Wednesday, April 29, 2009


By William Fisher

While human rights and open-government groups are generally pleased with President Barack Obama’s rhetoric during his first 100 days, some are skeptical that he will deliver on his promises.

Typical is Amnesty International. The group says, “President Obama has made a promising start in improving the United States' human rights record in his first 100 days in office, but he must now deliver on his promises.”

The London-based rights group praised Obama for declaring that he will close the Guantanamo Bay prison, but it said after an "auspicious start" in making a swift announcement, more than 240 detainees are no closer to freedom.

"The bottom line is that... unlawful detentions at Guantanamo Bay continue, and for the vast majority of the detainees, the change in administration has so far meant no change in their situation," Amnesty said.

The group also expressed concerns about suspects held at Bagram airbase in Afghanistan, which it said remained "shrouded in secrecy." Obama had inherited a "unique opportunity" to dismantle the Bush administration's apparatus for the war on terror which had produced "brutal practices and broken lives," Amnesty said.

"The closure of Guantanamo must mark the end of the policies and practices it embodies, not merely shift those violations elsewhere, whether to Bagram... or anywhere else," Amnesty said.

The Center for Constitutional Rights – which has mobilized a small army of pro-bono lawyers to defend Guantanamo detainees – praised Omaba’s rhetoric but cautioned that “in many areas of critical importance – like human rights, torture, rendition, secrecy and surveillance – his words have been loftier than his actions.”

Vince Warren, CCR executive director, says, “On Obama's very first day in office, his administration ordered a 120-day suspension of the military commissions for Guantanamo detainees. The commissions were widely assailed for allowing evidence obtained through coercion and torture, secret evidence and hearsay evidence, all in violation of the U.S. Constitution. But Obama did not abolish the military commissions; he only hit the ‘pause’ button.”

Warren faulted Obama for not moving more quickly to close the U.S. military prison at Guantanamo Bay, Cuba.

He said, “The new president's most dramatic moment came on day three when he issued executive orders to close Guantanamo's prison camp within one year. But Guantanamo isn't yet closed. The hundreds of men held there still haven't won their freedom, nor will they necessarily have their day in fair court. Another year for men who have been held in abusive and inhuman conditions for seven years already is simply too long.”

Warren said that “secrecy was the hallmark of the Bush administration. It classified more documents than any administration in history, restricted Freedom of Information Act requests and tried to protect government officials and military contractors from being held liable for illegal actions, such as torture and wrongful death.”

“It invoked the state secrets privilege to avoid scrutiny in court and
responsibility for government action more times than any other administration,” he said, but added:.

“Obama has come down on both sides of this issue, ordering far more transparency through cooperation with Freedom of Information Act requests, while at the same time invoking state secrets in a case charging an aviation corporation with complicity in rendering a detainee to torture.”

Warren was also critical of Obama on the issue of electronic surveillance. He said, “The U.S. government used to need a warrant before it could spy on its own people. In 2002, President George W. Bush issued a secret executive order illegally authorizing the National Security Agency to wiretap Americans without a warrant. When the program was exposed, the administration secured immunity from Congress for the telecommunications companies that participated in the program. Obama still has not repudiated the executive orders supporting warrantless wiretapping and the legal opinions used to support them.”

Warren said that release of the “torture memos” prepared by lawyers in the Bush Justice Department was “welcome,” but he noted that “Obama has indicated he will not prosecute former officials who broke the law and committed crimes, saying he would rather look forward than back. For there to be no consequences for creating a torture program not only calls our system of justice into question, but it also could allow the nightmare to happen all over again.”

He said, “After the Sept. 11 attacks, Bush quickly squandered the world's enormous goodwill toward the United States. The goodwill Obama has inspired can evaporate if the rest of the world begins to see his administration continuing too many of Bush's policies.”

At the same time, a leading open-government advocacy organization, OMB Watch, said, “The president and his team have made significant progress in both the right-to-know and regulatory areas.”

But it added that “there is still much work to be done as we move deeper into Obama's term in office.”

“Overall, the Obama administration has set a strong tone on transparency, but a true assessment cannot occur until the development of agency-wide policies are put in place and fully implemented,” the group said.

“During his first full day in office, Obama successfully communicated the importance of transparency to agencies and the public by issuing memorandums on the Freedom of Information Act (FOIA) and on transparency and open government.

The FOIA memo gave instructions and guidance to the attorney general on issuing new policies on the implementation of FOIA. The transparency memo directed agencies to harness new technologies to make information available to the public and for top officials to draft a blueprint Open Government Directive. These immediate actions were followed by steps to bring greater transparency to the regulatory process and to how scientific actions in government are handled,” the group said.

But it was critical of the new president on the issues of “signing statements” and use of the “state secrets privilege” to keep cases out of court on national security grounds.

It said, “Many groups considered Obama's signing statement on the 2009 omnibus appropriations bill to be an affront to whistleblower protections. These groups have interpreted Obama's signing statement as impeding the ability of government employees to communicate with Congress. Further, in repeated court cases, Obama administration officials have insisted on maintaining the Bush administration's broad interpretation of executive branch power on the issue of state secrets. There has been no public discussion of reviewing these policies for possible revision.”

OMB Watch noted that “Despite a fierce internal debate, the Obama administration has released four Bush-era ‘torture memos’ from the Department of Justice.

But, it added, “It remains to be seen if the administration will adopt a systematic approach to releasing other important documents that have been withheld from the public.”

The group noted that, in his first 100 days in office, President Obama “has made transparency a high priority and has started significant efforts in what will be a long process of getting government to be more open.”

But, it added, “Concerns and complaints have been raised by right-to-know advocates about various activities of the administration, including the usability of the White House website, transparency of legislation before the president signs it, and more. Additionally, it is difficult to accomplish much substantive change in just 100 days; much of the real test for this administration's commitment to transparency lies ahead. However, when measured against the yardstick of the five recommendations described above, it is impossible to view the administration's accomplishments as anything other than a success.”

Overall, the group concluded, Obama “has set a positive tone for the administration with his calls for increased transparency and renewed scientific integrity throughout government, his appointments of well qualified people to serve in regulatory agencies, his reversal of harmful regulatory practices and rushed deregulatory actions, and his initiation of an open process to reform the executive order that governs the rulemaking process. For these actions, the president deserves high marks.”


By William Fisher

A coalition of 19 human rights, faith-based, and justice organizations is calling on President Barack Obama to investigate torture they charge was sanctioned by the administration of former President George W. Bush.

The group, led by the National Religious Campaign Against Torture (NRCAT), is proposing both a special prosecutor and an “independent, non-partisan commission to examine and report publicly on torture and cruel, inhuman and degrading treatment of detainees in the period since September 11, 2001.”

The campaign’s call for accountability comes just days after the release of the Senate Armed Services Committee report on interrogation and torture and the Justice Department legal memos sanctioning torture and inhumane treatment.

Rev. Richard Killmer, executive director of the National Religious Campaign Against Torture, told us, “NRCAT supports both the establishment of an independent, non-partisan Commission of Inquiry to investigate the use of torture and a Department of Justice investigation for criminal culpability of those who authorized or carried out acts of torture. Each process is important and can be pursued independently.”

He added, “A Commission will help us understand how the illegal interrogation policies came into effect and how they were implemented so that we can ensure that safeguards are in place to prevent future administrations from following the same path. A criminal investigation will send the clear message that government officials cannot violate laws against torture without facing serious criminal sanctions. If we hope to end the practice of torture by agents of the United States once and for all, we must pursue both avenues.”

The coalition proposes a commission, “comparable in stature to the 9/11 Commission,” to “look into the facts and circumstances of such abuses, report on lessons learned and recommend measures that would prevent any future abuses.”

The group’s online petition says that a commission is “necessary to reaffirm America’s commitment to the Constitution, international treaty obligations and human rights. The report issued by the commission will strengthen U.S. national security and help to re-establish America’s standing in the world.”

Organizations endorsing the effort include Amnesty International USA, the Constitution Project, Human Rights First, Human Rights Watch, the Open Society Institute, and Physicians for Human Rights.

NRCAT and its partner organizations say they have “worked together to end U.S.-sponsored torture. During 2008, the religious community advocated for a Presidential Executive Order ending torture. It happened. On January 22, President Obama issued an Executive Order halting torture.”

The coalition says the task now is “to make sure that U.S.-sponsored torture never happens again. To accomplish this goal, our nation needs to put safeguards in place to prevent its recurrence. We will better understand what safeguards are needed if we have a comprehensive understanding of what happened – who was tortured, why they were tortured, and who ordered the torture. As a nation we need the answers to those questions.”

In a letter to Attorney General Eric Holder the coalition also urges the
appointment of a Special Counsel to investigate criminal acts relating to the confinement and interrogation of detainees since Sept. 11, 2001.

The letter notes that excerpts of a recently released report from the International Committee of the Red Cross (ICRC) concluded that detainees “had been subjected to torture – a crime under both domestic and international law.”

It says, “The ICRC report, which describes conduct of shocking brutality, shows that a limited investigation is simply insufficient in this case. Government officials, from the lowest CIA officer, to the highest levels of the Executive Branch may be criminally culpable for the use of torture. Because such an investigation will include a review of the conduct of very top officials of the previous administration, and because the appearance of absolute impartiality in determining whether and whom to prosecute is critical to the public's support and understanding of such prosecutions and the laws at issue, we believe it is both wise and necessary for you to refer this investigation to a Special Counsel.”

NRCAT twice asked former Attorney General Michael Mukasey to appoint a Special Counsel to investigate both the destruction of the CIA videotapes that documented the use of “harsh” interrogation techniques against suspected terrorists and whether such techniques violated U.S. and international law.

