authorized and legally sanctioned these shameful acts.”

Blackwater’s Migraines Multiply

By William Fisher

Legal headaches are growing exponentially for the security firm formerly known as Blackwater – once the darling of the military-industrial community.

In separate developments, two former employees of the company previously charged that the security firm committed "systematic fraud" under their contracts with the U.S. State Department in Iraq and Afghanistan, the Iraqi government announced it would seize heavy weapons from foreign security firms and expel ex-Blackwater contractors still in the country, and a US Senate hearing learned that Blackwater employees stole more than 500 assault rifles intended for the Afghan police force.

The accusations of fraud came from two former employees who filed a false claims lawsuit that allows the employees, acting as whistleblowers, to win a portion of any public money the government recovers as a result of the information.

The Washington Post reports that the former Blackwater (now known as Xe Services) employees, Brad and Melan Davis, accused the firm of over-billing for travel, charging for liquor and spa trips and for a having a fire pit built for Blackwater staff parties, and charging for the services of a Filipino prostitute who was kept on "staff" in Afghanistan as part of the company's "Morale Welfare Recreation. "

Brad Davis was a former Marine and served as a team leader and security guard, including in a posting in Iraq. Melan Davis, his wife, worked as a finance and payroll employee. Melan Davis has accused the company of terminating her in 2008 because she questioned billing practices. Her husband resigned shortly afterward.

Blackwater changed its name to Ze -- pronounced "zee" – early last year in an effort to shed the negative baggage acquired because of its frequent run-ins with Iraqi, Afghan, U.S. and NATO forces. Blackwater Lodge & Training Center — the subsidiary that conducts much of the company's overseas operations and domestic training — has been renamed U.S. Training Center Inc.

In a related development, the Iraqi government announced that it would seize weapons from foreign security firms and expel ex-Blackwater contractors still in the country within days, according to Interior Minister Jawad al-Bolani.

The decision was triggered by the Iraqi government’s outrage over the dismissal by a U.S. court of charges against Blackwater Worldwide guards who were accused of killing 14 Iraqi civilians in Baghdad in 2007. The guards said they shot in self-defense.

The judge said there was evidence of prosecutorial misconduct. The U.S. government is appealing the dismissal of the court case. The Iraqi government, which has prohibited Blackwater from operating in Iraq, has hired U.S. lawyers to prepare a lawsuit against the company.

For many Iraqis, the killing of the 14 civilians became emblematic of the impunity from prosecution in Iraq enjoyed by foreign security contractors after the 2003 U.S. invasion. That immunity ended last year under a U.S.-Iraqi security agreement transferring sovereignty back to Iraq.

Parliamentary elections scheduled for March 7 are also fuelling Iraqi anger at Blackwater. Minister Bolani, who is running as the head of his own coalition against a slate headed by Prime Minister Nuri al-Maliki, told Reuters news service that he had "ordered that the heavy weapons used by some of the foreign security firms be collected."

And in yet another development, it emerged at a hearing of the Senate armed services committee that Blackwater employees took more than 500 assault rifles intended for the Afghan police force and routinely carried weapons without permission.

It also emerged that to burnish its negative image to win contracting business in Afghanistan, Blackwater created what one senator called a shell company. Senators said that company, Paravant, deceived U.S. officials. It claimed Blackwater was not involved but used Blackwater's past performance to establish its credentials.

"They made representations here that are wildly false," said Senator Carl Levin, a Democrat. "Everyone knew in the field it was Blackwater trying to get rid of a negative name."

Levin warned that Afghan civilians did not distinguish between troops and contractors, and that when contractors misbehaved it turned the population against US forces and encouraged them to side with the Taliban.

The Senate hearing focused in part on a December 2008 accident in which a Blackwater employee was shot in the head during what the company described as a vehicle training exercise but Levin called horseplay.

According to committee investigators, a Blackwater trainer jumped on top of a moving vehicle while carrying a loaded AK47. The vehicle hit a bump and the rifle discharged, striking another trainer in the head. At the hearing today former Blackwater officials insisted the Americans were engaged in vehicle training. Levin accused Blackwater of covering up misconduct by describing the shooting as an accident during "routine" training.

In May two Afghan civilians were killed in a shooting involving Paravant employees. Investigators later determined that the Americans had "violated alcohol policies", were not authorized to have weapons and had violated other policies. The US department of justice said the shooting had a detrimental effect on US national security.

Former Paravant official Brian McCracken acknowledged the company's trainers were carrying weapons without authorization but said they often operated in dangerous environments among armed Afghans, without US army protection.

In the aftermath of the terrorist attacks on the U.S. in September 2001, Blackwater was awarded contracts worth billions of dollars in Iraq and Afghanistan. The company provided security for U.S. embassy personnel and important visitors in those locations. Erik Prince, Blackwater’s founder and former CEO, was a substantial contributor to the Republican Party and had close ties to senior officials in the administration of George W. Bush.

Habeas Challenges for Bagram Prisoners

By William Fisher

Four men who have been imprisoned for over a year – some for almost two years – are going to U.S. federal court to challenge their detention at the notorious Bagram Air Base in Afghanistan.