“While an investigation was initiated into the destruction of the tapes, the investigator, John Durham, was not given the independent status of Special Counsel. Further, Attorney Durham’s investigation was limited to the destruction of the tapes; he apparently does not have the authority to investigate the lawfulness of the interrogation conduct depicted on said tapes,” the group said.

“A full, independent and public investigation into possible violations of U.S. law by high-ranking government officials in the use of ‘enhanced interrogation techniques’ is necessary.”

“The American people need to know how detainees have been treated in Iraq, Afghanistan, Guantánamo and elsewhere around the world. And they need to know that every measure has been taken to ensure that no violations of U.S. law with respect to torture and ‘cruel, inhuman and degrading treatment’ will be permitted in the future. An independent investigation is a necessary part of achieving this goal,” the group said.

Court Rebukes Bush, Obama Administrations

By William Fisher

In what may become a landmark decision, a federal appeals court ruled yesterday that the “state secrets privilege” – routinely used by the government to block lawsuits against its officials – can only be used to contest specific evidence, but not to dismiss an entire suit.

The ruling, which was hailed by human rights advocates, came in connection with a lawsuit against a company known as Jeppesen DataPlan for its role in the government’s “extraordinary rendition” program during the administration of former President George W. Bush.

The suit charges that Jeppesen knowingly participated in the rendition program by providing critical flight planning and logistical support services to aircraft and crews used by the Central Intelligence Agency (CIA) to forcibly “disappear” the five men to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture. Jeppesen is a subsidiary of aerospace giant Boeing. The lawsuit was brought by the American Civil Liberties Union (ACLU).

During the Bush administration, the government intervened when the case first came before a lower court in 2007, successfully asserting the "state secrets" privilege to have the case thrown out in February 2008. On appeal, the administration of President Barack Obama followed the same road as its predecessor. Yesterday, the appeals court reversed that decision.

But lawyers for the men who brought the case also sounded a note of caution. "This historic decision marks the beginning, not the end, of this litigation," said Ben Wizner, staff attorney with the ACLU National Security Project, who argued the case for the plaintiffs.

"Our clients, who are among the hundreds of victims of torture under the Bush administration, have waited for years just to get a foot in the courthouse door. Now, at long last, they will have their day in court. Today's ruling demolishes once and for all the legal fiction, advanced by the Bush administration and continued by the Obama administration, that facts known throughout the world could be deemed 'secrets' in a court of law."

In its ruling, the court wrote that "the Executive's national security prerogatives are not the only weighty constitutional values at stake,” adding that security depends on the "freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adhering to the separation of powers."

The three-judge appeals court panel ruled unanimously that the government could take steps to protect national secrets as the case proceeded. The suit should be dismissed only if secret information is essential for the plaintiffs to prove their case.

"According to the government's theory, the judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law," Judge Michael Hawkins said.
Allowing the government to shield its conduct from court review simply because classified information is involved "would ... perversely encourage the president to classify politically embarrassing information simply to place it beyond the reach of judicial process," Hawkins said.

The court did not address the plaintiffs' claims that they were kidnapped and tortured, but said judges have an important role to play in reviewing allegations of secret government conduct that violates individual liberties.

"As the founders of this nation knew well, arbitrary imprisonment and torture under any circumstances is a 'gross and notorious ... act of despotism,' " Hawkins said, citing language from a 2004 Supreme Court decision.

"The extraordinary rendition program is well known throughout the world," said Steven Watt, a staff attorney with the ACLU Human Rights Program. "The only place it hasn't been discussed is where it most cries out for examination – in a U.S. court of law. Allowing this case to go forward is an important step toward reaffirming our commitment to domestic and international human rights law and restoring an America we can be proud of. Victims of extraordinary rendition deserve their day in court."

He told us that he had spoken with one of the plaintiffs, Bisher Al-Rawi, who was released from Guantánamo last year without ever having been charged with a crime. Al-Rawi, now back in the U.K., told Watt, “It’s like winning the lottery.”

Yesterday’s Appeals Court ruling means that the government can assert the “state secrets” privilege for any specific piece of evidence, but not to end a case before it begins.

That means that the privilege is primarily an evidentiary privilege, a definition civil libertarians have long sought. The State Secrets Protection Act, now pending in Congress, would turn that definition into law.

The case was brought on behalf of five men who were allegedly kidnapped by the U.S. Central Intelligence Agency in 2001 and 2002.

Al-Rawi, an Iraqi citizen and long-term British permanent resident, was kidnapped and later secretly flown by the CIA to Kabul, Afghanistan. He was imprisoned, interrogated and tortured at two separate CIA facilities in Afghanistan, before being transferred to the U.S. detention facility in Guantánamo Bay, Cuba. He was imprisoned there for more than four years until his release on March 30, 2007. He returned to his home in London where he currently resides freely. No charges were ever brought against him.

Ethiopian citizen Binyam Mohamed was stripped, blindfolded, shackled, dressed in a tracksuit, strapped to the seat of a plane and flown to Morocco where he was secretly detained for 18 months and interrogated and tortured by Moroccan intelligence services. Then he was once again blindfolded, stripped, and shackled by CIA agents and flown to a secret U.S. detention facility in Afghanistan, where he was again tortured and eventually transferred to another facility and then to the U.S. Naval Station at Guantánamo. He was released without charge in February and is currently suing the British Government for being complicit with the CIA in his rendition.

Abou Elkassim Britel, an Italian citizen, was handcuffed, blindfolded, stripped, dressed in a diaper, chained, and flown by the CIA from Pakistan to Morocco where he was tortured by Moroccan intelligence agents.

In December 2001, Egyptian citizen Ahmed Agiza was chained, shackled, and drugged by the CIA and flown from Sweden to Egypt where he was severely abused and tortured and where he still remains imprisoned.

In October 2003, Mohamed Farag Ahmad Bashmilah was taken into custody by the Jordanian General Intelligence Department and tortured and interrogated. In October 2003, he was turned over to CIA agents who beat, kicked, diapered, hooded and handcuffed him before secretly transporting him to the U.S. Air Force base at Bagram, Afghanistan. He was freed in March 2006, having never faced any charges related to terrorism.

Clive Stafford Smith, director of the U.K. legal charity Reprieve, which represents Binyam Mohamed in his British suit, told us, “This is a tremendous step forward in the battle to stop corporations making money off the rendition, torture and suffering of the prisoners we represent.”

He said, “Binyam Mohamed, and perhaps many others, are one step closer to making the CEOs of these companies stop and think before they commit criminal acts for profit."

The Obama Administration now has three options. It can do nothing, which will mean the case will finally go before a U.S. court. It can ask the entire Ninth Circuit Court of Appeals to rehear the case. Or it can appeal the case to the Supreme Court.

If the case goes to trial, the government can still argue that disclosing anything about Jeppesen's relationship with the United States government would jeopardize national security secrets. But now it can no longer simply “assert” that privilege; it will have to convince a judge by arguing the point in court.

In recent years, the government has asserted the “state secrets” claim with increasing regularity in an attempt to throw out lawsuits and justify withholding information from the public about the rendition program and also about illegal wiretapping, torture and other breaches of U.S. and international law.

Assertion of the privilege has denied access to U.S. courts in a number of high profile cases, most notably the cases of Khalid Al-Masri, an innocent German who was tortured by the CIA in Afghanistan, and whistleblower Sibel Edmonds, a linguist for the Federal Bureau of Investigation (FBI) who charged that national security was being breached at the agency.

Sunday, April 26, 2009

Happy Anniversary, Abu Ghraib!

By William Fisher

This Tuesday, April 28, will mark five years since Americans got their first look at the sickening photographs from Abu Ghraib on “60 Minutes.”

And a month after that, on May 28, the Department of Justice, acting under a court order, will release several thousand never-before-seen-in-public photographs of U.S. prisoner abuse from Afghanistan and from elsewhere in Iraq.

The recent “torture memos” -- which will inform our reaction to these new photos in a way not possible at the time of the Abu Ghraib scandal -- were also released as the result of what President Obama called an unwinnable lawsuit – by the same plaintiff, the American Civil Liberties Union, and under the same law, the Freedom of Information Act, or FOIA.

We don’t yet know what we’ll see in these new images. Some members of Congress, who viewed them in a classified setting, have said they are far worse than the Abu Ghraib images.

So on May 28 we will get to see these new photos. We will again be outraged. There will be cries for investigations. Politicians will make statements. Doubtless, they will hold hearings.

But the question is “what comes next?”

To help answer that question, it might be instructive to remember what happened after Abu Ghraib.

In what has to be one of the most iconic – and absurd – statements made since the terrorist attacks of 9/11, Army Lt. Col. Mark Ballesteros told the press back in 2005 that humane treatment of detainees "is and always has been the Department of Defense standard."

Ballesteros was commenting on the so-called “Church Report,” one of more than a dozen major reviews, assessments or investigations related to the detention and treatment of war-on-terror detainees.

And Ballesteros added: "None of them found that there was a governmental policy directing, encouraging or condoning abuse."

And that has pretty much been the history of all these investigations of abuse.

They are full of sentences like, “Clearly abuses occurred at the prison at Abu Ghraib. There is no single, simple explanation for why this abuse at Abu Ghraib happened. The primary causes are misconduct (ranging from inhumane to sadistic) by a small group of morally corrupt soldiers and civilians, a lack of discipline on the part of the leaders and soldiers… and a failure or lack of leadership….”

Or try this one: “The abuses at Abu Ghraib primarily fall into two categories: a) intentional violent or sexual abuse and, b) abusive actions taken based on misinterpretations or confusion regarding law or policy.”