The men, who their lawyers say have never engaged in hostilities against the U.S. and are not members of groups that have engaged in hostilities against the U.S., have never been told why they are being detained, permitted to speak with a lawyer or given a meaningful opportunity to challenge their detention before a court or impartial administrative board.

The habeas corpus petitions were filed by the American Civil Liberties Union (ACLU) in the U.S. District Court for the District of Columbia. The petitions ask that the four men to be given access to lawyers and be allowed to challenge the legality of their detention in court.

Jonathan Hafetz, an attorney with the American Civil Liberties Union (ACLU), told IPS, “These habeas petitions seek the basic right for an individual imprisoned indefinitely by the executive to challenge his detention in a court of law. For far too long, the U.S. has been seizing people in Afghanistan, including from their homes, and jailing them for years, without charge or a fair hearing. This serves neither out values nor our security."

He added, "A court must have a chance to decide whether it's lawful to continue imprisoning these men without charge. The U.S. practice of indefinitely detaining hundreds of people at Bagram without access to lawyers, judicial review or a fair process is a stain on our reputation in the world."

One of the petitions filed today is on behalf of Afghan brothers Sibghatullah Jalatzai, who was a translator for the U.S. military for four years before his detention nearly 20 months ago, and Samiullah Jalatzai, who was arrested without explanation at his workplace nearly 23 months ago. The second petition is on behalf of Afghan government employee Haji Abdul Wahid and his nephew Zia-ur-Rahman, who were taken from their homes by the U.S. military during a massive neighborhood sweep more than one year ago.

The petitions charge that the military does not have the authority to detain these men and that the lack of access to a court or fair process to challenge their detention violates the U.S. Constitution and international law. Attorneys on the case include ACLU lawyers and Tina Foster of the International Justice Network, which coordinates Bagram habeas litigation.

The United States is the only nation among the NATO countries participating in the conflict in Afghanistan that subjects individuals it captures to indefinite military detention. Other NATO nations reportedly detain individuals for a maximum of 96 hours and then either release them or transfer them to Afghan custody.

The ACLU said, “There is growing concern that Bagram has become the new Guantánamo, except with hundreds more prisoners held indefinitely, in harsher conditions and with less due process.”

In response to an ACLU Freedom of Information Act lawsuit seeking the disclosure of documents related to the detention and treatment of prisoners at Bagram, the Defense Department recently released for the first time a list containing the names of 645 prisoners who were detained at Bagram as of September 2009, when the lawsuit was filed. Other vital information, including their citizenship, how long they had been held, in what country they were captured and the circumstances of their capture, was redacted.

In April 2009, the ACLU filed a Freedom of Information Act (FOIA) request for records relating to the detention and treatment of prisoners held at the Bagram Airfield in Afghanistan. The ACLU is asking the Obama administration to make public records pertaining to the number of people currently detained at Bagram, their names, citizenship, place of capture and length of detention, as well as records pertaining to the process afforded those prisoners to challenge their detention and designation as "enemy combatants."

The Defense Department (DOD) partially complied with the ACLU request last month when it turned over the names of its prisoners at Bagram.

But human rights advocates have a decidedly mixed record in their attempts to persuade the courts to grant customary due process rights to Bagram detainees. In one of the few earlier cases, involving four Bagram prisoners, Judge John D. Bates ruled that three of them -- two Yemenis and one Tunisian –had the right to petition U.S. courts for their release.

But he also ruled that because the fourth prisoner, Haji Wazir, was a citizen of Afghanistan, rather than a Yemeni or a Tunisian, granting him legal rights might upset the relationship between the U.S. and Afghanistan. Judge Bates dismissed Wazir’s petition.

Wazir, an Afghan civilian who has been held at Bagram without charge for more than six years, was captured in Pakistan in 2002. He is notable because he is one of the very few captives in Bagram who has had a writ of habeas corpus filed on his behalf.

The U.S. government's Bagram detention facility has been the focus of widespread media attention and public concern for many years, but very little information is publically available about the secrecy-shrouded facility or the prisoners held there.

The U.S. government has been detaining an unknown number of prisoners at the Bagram detention facility since 2002, and recent news reports indicate that the more than 600 individuals are currently detained there – some of whom have been held for as long as six years without access to counsel or a meaningful opportunity to challenge their imprisonment. The conditions of confinement at Bagram are reportedly primitive, with allegations of mistreatment and abuse continuing to surface; in fact, at least two prisoners have died there. There is public concern in the U.S. and around the world that Bagram has become, in effect, the new Guantánamo.

The ACLU says, “Although the nation is embroiled in an intense public debate about U.S. policy pertaining to the detention and treatment of prisoners in U.S. custody, most Americans remain in the dark about the basic facts about Bagram. When prisoners are in U.S. custody and under U.S. control – no matter the location – our values and commitment to the rule of law are at stake. Now that President Obama has taken the positive step of ordering Guantánamo shut down, it is critical that we don't permit 'other Gitmos' to continue elsewhere.”

A recent investigation by journalist Anand Gopal revealed the existence of another prison on Bagram Air Base – one so secret that even the Red Cross does not have access to. It is dubbed the ‘Black Jail’ and is reportedly run by US Special Forces.