Or this: “Senior level officers did not commit the abuse at Abu Ghraib (but) they did bear responsibility for lack of oversight of the facility, failing to respond in a timely manner to the reports from the International Committee of the Red Cross and for issuing policy memos that failed to provide clear, consistent guidance for execution at the tactical level.”

Or this “No policy, directive or doctrine directly or indirectly caused violent or sexual abuse. In these cases, soldiers knew they were violating the approved techniques and procedures.”

Or this, from the investigation led by former Defense Secretary James Schlesinger:

“The events of October through December 2003 on the night shift of Tier 1 at Abu Ghraib prison were acts of brutality and purposeless sadism. We now know these abuses occurred at the hands of both military police and military intelligence personnel. The pictured abuses, unacceptable even in wartime, were not part of authorized interrogations nor were they even directed at intelligence targets. They represent deviant behavior and a failure of military leadership and discipline. Department of Defense reform efforts are underway and the Panel commends these efforts.”

In not a single one of these reports was the name of any high-ranking Pentagon official ever uttered.

President Bush described the perpetrators in the Abu Ghraib photos as “a few American troops who dishonored our country and disregarded our values.” He meant grunts like Lynddie England and Charles Graner – the folks who got blamed for carrying out what we now know was U.S. policy

Why could the reports of these mostly honorable officers and public servants have all gotten it so wrong?

For starters, the scope of each of these investigative assignments was determined by the Pentagon. Thus, the officer heading up the first investigation was ordered to find out what happened within the 800th Military Police (MP) Brigade in our military prisons in Iraq– and only in Iraq.

That’s how Major General Antonio Taguba came to conclude:

“I find that the 800th MP Brigade was not adequately trained for a mission that included operating a prison or penal institution at Abu Ghraib Prison Complex… I also concur that units of the800th MP Brigade did not receive corrections-specific training during their mobilization period. MP units did not receive pinpoint assignments prior to mobilization and during the post mobilization training, and thus could not train for specific missions. The training that was accomplished at the mobilization sites were developed and implemented at the company level with little or no direction or supervision at the Battalion and Brigade levels, and consisted primarily of common tasks and law enforcement training.”

But even given this limitation, Gen.Taguba concluded that the torture of prisoners at Abu Ghraib went far beyond the actions of a few sadistic military police officers -- the administration's chosen culprits. His report said 27 military intelligence soldiers and civilian contractors committed criminal offenses, and that military officials hid prisoners from the Red Cross.

And it’s worth noting that for his candor, Gen. Taguba was forced into retirement by civilian Pentagon officials because he had been ''overzealous.'' ''They always shoot the messenger,'' Taguba said.

Then, there’s the limitation that investigators can only probe down from their rank, not up the chain of command to their superiors. A Brigadier General (one star) cannot investigate a Lieutenant General (two stars); a Lieutenant General cannot investigate a Major General (three stars). And a Major General cannot investigate a General (four stars).

It was precisely for that reason that Maj. Gen. George R. Fay, one of the Abu Ghraib investigators, told his superiors that he could not complete his inquiry without interviewing more senior-ranking officers, including Lt. Gen. Ricardo S. Sanchez, the ground commander in Iraq.

Then there’s the pride factor.Most of the folks who carried out these investigations were career officers. They were proud of the military. One can see that pride in the conclusion of the 2004 report conducted by General Fay:

“Leaders and Soldiers throughout Operation Iraqi Freedom were confronted with a complex and dangerous operational environment. Although a clear breakdown in discipline and leadership, the events at Abu Ghraib should not blind us from the noble conduct of the vast majority of our Soldiers. We are a values based profession in which the clear majority of our Soldiers and leaders take great pride. A clear vote of confidence should be extended by the senior leadership to the leaders and soldiers who continue to perform extraordinarily in supporting our Nation’s wartime mission. Many of our soldiers have paid the ultimate sacrifice to preserve the freedoms and liberties that America and our Army represent throughout the world.”

So we saw the photos and learned nothing.

But the principal reason we learned nothing is that the Bush Administration wanted us to learn nothing. And a largely compliant media forgot to ask the right questions soon enough.

Remember that it was an ordinary soldier who was troubled enough by what he saw at Abu Ghraib to photograph it and put it on a CD that he turned over to his superiors. And remember that it was the military itself that announced, in 2003, that an investigation by the U.S. Army’s Criminal Investigation Command was underway into alleged prisoner abuse at Abu Ghraib.

But also remember that, back then, Donald Rumsfeld was a rock star, the darling of the press. Most of the journalists who attended his briefings were acting like stenographers.

What they didn’t know was that, by the time we got to see the Abu Ghraib photos in 2003, Jay Bybee and John Yoo had already used their contorted legal logic to write their so-called “torture memos” justifying “enhanced interrogation” techniques. By the time the Abu Ghraib photos surfaced on television, the Bush policy was already in place and being implemented. It would be five years before most of the American public began to get a glimmer of what that policy was.

Which brings me back to the new photos we’re going to see this Tuesday.

According to ACLU attorney Amrit Singh, "These photographs provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib."

She says, "Their disclosure is critical for helping the public understand the scope and scale of prisoner abuse as well as for holding senior officials accountable for authorizing or permitting such abuse."

She is spot on. There is only one purpose in releasing these new photos -- to hold senior officials accountable for the policies that produced the behavior that produced the photos.

So who would these officials be? Well, for openers, such names as Bush, Cheney, Rumsfeld, Tenet and Rice spring to mind. They – not the lawyers who wrote the memos -- were “The Iraq Group” – the engines that powered the policies.

It is a near-certainty that we will never see any of these people in jail or even on trial. But what we have a right to know is who did what to whom and why.

Left to his own inclination and temperament, President Obama is not going to make that happen – unless we force him to make it happen. Unless the public pressure for an independent commission of inquiry becomes strong enough to shape the White House’s perception of political reality.

That should be the next item on our “to do” list.

Yes, we can!

Friday, April 24, 2009

The “Disappeared”

By William Fisher

At least three dozen detainees who were held in the CIA's secret prisons overseas appear to be missing – and efforts by human rights organizations to track their whereabouts have been unsuccessful.

The story of these “ghost prisoners” was comprehensively documented last week by Pro Publica, an online investigative journalism group.

In September 2007, Michael V. Hayden, then director of the CIA, said, "fewer than 100 people had been detained at CIA's facilities." One memo released last week confirmed that the CIA had custody of at least 94 people as of May 2005 and "employed enhanced techniques to varying degrees in the interrogations of 28 of these."

Former President George W. Bush publicly acknowledged the CIA program in September 2006, and transferred 14 prisoners from the secret jails to
Guantanamo. Many other prisoners, who had "little or no additional intelligence value," Bush said, "have been returned to their home countries for prosecution or detention by their governments."

But Bush did not reveal their identities or whereabouts -- information that would have allowed the International Committee for the Red Cross to find them -- or the terms under which the prisoners were handed over to foreign jailers.

The U.S. government has never released information describing the threat any of them posed. Some of the prisoners have since been released by third countries holding them, but it is still unclear what has happened to dozens of others, and no foreign governments have acknowledged holding them.

Gitanjali Gutierrez, an attorney with the Center for Constitutional Rights (CCR), which represents Majid Khan, a former ghost detainee at Guantánamo, told us, “The Obama administration must change course from its ‘forward-looking’ path because it leaves too many critical questions unanswered, including those about the fate of ghost prisoners held by the United States. The United States is strong enough to examine the CIA and other agencies' activities, to punish individuals who violated our laws, and to ensure that our nation does not slip to the dark side again.”

Pro Publica reported that former officials in the Bush administration said that the CIA spent weeks during the summer of 2006 -- shortly before Bush acknowledged the CIA prisons and suspended the program -- transferring prisoners to Pakistani, Egyptian and Jordanian custody.

The organization said the population inside the program had been shrinking since the existence of the prisons was detailed in a Washington Post article in November 2005. Renewed diplomatic relations between the U.S. and Libya in May 2006 made it possible for the CIA to turn over Libyan prisoners to Moammar Gadhafi's control.

Joanne Mariner, director of the Terrorism and Counterterrorism Program at Human Rights Watch, said, “If these men are now rotting in some Egyptian dungeon, the administration can't pretend that it's closed the door on the CIA program."

"Making the Justice Department memos on the CIA's secret prison program public was an important first step, but the Obama administration needs to reveal the fate and whereabouts of every person who was held in CIA custody," she said.

The Red Cross has had access to and documented the experiences of only the 14 so-called “high value detainees” who were publicly moved out of the CIA program and into the prison at Guantanamo Bay.

In June 2007, human rights groups released the names of three dozen people whose fates remained unknown.

"Until the U.S. government clarifies the fate and whereabouts of these
individuals, these people are still disappeared, and disappearance is one of the most grave international human rights violations," said Margaret Satterthwaite, a law professor at New York University. "We clearly don't know the story of everyone who has been through the program. We need to find out where they are and what happened."

In a related development, the American Civil Liberties Union (ACLU) has asked the Obama administration to make public records pertaining to the detention and treatment of prisoners held at the Bagram Airfield in Afghanistan.

The ACLU filed a Freedom of Information Act (FOIA) request for records pertaining to the number of people currently detained at Bagram and their names, citizenship, place of capture and length of detention. The ACLU is also seeking records pertaining to the process afforded those prisoners to challenge their detention and designation as "enemy combatants."

"The U.S. government's detention of hundreds of prisoners at Bagram has been shrouded in complete secrecy. Bagram houses far more prisoners than Guantánamo, in reportedly worse conditions and with an even less meaningful process for challenging their detention, yet very little information about the Bagram facility or the prisoners held there has been made public," said Melissa Goodman, staff attorney with the ACLU National Security Project.

She told us, "Without transparency, we can't be sure that we're doing the right thing – or even holding the right people – at Bagram."

Recent news reports suggest that the U.S. government is detaining more than 600 individuals at Bagram, including not only Afghan citizens captured in Afghanistan but also an unknown number of foreign nationals captured thousands of miles from Afghanistan and brought to Bagram.

Some of these prisoners have been detained for as long as six years without access to counsel, and only recently have been permitted any contact with their families. At least two Bagram prisoners have died while in U.S. custody, and Army investigators concluded that the deaths were homicides.

"When prisoners are in American custody and under American control, no matter the location, our values and commitment to the rule of law are at stake," said Jonathan Hafetz, staff attorney with the ACLU National Security Project. "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."

The ACLU's request is addressed to the Departments of Defense, Justice and State, as well as the Central Intelligence Agency (CIA).

A federal judge recently ruled that three prisoners being held by the U.S. at Bagram can challenge their detention in U.S. courts, in habeas corpus suits brought by a group of human rights legal advocates.

The prisoners, who were captured outside of Afghanistan and are not Afghan citizens, have been held there for more than six years without charge or access to counsel. The Obama administration is appealing the ruling.

The Third Branch: Alive and Well!

By William Fisher

As the debate heats up over what to do about recent disclosures of widespread abuse of war-on-terror prisoners, the “third branch” of the U.S. government – the Judiciary -- continues to assert its independence from the other two branches – the Executive and the Legislative.

In one recent decision, a federal court has refused the Obama Administration’s efforts to delay a hearing for a Guantanamo prisoner. In a second, another federal court has ordered the release of a "substantial number" of photos depicting abuse of prisoners by U.S. personnel in Iraq and Afghanistan.

In the Guantanamo case, a federal judge has denied the Justice Department's motion to dismiss or delay a challenge to the unlawful detention of Mohammed Jawad, a Guantánamo prisoner who has been held in U.S. custody since he was a teenager.

In February, the government filed a motion continuing Bush administration efforts to deny Jawad his right to challenge his detention in federal court until after the Guantánamo military commission case against him is complete, even though President Obama has ordered a halt to all military commission proceedings.

"Today's ruling is vindication of the right to challenge indefinite detention," said Jonathan Hafetz, staff attorney with the American Civil Liberties Union (ACLU) National Security project and counsel in Jawad's habeas case.

Hafetz told us, “Mohammed Jawad's case embodies the complete injustice and failure of Guantanamo. Mr. Jawad has been unlawfully detained for more than six years based on evidence that a military commission judge ruled was the product of torture. Yet, the government persists in imprisoning Mr. Jawad. We intend to vigorously contest that detention in federal court in light of the district judge's recent ruling that his case must proceed promptly.”

He added that the court order “emphasizes the importance of independent judicial review for prisoners who have been held for years with no legal recourse. A prompt habeas hearing is especially necessary because Mr. Jawad's mental and physical well-being continue to be jeopardized by the harsh conditions in which he is being held at Guantánamo. This order upholds Mr. Jawad's right to have his day in court."

The Supreme Court ruled last year that Guantanamo detainees have the right to challenge their imprisonment in U.S. civilian courts. The decision was one of several major rebukes by the High Court to the Bush Administration.

In the order, U.S. District Court Judge Ellen S. Huvelle of the District of Columbia said that earlier cases asserting the right of prisoners to challenge their detention require "prompt adjudication of Guantánamo detainees' habeas cases."

Jawad has been in U.S. custody since he was captured when he was possibly as young as 14, and is one of two Guantánamo prisoners the U.S. is prosecuting for war crimes allegedly committed when they were children.

Jawad's former military commission prosecutor, Lt. Col. Darrel Vandeveld, submitted a 14-page statement in support of the ACLU's habeas corpus challenge stating that the flaws in the commission system make it impossible "to harbor the remotest hope that justice is an achievable goal." Lt. Col. Vandeveld's statement describes torture Jawad suffered in U.S. custody.

In the second court decision, the Defense Department has been ordered to release a "substantial number" of photos depicting abuse of prisoners by U.S. personnel in Iraq and Afghanistan.

The photos' release is in response to a Freedom of Information Act lawsuit filed by the ACLU in 2004 and will include images from prisons in Iraq and Afghanistan at locations other than Abu Ghraib, the ACLU said. The photos will be made available by May 28.

"These photographs provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib," according to Amrit Singh, a staff attorney with the ACLU.

"Their disclosure is critical for helping the public understand the scope and scale of prisoner abuse as well as for holding senior officials accountable for
authorizing or permitting such abuse," she said.

Since the ACLU's FOIA request in 2003, the Bush administration had refused to disclose these images, the ACLU said. The administration claimed that disclosure of such evidence would generate outrage and would violate U.S. obligations toward detainees under the Geneva Conventions, the ACLU said.

But, in September of 2008, a U.S. Appeals Court ruled that disclosure of the photos was required, thus rejecting the Bush administration's position. The court ruled that there was significant public interest in disclosure of the photographs. The Bush administration's appeal to the full appeals court was denied on March 11 of this year.

"The disclosure of these photographs serves as a further reminder that abuse of prisoners in U.S.-administered detention centers was systemic," said Jameel Jaffer, director of the ACLU National Security Project. "Some of the abuse occurred because senior civilian and military officials created a culture of impunity in which abuse was tolerated, and some of the abuse was expressly authorized. It's imperative that senior officials who condoned or authorized abuse now be held accountable for their actions."

Conservative critics are forever seeking ways to attack “activist judges” (read Liberal). But these two decisions are neither conservative nor liberal. They are the result of what judges are supposed to do: follow the law.

It’s refreshing to know that they’re still in business.

Wednesday, April 22, 2009

Interrogations Used to “Sell” Iraq War

By William Fisher

Pentagon interrogators continuously ramped up their abusive techniques against prisoners at Guantanamo Bay and in Iraq and Afghanistan in a vain attempt to establish a link between the former Iraqi dictator Saddam Hussein and the al-Queda attacks on the U.S. on September 11, 2001.

This is among the principal conclusions of a long-awaited report released yesterday by the U.S. Senate Armed Services Committee.

The report also concluded that health professionals played a key role in helping the U.S. Defense Department (DOD) to introduce waterboarding and other illegal interrogation techniques months before these practices were “justified” by Justice Department lawyers and approved by their superiors in the administration of former President George W. Bush.

The report says that the DOD was using harsh interrogation techniques long before they were “justified” by Justice Department lawyers and approved by their Bush Administration superiors.

The report quotes a former senior U.S. intelligence official and a former Army psychiatrist as saying that the Bush administration put “relentless pressure” on interrogators to use harsh methods on detainees in part to find evidence an Al Queda-Saddam link.

This kind of information would have provided a foundation for one of former President George W. Bush's main arguments for invading Iraq in 2003, the report says. No evidence has ever been found of operational ties between Osama bin Laden's terrorist network and Saddam's regime.

The report says that senior Bush Administration officials, including Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, CIA Director George Tenet, National Security Advisor Condoleezza Rice, and Attorney General John Ashcroft, were all aware of the development and use of the abusive interrogation techniques.

Despite warnings from military personnel that the use of these techniques on Guantanamo detainees could backfire, 15 specific techniques were sanctioned by Rumsfeld on December 2, 2002, the report said.

What followed was "an erosion in standards dictating that detainees be treated humanely", it said.

The report said, “That these techniques had been endorsed became known by U.S. troops in Afghanistan and Iraq, setting the stage for the abuses that took place at Abu Ghraib and elsewhere.”

The report also notes that the use of brutal interrogation techniques started in early 2002, up to eight months before Justice Department lawyers approved the use of waterboarding and nine other harsh methods, Senate investigators found.

Michigan Democratic Senator Carl Levin, the committee chairman, said, "The report represents a condemnation of both the Bush administration's interrogation policies and of senior administration officials who attempted to shift the blame for abuse -- such as that seen at Abu Ghraib, Guantanamo Bay and Afghanistan -- to low-ranking soldiers,"

Claims that detainee abuses could be chalked up to the unauthorized acts of a "few bad apples", were simply false, he said. “A few bad apples” is how Rumsfeld described the low-level soldiers shown in photos around the world abusing detainees at Iraq’s Abu Ghraib prison. Several of these military personnel were convicted and sentenced to prison terms, but a series of Pentagon investigations found no evidence that prisoner abuse was a policy that came from the Pentagon’s civilian leadership.

“The paper trail on abuse leads to top civilian leaders, and our report connects the dots.” He said it shows a paper trail going from Rumsfeld’s authorization of abusive interrogation techniques “to Guantánamo to Afghanistan and to Iraq.”

Human rights advocates hailed the Levin report. Caroline Fredrickson, Director of the Washington Legislative Office of the American Civil Liberties Union (ACLU), said, “Once again, we are presented with clear-cut evidence that the Bush administration’s highest ranking officials were not only complicit in the use of torture, but were actively engaged in its implementation. It is now time to act on this evidence.”

The report also documents how a secretive military training program called Survival, Evasion, Resistance and Escape (SERE) became the foundation of the interrogations by both the Pentagon and the CIA.

SERE was developed many years ago as a way to give American military personnel some sense of the treatment they might face if they were captured by China, the Soviet Union or other Cold War adversaries.

The committee’s report notes that the Central Intelligence Agency (CIA) also drew on the SERE program for harsh methods it used in secret overseas jails for Qaeda suspects. The CIA has said it used waterboarding, a method of near-drowning used in the SERE program, on three captured terrorism suspects in 2002 and 2003.

Former Vice President Dick Cheney and others who advocated the use of sleep deprivation, isolation, stress positions, and waterboarding, insist they were legal. Yesterday Cheney asked the Justice Department to declassify and release documents he says will show that these techniques produced valuable intelligence.

Media accounts also report that a secretive government contractor played a key role in developing the Bush administration’s interrogation methods. The company, Mitchell Jessen & Associates, is named after the two military psychologists who founded it, James Mitchell and Bruce Jessen. Beginning in 2002, they trained interrogators in brutal techniques, including waterboarding, sleep deprivation and pain.

The psychologists, based near Spokane in the state of Washington, reportedly “reverse-engineered” the tactics taught in SERE training for use on prisoners held by the U.S.

The declassified torture memos released last week reportedly relied heavily on their advice. In one memo, Justice Department attorney Jay Bybee wrote, “Based on your research into the use of these methods at the SERE school and consultation with others with expertise in the field of psychology and interrogation, you do not anticipate that any prolonged harm would result from the use of the waterboard.”

Physicians for Human Rights (PHR), a not for profit advocacy group, is calling for the psychologists who justified, designed, and implemented torture for the Central Intelligence Agency (CIA) and Department of Defense (DoD), to” lose their professional licenses and to face criminal prosecution.”

“Long before Justice Department lawyers were tasked to justify torture, U.S. psychologists were busy actually perpetrating it,” said Steven Reisner, PhD, Advisor on Psychological Ethics at PHR. “These individuals must not only face prosecution for breaking the law, they must lose their licenses for shaming their profession’s ethics.”

He told IPS, “The conclusion that these interrogation techniques cause no lasting harm is the equivalent of psychological malpractice.” He said the proponents of these techniques “cherry-picked the research to reach a foregone conclusion. How can you compare U.S. soldiers who volunteered for SERE training, and could have stopped their interrogations at any time, with the effects on a prisoner who has been ‘disappeared’, is in fear for his life, and believes he will never see his family again?”

He added that the CIA’s own research into the effects of SERE training showed that it produced “extreme and lasting effects to the point of psychosis.”

In October 2008, the American Psychological Association approved a landmark measure banning members from taking part in interrogations of prisoners held in Guantanamo Bay, Iraq, Afghanistan and all of the secret CIA black sites. The American Medical Association has passed a similar measure.

The Armed Services Committee report was released amid growing calls for an independent inquiry into abusive interrogation techniques and the people responsible for them. Proposals range from a “truth commission” to the appointment of an independent prosecutor by the Obama Justice Department.

President Obama has consistently said he is more inclined to look forward rather than backward. Earlier this week, he visited CIA headquarters in Langley, Virginia, and told agency employees there would be no prosecutions of operatives who carried out the abusive interrogation techniques because they believed they were acting in accordance with legal rulings from the Justice Department.

But a day later, he said he would not oppose either an independent commission investigation or appointment of a special prosecutor. He left these decisions to Congress and to the Attorney General, Eric Holder.

Tuesday, April 21, 2009

Homecoming for Muslim-Americans: Ethnic Profiling

By William Fisher

A Muslim legal advocacy group today painted “a very disturbing picture of a systematic and widespread practice of federal agents targeting Americans – particularly Muslims or those perceived to be Muslim – for deeply intrusive, personal questions and searches about their politics, faith, finances, charitable giving and associations with lawful organizations, all without any evidence or even suspicion of wrongdoing.”

In a new report, Muslim Advocates – a sister not-for-profit of the National Association of Muslim Lawyers (NAML) – charges that law-abiding Muslim, Arab and South Asian Americans returning home after overseas travel are experiencing “widespread, systematic and profound privacy intrusions by federal agents at the nation’s borders and airports.”

The report, entitled “Unreasonable Intrusions: Investigating the Politics, Faith & Finances of Americans Returning Home,” says U.S. Department of Homeland Security (DHS) Customs & Border Protection (CBP) agents have questioned individuals about their political beliefs, religious practices, and charities they support. Agents have also sought to review and copy business cards, credit cards, and data on laptops, digital cameras and cell phones.

“These interrogations and searches are taking place without evidence or even suspicion that the travelers have engaged in wrongdoing,” Muslim Advocates says.

“Far from serving legitimate aims, such profiling undermines security,
wasting scarce government resources and generating mountains of false leads, as well as eroding trust between law enforcement authorities and the public,” the report claims.

Other civil libertarians have also expressed concern about this issue. Typical is Michael Ratner, president of the Center for Constitutional Rights. He told IPS, "The question we need to ask is when will profiling because of race and ethnicity stop? Since 9/11 the harassment of Muslims and Muslim-Americans has been open and notorious."

He added, "Under the FBI guidelines issued in the waning days of the Bush administration, using racial and ethnic criteria as a basis for FBI investigation is permitted. One immediate action Obama must take -- get rid of those guidelines. This administration needs to issue regulations absolutely prohibiting such discrimination and harassment. Enough is enough!"

The Muslim Advocates report contains dozens of case histories of individuals who have been harassed by federal agents when returning home from overseas travel. These experiences have taken place at land crossings and international airports – from San Francisco to New York, Detroit to Houston. The victims are Americans, including the “young, old, male, female, a firefighter, military veterans, students, lawyers, doctors, senior executives with major high tech companies, and academic researchers at Ivy League institutions.”

“This assertion of power not only infringes fundamental constitutional rights and protections but undermines our nation's security,” the report charges.

Muslim Advocates proposes a series of policy revisions to “restore constitutional protections eroded by the status quo border security apparatus and allow ample authority for the government to conduct legitimate activities to protect our nation’s security.” These include suggestions for the executive branch and Congress.

The organization recommends that President Barack Obama should direct the Secretary of Homeland Security to review and reform CBP policies and practices that target Muslim, Arab and South Asian Americans for their First Amendment protected activities, beliefs and associations; and law enforcement and intelligence activities that impose disparate impacts on Muslim, Arab and South Asian American communities.

This agency review and related policies and data should be reported to relevant congressional committees and analyzed by the Inspector General of
the U.S. Department of Homeland Security in reports made publicly available to the extent feasible.

It also recommends that the president support the creation of a new position of Assistant Secretary for Civil Liberties and Civil Rights at DHS. The DHS’s current Officer for Civil Rights & Civil Liberties is a presidentially appointed position without Senate confirmation.

The Secretary of Homeland Security, the report says, should prohibit the use of race, ethnicity, national origin or religion in deciding upon the scope and
substance of investigatory or other law enforcement activity, except when there is trustworthy information, relevant to the locality and timeframe, that links a person of a particular race, ethnicity, national origin, or religion to an identified criminal incident or scheme, and where reasonable suspicion, based on factors unrelated to race, ethnicity, national origin, or religion,
is present.

DHS should also prohibit CBP from using travel patterns as a pretext for profiling according to race, religion, national origin, ethnicity, political beliefs, religious practices, associations with and contributions to lawful charitable organizations in interrogations.

The report’s recommendations to Congress include enacting legislation
to limit arbitrary scrutiny by CBP and ban on the use of race, ethnicity, national origin or religion in deciding upon the scope and substance of investigatory or other law enforcement activity.

At the Department of Justice, (DOJ) the Attorney General should include religion among the bases upon which profiling is prohibited and clarify that race, ethnicity, national origin or religion should not be considered in
deciding upon the scope and substance of investigatory or other law enforcement activity,

In a related development, more Islamic and civil liberties organizations have signed on to a statement by the American Muslim Taskforce on Civil Rights and Elections saying it is considering suspending outreach relations with the Federal Bureau of Investigation (FBI) over recent incidents in which American mosques and Muslim groups have been targeted. The taskforce (AMT) is a coalition of major national Islamic organizations.

The new signatories include the Coordinating Council of Muslim Organizations, which represents more than 50 Washington, D.C.-area mosques, Islamic schools and Muslim organizations.

The FBI recently acknowledged that it had placed an informant inside a mosque to gather information about possible terror-related activities.

"Constructive relations with any law enforcement agency must be based on mutual respect and trust," said CCMO Chair Asma Hanif. "We hope that the FBI addresses these crucial issues so that trust can be restored and relations maintained."

To date, 34 organizations and many community activists and scholars have
endorsed AMT's statement.

Meanwhile, a powerful Republican lawmaker, Rep. Peter King of New York, responded to a Department of Homeland Security report about domestic right-wing extremism by saying that DHS "has never put out a report talking about look out for mosques. Look out for Islamic terrorists in our country. Look out for the fact that very few Muslims come forward to cooperate with the police."

"The fact is, the Muslim community does not cooperate with law enforcement," said King, the ranking Republican on the House of Representatives Homeland Security Committee.

Saturday, April 18, 2009


By William Fisher

Human rights advocates who were critical of President Barack Obama’s decision not to prosecute Central Intelligence Agency operatives who tortured war-on-terror prisoners are hailing a Spanish judge’s order to pursue a criminal investigation into the actions of six Bush administration lawyers for providing legal cover for torture – despite a recommendation from his prosecutors that the case not go forward.

Late last week, Spain's attorney general, Candido Conde-Pumpido, recommended that the judge, Baltasar Garzón, should dismiss the complaint, brought by human rights lawyers. A day later, the judge resisted pressure with a decision to proceed with the case.

The crusading investigative judge is the same official who ordered the arrest of the former Chilean dictator Augusto Pinochet in 1998.

The attorney general encouraged the judge to let sleeping Bush Administration officials lie. According to a report by the British Broadcasting Company (BBC), Conde-Pumpido said that Garzón’s proposed criminal investigation into the actions of former Bush officials for possible violations of international law has “no merit.”

The court is considering criminal action against six former Bush administration officials for reported torture at the U.S. prison at Guantanamo Bay, Cuba, The Americans named in the accusation include former U.S. attorney general Alberto R. Gonzales; former Justice Department lawyer John C. Yoo; former undersecretary of defense Douglas J. Feith; former Vice President Dick Cheney's chief of staff, David Addington; former Justice Department official Jay S. Bybee; and Pentagon lawyer William Haynes.

It alleges the men gave legal cover to torture by claiming that the U.S. president could ignore the Geneva Conventions. The case was brought by human rights lawyers.

Under Spanish law, once the judge receives the prosecutor's recommendation, he can either drop the case or open a full-blown probe that could lead to an indictment. It is the investigative judge, not the prosecutors, who files criminal charges.

Spanish law gives its courts jurisdiction beyond national borders in cases of torture or war crimes, based on a doctrine known as universal justice, though the government has recently said it hopes to limit the scope of the legal process.

One of the Spanish human rights lawyers who brought the case, Gonzalo Boye, told Associated Press that the claim of Spanish jurisdiction was bolstered by the fact that five Guantanamo Bay inmates were either citizens or residents of Spain.

But this case, if it ultimately goes forward, will have implications far beyond Spain, because arrest warrants issued in Spain will be binding on all twenty-seven European Union member states.

Most of the men under investigation have not commented, but Feith has strongly rejected the charges and the claim that Spain has jurisdiction, saying the case was "a national insult with harmful implications."

Spain's government, which has been trying to improve its relationships with Washington, has insisted their courts are independent and that the executive branch has no sway over its decisions.

Spain, like many other countries in Europe, has a special interest in these
cases since five of its citizens and residents were tortured or abused at

Human rights advocates have been unanimously supportive of Spain’s efforts to move the case forward.

The Center for Constitutional Rights (CCR), which represents many of the men detained by the U.S. government at Guantánamo, praised Spanish judge Garzon’s decision to pursue a criminal investigation into the actions of six Bush administration lawyers.

Michael Ratner, CCR’s president, said, “The importance of this investigation can not be understated. Contrary to statements by some, the Spanish investigations are not ‘symbolic.’ He noted that if and when arrest warrants are issued, all countries in the European Union will be obligated to enforce them. The world is getting smaller for the torture conspirators.”

CCR, along with the European Center for Constitutional and Human Rights
(ECCHR) and the International Federation of Human Rights (FIDH), has tried three times, twice in Germany and once in France, to bring criminal cases in Europe against former Bush officials. The German case is still pending.

Marjorie Cohn, President of the National Lawyers Guild, told us, “The only reason Spain is considering the prosecution of Americans for torture is because the United States is refusing to do so. Eric Holder must follow U.S. law and initiate criminal investigations of Bush officials who committed torture and other war crimes. Political considerations should not control our obligation under the Torture Convention to prosecute or extradite war criminals."

A similar view was expressed by Ben Wizner, attorney in the National Security Project of the American Civil Liberties Union (ACLU). He told us, “The idea of Spain investigating America’s treatment of detainees is an embarrassment to us. Once we were the world’s leading champions, not only of human rights, but of accountability. We shouldn’t be depending on other countries to clean up our mess.”

“If the Obama Administration did what the law required – appoint a special prosecutor – we would see fewer of our allies feeling they have to do our work,” he added.

Amnesty International called on the U.S. administration to initiate criminal investigations and prosecutions of those responsible for carrying out acts of torture, including waterboarding, in its "war on terror".

"President Obama's statements in the last days have been very disappointing. In saying that no one will be held to account for committing acts of torture, the U.S. administration is in effect condoning torture," said Daniel Gorevan, of Amnesty International's Counter Terror with Justice campaign.

"It's saying that U.S. personnel can commit acts of torture and the authorities will not take any action against them,” he said.

The UK-based legal charity, Reprieve, which represents a recently freed Guantanamo Bay prisoner, Binyam Mohamed, said it welcomed last week’s release of documents detailing how CIA lawyers sanctioned the systematic use of torture and calls for a serious response to the crimes committed.

“These memos expose the facilitating role played by lawyers, doctors and psychologists in the CIA torture program,” said Reprieve investigator Clara Gutteridge.

“The Bush Administration has professionalized torture and it will take more than the release of a few memos to put this right,” she added.

“Grave crimes have been committed in the ‘War on Terror’ and we must above all ensure that they never happen again. For this, nothing less than complete transparency is required,” she said.

Mohamed, a British resident now back in the U.K., claims he was rendered to CIA “black sites” – secret prisons now banned by President Obama – before being flown to Guantanamo Bay for years of incarceration. The U.S. authorities dropped all charges against him, but before they did so they pressured him to plead guilty to an unspecified crime and to promise never to talk to the media and never to sue the U.S. He refused.

He is currently attempting to bring lawsuits in the U.K., with the help of Reprieve, and in the U.S., with the help of the American Civil Liberties Union (ACLU). In the U.S. case, the government has moved to have the case dismissed under the “state secrets” privilege, saying that disclosure of any of the evidence in court would compromise national security.


By William Fisher

Lawyers who reject President Barack Obama’s decision not to seek prosecution of officials who may have participated in the torture of terror-suspect prisoners are seeking justice through another avenue: Sanctions against government lawyers who created the “enhanced interrogation” policies of former President George W. Bush.

Their first target is former Defense Department General Counsel William J. Haynes II. The San Francisco Bay Area chapter of the National Lawyers Guild (NLG) has filed a complaint against Haynes, asking the State Bar of California to investigate him and revoke his status as Registered In-House Counsel. Haynes is now an attorney with Chevron Corp. in San Ramon, California.

The Los Angeles Times reports that a similar complaint is being prepared in Pennsylvania against former Justice Department lawyer John C. Yoo, the University of California Berkeley law professor, for his role in drafting the legal guidelines that approved enhanced interrogation techniques including waterboarding during his service in the DOJ’s Office of Legal Counsel (OLC) during the Bush Administration.

Marjorie Cohn, President of the NLG, told us, “The lawyers who provided the high Bush officials with 'legal' cover were participants in formulating the policy of torture and cruel treatment. They should be the targets of criminal investigations and should also be disbarred for their ethical violations.”

She also noted that the complaint filed with the Pennsylvania state bar against John Yoo “has been put on hold pending the release of the report of the DOJ’s Office of Professional Responsibility, which is apparently highly critical of Yoo, Jay Bybee and Stephen Bradbury, authors of the torture memos."

Haynes served as the DOD General Counsel from May 24, 2001 until his abrupt resignation on February 25, 2008. He resigned days after an article accusing him of rigging trials of enemy prisoners at Guantánamo Bay appeared in “The Nation” magazine. Haynes was the DOD’s chief legal officer and legal adviser to then-Secretary of Defense Donald Rumsfeld.

Several memoranda to and from Haynes were released as part of the Obama Justice Department disclosures of March 2009.

Haynes was also one of the six Bush-era officials named in the ongoing investigation of torture and other unlawful acts currently being considered by the Spanish judiciary.

The NLG complaint charges that, while General Counsel at the DOD, Haynes breached his duty as a lawyer and advocated for harsh tactics amounting to torture in violation of U.S. and international law. His “improper advocacy directly lead to detainee abuses at the Guantanamo Bay and Abu Ghraib facilities,” the NLG complaint charges.

It says Haynes "breached his duty as a lawyer" in providing legal cover for U.S. soldiers and federal agents to use dogs, nudity, stress positions and other humiliating tactics to break down terror suspects.

The complaint says Haynes “is directly linked to the torture of at least one detainee,” Mohamed Mani Ahmad al-Kahtani, an alleged member of al-Qaeda, who allegedly intended to come to the U.S. to take part in the terrorist attacks of September 11, 2001 as a “muscle hijacker” but was refused entry due to suspicions that he was attempting to immigrate. Since January 2002, al-Kahtani has been detained at the U.S. prison at Guantanamo Bay, Cuba.

According to Susan J. Crawford, convening authority for military commissions at Guantanamo, Al-Kahtani’s treatment during this time was torture. She stated, “We tortured Kathani. His treatment met the legal definition of torture.” Because of his torture, Crawford dismissed the charges against him.

The NLG charges that Haynes is also directly linked to the prosecution of low-level service members for using techniques he approved.

Haynes’s conduct “demonstrates moral turpitude,” the NLG charged. The group alleges that he failed to show “respect for and obedience to the law, and respect for the rights of others” as required by the rules of the California bar.

He “intentionally or recklessly” failed to act competently, failed to adequately supervise the work of subordinate attorneys, and forwarded “shoddy legal memoranda regarding the definition of torture” to Rumsfeld.

“Haynes further acted incompetently by advising Secretary Rumsfeld to approve interrogation techniques that were in violation of U.S. and international law, and without even mentioning strong objections by the military,” the complaint says.

Under a legal memorandum written by Haynes and approved by Rumsfeld, one detainee was “bothered by the presence and touch of a female,” “females viewing his naked body,” and being refused the right to pray.

Haynes “recommended approval of aggressive interrogation techniques that the military stated may violate the law. He forced subordinate attorneys to rely on memoranda prepared by the Office of Legal Counsel that have since been rescinded in an unprecedented manner. His advice was so contrary to the law that Secretary Rumsfeld was forced to rescind the approval based on the Haynes Memo,” the NLG complaint says.

It continues, “There is absolutely no evidence that Mr. Haynes attempted to present an impartial, unbiased review of the law. All of the evidence shows that Mr. Haynes improperly advised the allowance of illegal and inhumane interrogation techniques.”

Haynes “failed to support or uphold the U.S. Constitution, and the laws of the United States, or to maintain the respect due to the courts of justice and judicial officers. His actions involved moral turpitude, dishonesty and corruption.”

He “abused and disrespected the law for political purposes. This is wrong.”

Haynes was nominated to the Fourth Circuit Court of Appeals by President George W. Bush on September 29, 2003. He was approved by a straight party-line vote of the Senate Judiciary Committee on November 19, 2003, but his involvement with the creation of a memorandum entuitled “Legal Arguments for Avoiding the Jurisdiction of the Geneva Conventions” triggered a filibuster that prevented his nomination from receiving a full Senate vote.

The “bar association strategy” has been effective a number of times in the recent past. In 2001, former President Bill Clinton resigned from the Supreme Court bar rather than face near-certain disbarment for perjury related to Lewinsky scandal. And the Arkansas bar moved to disbar Clinton, but offered a deal that saw him suspended for five years for making false statements in the Jennifer Flowers proceeding.

Former Vice President Spiro Agnew, having pleaded no contest -- which subjects a person to the same penalties as a guilty plea -- to charges of bribery and tax evasion, was disbarred from practicing law in Maryland, the state of which he had previously been governor.

And former President Richard Nixon was disbarred from practicing law in New York in 1976 for obstruction of justice related to the Watergate scandal.

The NLG complaint also draws on decisions reached in the Nuremberg trials of Nazi war criminals following World War Two. The complaint notes that one lawyer was found guilty of war crimes and crimes against humanity because he “materially contributed toward the prostitution of the Ministry of Justice and the courts and their subordination to the arbitrary will of Hitler, the Party minions, and the police. He participated in the corruption and perversion of the judicial system.”

The NLG says, “As shown in the Nuremberg trials, powerful leaders can and do engage in illegal acts and inhumane treatment of others. These leaders rely on lawyers and the legal system to give the appearance of legitimacy to an illegal agenda. Sadly, there always seem to be lawyers willing to do the bidding of powerful rulers.”

Friday, April 17, 2009


By William Fisher

Lawyers for a Guantanamo detainee who claims he was held and tortured in one of the “black site” secret prisons run by the U.S. Central Intelligence Agency is demanding that the CIA preserve cells and interrogation paraphernalia there as evidence of mistreatment.

In a letter to CIA Director Leon Panetta, military and civilian counsel to Abd Al-Rahim Hussain Mohammed al-Nashiri sent a letter to CIA Director Leon Panetta requesting that the CIA “black site” buildings, interrogation cells, prisoner cells, shackles, waterboards and other equipment be preserved for inspection and documentation.

Disclosure of the letter came on the heels of yesterday’s release of four more top-secret “legal memoranda” prepared by the Justice Department’s Office of Legal Counsel during the administration of former President George W. Bush. The memos approved “enhanced” interrogation techniques they claimed were not torture – a claim rejected by both the Obama Administration officials and human rights advocates. Nine other OLC memos were previously released by the Obama Administration.

OLC is the DOJ office that provides authoritative legal advice to the President and all Executive Branch agencies. It drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Executive Branch.

Al-Nashiri, who is now detained at Guantánamo, was held in the secret CIA prison facilities from 2002 to 2006. While President Barack Obama has ordered the closure of CIA black sites, al-Nashiri’s attorneys are concerned that the CIA intends to destroy the sites, including the buildings and the equipment used to interrogate and torture al-Nashiri and other detainees. They say that would amount to destroying evidence of his mistreatment.

Panetta told CIA personnel on April 9, 2009, that the CIA would be “decommissioning” the CIA secret facilities. The letter asks Panetta to “preserve all the secret sites.”

The CIA has admitted that al-Nashiri was subjected to waterboarding while in CIA custody. Videotapes depicting his abusive interrogations have already been destroyed by the agency and are the subject of ongoing litigation by the American Civil Liberties Union (ACLU).

Through its John Adams Project with the National Association of Criminal Defense Lawyers, the ACLU worked with under-resourced military lawyers to provide legal counsel for several of the Guantánamo detainees including al-Nashiri during the military commissions process.

The lawyers’ letter put Panetta “on notice that we will be seeking discovery and inspection of this highly relevant evidence in whatever court Mr. Al-Nashiri finds himself.”

The lawyers added, “We have already lost the video tapes which would have allowed a jury to see what happened to Mr. Al-Nashiri in those secret prisons. We cannot lose the remaining tangible evidence of the actual prisons themselves and the instruments of torture within them.”

They note that Panetta’s predecessor, General Michael V. Hayden, has admitted that Mr. Al-Nashiri was subjected to waterboarding, “which is a form of torture, while in the custody of the CIA.”

According to the recently released report from the International Committee of the Red Cross (ICRC), ‘waterboarding was only one of the many forms of torture inflicted on Mr. Al-Nashiri while in the custody of the CIA,” the lawyers’ letter said.

They claim that, according to the ICRC report, “While in CIA custody, Mr. Al-Nashiri was also forced to stand with his wrists shackled to a bar in the ceiling for prolonged periods of time -- extending to several days— and was threatened with sodomy and with the rape and arrest of his family members.”

Throughout that time, the letter says, Al-Nashiri “was not able to communicate with his family, a lawyer or anyone. Effectively the CIA “disappeared” him for four years while it tortured him at will and beyond the eyes of the world.”

The CIA and other government agencies also admitted to the purposeful destruction of at least ninety-two video tapes of interrogations and observations of prisoners in its black sites, specifically including the destruction of video tapes of water boarding and other observations of Mr. Al-Nashiri, the letter says.

It concludes, “Had Mr. Al-Nashiri known that the CIA possessed these video tapes and intended to destroy them, he would have demanded their preservation. However, neither he, his lawyers nor the courts learned of the CIA’s plan until after the tapes had been destroyed and now they are forever gone.”

“Although we welcome your decision to cease the secret detention and mistreatment of prisoners of the United States Government, we are concerned that the CIA intends to actually destroy the sites -- including the buildings and the equipment used to interrogate and torture Mr. Al-Nashiri—before Mr. Al-Nashiri has had the opportunity to fully investigate his conditions of confinement. We write to avoid the destruction of more evidence—namely the actual secret facilities themselves.” The lawyers wrote.

Al-Nashiri was charged in the Military Commission with offenses that carried the death penalty. His lawyers note that, “Although those charges have now been dismissed, we fully expect the government to prosecute Mr. Al-Nashiri and again charge him with offenses that could carry the death penalty. In fact the government is now actively working to determine in what forum he will be prosecuted.”

Evidence held by the CIA “is exculpatory evidence” and Al-Nashiri “will be entitled to it.”

The letter concludes: “The CIA’s secret prison facilities and the inquisition-like treatment meted out to its prisoners were a tragic, immoral and illegal period in our history that we all hope has come to an end. But its effects are enduring, especially on someone like Mr. Al-Nashiri who, according to the ICRC report, lived through the horror chambers of at least three different secret prisons.”

Following yesterday’s release of the four OLC memos, it is likely that the government’s treatment of detainees will attract increased public scrutiny – despite President Obama’s pledge to close Guantanamo Bay and CIA black site prisons.

Continuing concern about U.S. credibility in war-on-terror detentions and prosecutions has been voiced by many American legal scholars. As David Cole, one of America’s preeminent constitutional authorities, told us, “For better or worse, the U.S. is a world leader on matters of human rights. When the U.S. violates human rights in the fight against terrorism, it sends a message to autocrats and dictators worldwide that they, too, can deny human rights in the name of counterterrorism.”


By William Fisher

Human rights advocates were quick to praise President Barack Obama for yesterday’s release of the infamous “torture memos” used by the Bush-era Justice Department to justify cruel, inhuman and degrading treatment of war-on-terror prisoners – but widely split on the president’s decision not to prosecute the Central Intelligence Agency operatives who used these techniques.

Amnesty International’s Tim Hancock said, 'With this statement, the U.S. Department of Justice appears to have offered a 'get-out-of-jail-free card' to people involved in torture. Torture is never acceptable and those who conduct it should not escape justice.”

He added, “Torture is banned under international and U.S. domestic laws, but those laws are only meaningful if they are enforced. 'It's welcome that the remaining memos have been published. There will only be accountability where there is transparency, and President Obama rightly wants to draw a line under the human rights abuses of the 'War on Terror'. 'But this is the wrong way to go about it. Brushing torture and rendition under the carpet will not provide closure -- the facts should be brought out into the open through an independent commission of inquiry. Those who have broken the law -- no matter what rank they hold -- should be prosecuted under the law.'

The American Civil Liberties Union (ACLU) – which brought the Freedom of Information Act lawsuit that triggered release of the memoranda – was more hopeful.

The ACLU’s Alex Abdo, an attorney in the group’s National Security Program, told us, "We're nowhere near the end of this road. President Obama has said he will not prosecute CIA operatives who administered torture because they acted in good faith based on what they were told were legal opinions from the Office of Legal Counsel, approved by President Bush.”

But, he noted, “Obama has left the door open to prosecuting those who crafted and approved these memos. And he has said no one is above the law. We remain hopeful that he will appoint a special prosecutor."

"There is still a lot of work to do,” he added. “For example, the CIA must release the report of its Inspector General into interrogation and detention."

Physicians for Human Rights said, “The tactics used by psychologists and supervised by medical personnel, including physicians, clearly constituted torture and a grave breach of medical ethics. The health professionals involved in the CIA program broke the law and shame the bedrock ethical traditions of medicine and psychology. All psychologists and physicians found to be involved in the torture of detainees must lose their license and never be allowed to practice again.”

The group said, “Strained legal rationalizations for torture techniques should provide no cover for health professionals who helped design and implement them. The White House and Congress must work together to ensure public accountability for these crimes and violations of medical ethics.”

A similar sentiment was voiced by Michael Ratner, president of the Center on Constitutional Rights, which has mobilized a small army of volunteer lawyers to provide defense counsel for Guantanamo Bay detainees. While acknowledging that “It is good that President Obama ordered the release of four more of the torture memos,” Ratner was unrelenting in his condemnation of Obama’s decision not to prosecute those responsible.

He said, “President Obama goes out of his way to praise those who engaged in these unlawful practices and assures them they will not be prosecuted. In making this decision he is acting as jury, judge and prosecutor. It is not his decision to make. Whether or not to prosecute lawbreakers is not a political decision. Laws were broken and crimes were committed. If we are truly a nation of laws as he is fond of saying, a prosecutor needs to be appointed and the decisions regarding the guilt of those involved in the torture program should be decided in a court of law.”

Many constitutional law scholars were also critical of President Obama’s decision not to prosecute CIA operatives. David Cole, a professor at Georgetown University Law Center, said, “The four legal memos released by the Obama administration on Thursday confirm in excruciating detail that the Bush administration employed twisted and macabre legal reasoning to authorize the unspeakable – the torture and cruel, inhuman and degrading treatment of human beings. The memos’ matter-of-fact clinical descriptions belie the harsh tactics to which they gave a green light. They set the C.I.A. loose to slam suspects’ heads into walls up to 30 times in a row, to deprive suspects of sleep for more than a week straight, to confine them to small dark boxes for hours at a time, to slap them repeatedly in the face and abdomen, and to suffocate them with water to induce the perception that they are drowning.”

But, he added, “Mr. Obama’s refusal to hold accountable those responsible for the wrongs so evident from the memos is unacceptable. A child would recognize these tactics as cruel and inhumane.”

High-ranking former members of the U.S. military also weighed in. Speaking on behalf of the legal advocacy organization Human Rights First, three retired admirals and generals said, “We believe the Obama Administration made the right decision in releasing the Office of Legal Counsel memos on interrogation. Airing the facts about past mistakes is essential to ensuring that the right policies are in place to prevent future abuses while making our country stronger.”

The memos, written in flat, emotionless legal language, were produced by the Justice Department's Office of Legal Counsel (OLC). They provided the legal framework for the CIA's use of waterboarding and other “enhanced interrogation” techniques used during the administration of former President George W. Bush.

The four memos were turned over to a federal judge yesterday, according to a deadline set by the court. Three of the memos were written by Steven Bradbury, then a lawyer in the Justice Department’s Office of Legal Counsel (OLC), in 2005. The fourth memo was written by then-OLC head Jay S. Bybee in August 2002. He is now a federal judge, appointed by former President George W. Bush.

OLC is the DOJ office that provides authoritative legal advice to the President and all Executive Branch agencies. It drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Executive Branch.

In addition to waterboarding, the 2002 Bybee memo authorized slapping, pushing, confinement in a small, dark space, painful stress positions, and sleep deprivation for up to 11 days. It also approved a request to lock one of the ‘high-value’ prisoners, Abu Zubaydah, in a confinement box with an insect.

The memo says: "You have informed us that he appears to have a fear of insects. In particular, you would like to tell Abu Zubaydah that you intend to place a stinging insect into the box with him."

The Bybee memo authorized 10 special interrogation techniques for use against Zubaydah, including waterboarding. Under this interrogation technique, the suspect is placed on a board or table with his feet above his head, a cloth is draped over the nose and mouth, and water is poured over his face. The technique, widely considered a form of torture by human-rights experts, triggers an intense, uncontrollable sensation of drowning.

In the memo, Bybee acknowledged that waterboarding came close to violating the U.S. torture statute because it constitutes "a threat of imminent death." But he added that it would not amount to torture unless the experience resulted in "prolonged mental harm" lasting months or years.

Informed observers say the controversy over interrogations is far from over -- there are a number of additional shoes left to drop. For example, the Obama Administration must decide whether to release the tightly held reports by the CIA inspector general on torture and rendition. Disclosure of the reports will add fuel to the debate over whether Bush administration officials should be investigated for their role in the implementing the torture regime.

And, later today, the DOJ will turn over to a federal judge a number of never-before-seen images of prisoner mistreatment at Iraq’s notorious Abu Ghraib prison – or tell the judge why it refuses to do so. Release of the images – sought in another Freedom of Information Act lawsuit brought by the ACLU -- is likely to add considerable fuel to the interrogation controversy.

Thursday, April 16, 2009

DOJ Releases Torture Memos; Will Not Prosecute Torturers

By William Fisher

The Justice Department today released four secret memos used by the Bush administration to justify torture.

The memos, produced by the Justice Department's Office of Legal Counsel (OLC), provided the legal framework for the CIA's use of waterboarding and other illegal interrogation methods that violate domestic and international law.

The disclosures were made before Judge Alvin Hellerstein, an appointee of former President Bill Clinton, in U.S. District Court in New York in a postponed response to a Freedom of Information Act lawsuit brought by the American Civil Liberties Union (ACLU).

According to a deadline set by the court, the government was ordered to turn over by today memos authored by Jay Bybee and Steven Bradbury, then top lawyers in the DOJ Office of Legal Counsel (OLC), that supplied the framework for the Bush administration interrogation program – or else explain why they continue to withhold them from the public. To the surprise of many observers, the DOJ chose to comply with the judge’s order.

OLC is the DOJ office that provides authoritative legal advice to the President and all Executive Branch agencies. It drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Executive Branch.

The ACLU has called for the Justice Department to appoint an independent prosecutor to investigate torture under the Bush administration.

Three of the memos released today were written by Steven Bradbury, then a lawyer in the OLC, in 2005. The fourth memo was written by then-OLC head Jay S. Bybee in August 2002. He is now a federal judge, appointed by former President George W. Bush.

"Memos written by the Office of Legal Counsel, including the memos released today, provided the foundation for the Bush administration's torture program," said Jameel Jaffer, Director of the ACLU National Security Project.”

Jaffer said, "Through these memos, Justice Department lawyers authorized interrogators to use the most barbaric interrogation methods, including methods that the U.S. once prosecuted as war crimes. The memos are based on legal reasoning that is spurious on its face, and in the end these aren't legal memos at all – they are simply political documents that were meant to provide window dressing for war crimes. While the memos should never have been written, we welcome their release today. Transparency is a first step towards accountability."

Since 2003, the ACLU has filed several lawsuits to enforce FOIA requests seeking government documents relating to torture, rendition, detention and surveillance. These lawsuits have resulted in the release of thousands of records.

President Obama said today that the government would guarantee immunity to CIA officials who were involved in illegal “enhanced interrogation techniques.” That echoes a statement made by CIA Director Leon Panetta during his confirmation hearing in the U.S. Senate.

The Center for Constitutional Rights (CCR) – one of the advocacy groups whose lawyers have been among the most active in mobilizing defense attorneys for Guantanamo Bay detainees – was quick to respond.

The group said, “It is one of the deepest disappointments of this administration that it appears unwilling to uphold the law where crimes have been committed by former officials.”

“Whether or not CIA operatives who conducted waterboarding are guaranteed immunity, it is the high level officials who conceived, justified and ordered the torture program who bear the most responsibility for breaking domestic and international law, and it is they who must be prosecuted,” CCR said in a statement.

“In the president’s statement today, the most troubling contradiction is the contrast of the words, ‘This is a time for reflection, not retribution,’ followed shortly by, ‘The United States is a nation of laws.’ Government officials broke very serious laws: for there to be no consequences not only calls our system of justice into question, it leaves the gate open for this to happen again.”

The decision to release the long-secret memos posed a major test for President Barack Obama, who promised during his first week in office said he would establish a new transparency in government. To make good on that pledge, the administration previously released nine secret Justice Department memos dealing with counterterrorism and interrogation policy.

The decision was seen by some as the result of an Obama balancing act: living up to his promise of transparency while protecting CIA personnel, cooperative relationships with the intelligence services of other countries, and the national security interests of the U.S.

The administration’s decision may have marked a new phase of what has been described as a pitched battle between the Department of Justice and the Central Intelligence Agency.

It has been reported that Attorney General Eric Holder, head of the DOJ, was in favor of full disclosure, but that senior career CIA officials under the agency’s new director, Leon Panetta, argued that disclosure would compromise national security and damage morale at the spy agency.

At the same time, Panetta said that CIA operatives who performed waterboarding and other illegal interrogation techniques would not be prosecuted because they believed they were acting under the legal authority of the President of the United States, based on memoranda prepared by the DOJ’s Office of Legal Counsel.

The inter-agency controversy reportedly began in the waning days of the administration of President George W. Bush, when then-CIA Director Michael Hayden reportedly became incensed over the possible disclosure of the memos.

Some observers have speculated that some of these senior CIA officials were themselves deeply involved in the management of the interrogation programs and that they are trying to shield themselves from possible prosecution.

CIA Deputy Director Steven Kappes is one of the officials often mentioned as needing protection.

Hayden brought Kappes back to the number two position at the CIA in 2006, two years after the legendary clandestine operative resigned following a confrontation with Patrick Murray, chief of staff to then-Director Porter J. Goss. Kappes’s top deputy, Michael Sulick, also resigned, as did others who were unhappy with the new Goss team.

These resignations reportedly triggered an exodus of seasoned case officers.
Kappes's top priority when he rejoined the agency was to help rebuild the CIA’s human intelligence capabilities.

When President Barack Obama appointed Panetta to head the CIA, Kappes remained as the agency’s second in command. Press reports have asserted that Kappes was personally involved in the CIA’s harsh interrogation programs, and also that he fears that disclosure of the secret memoranda will fuel another exodus of experienced CIA operatives.

The CIA still faces at least one other difficult decision – whether to release the tightly held reports by the CIA inspector general on torture and rendition. Disclosure of the reports will add fuel to the debate over whether Bush administration officials should be investigated for their role in the implementing the torture regime.