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.

Abu Ghraib Victims Can Sue Interrogators

By William Fisher

In a ruling that could have widespread implications for government contractors overseas, a federal court has concluded that four former Abu Ghraib detainees, who were tortured and later released without charge, can sue the U.S. military contractor who was involved in conducting prisoner interrogations for the Pentagon in Iraq.

U.S. District Judge Gerald Bruce Lee, appointed by President Bill Clinton in 1998, denied a motion to dismiss the detainees’ claims by the contractor, CACI International. The Arlington, Virginia-based company is a major contractor to the Defense Department.

The former detainees allege multiple violations of U.S. law, including torture, war crimes and civil conspiracy.

The suit alleges that the CACI defendants not only participated in physical and mental abuse of the detainees, but also destroyed documents, videos and photographs; prevented the reporting of the torture and abuse to the International Committee of the Red Cross; hid detainees and other prisoners from the International Committee of the Red Cross; and misled non-conspiring military and government officials about the state of affairs at the Iraq prisons.

CACI sought immunity against the lawsuits and claimed that the actions of its contract interrogators at Abu Ghraib were beyond judicial review. Court martial and other testimony from the soldiers convicted of abuse has linked company personnel to the abuse.

The Court rejected CACI’s effort to shield itself from accountability by
invoking the “political question doctrine.”

The Court reasoned, “While it is true that the events at Abu Ghraib pose an embarrassment to this country, it is the misconduct alleged and not the litigation surrounding that misconduct that creates the embarrassment. This Court finds that the only potential for embarrassment would be if the Court declined to hear these claims on political questions grounds.”

The Court found “The policy is clear: what happened at Abu Ghraib was wrong.”

The Court also ruled, “The fact that CACI's business involves conducting interrogations on the government's behalf is incidental; courts can and do entertain civil suits against government contractors for the manner in which they carry out government business. CACI conveniently ignores the long line of cases where private plaintiffs were allowed to bring tort actions for wartime injuries.”

The former detainees began their lawsuit in 2004. CACI is appealing the court’s verdict.

Attorney Katherine Gallagher of the Center for Constitutional Rights (CCR), one of the Iraqis’ lawyers, told us, “The Court’s decision that the case against CACI can proceed is a big step forward in the fight against impunity and the victims’ quest for justice. We remain hopeful that the victims will soon have their day in court.”

CACI International Inc. criticized the court ruling. “From day one, CACI has rejected the outrageous allegations against the company in this lawsuit and continues to do so,” the company said in a statement.

“After five years and numerous investigations, no CACI employee or former employee has been charged with any misconduct in connection with CACI’s interrogation work in Iraq,” the company said.

Suspicion of CACI’s role in abusive interrogations dates back to 2004, when Amnesty International (AI) began a dialogue with the company and with other government contractors who were involved in questioning detainees at Abu Ghraib and elsewhere.

In the first of a number of letters from Amnesty’s Executive Director Dr. William F. Schulz , AI expressed its “ concern over the human rights abuses committed in the Abu Ghraib prison facility” and asked for “clarification of your company’s human rights policies and practices. “

The letter continued, “Your company has performed services contracts with the U.S. military that have led to public allegations of complicity in abuses against detainees by some of your employees. We hope and expect that CACI will support and facilitate public investigations and help bring persons found responsible to justice.”

In response, Dr. J.P London, CACI Chairman of the Board, President and Chief Executive Officer wrote, “We join you in condemning the obvious abuses apparently committed at Abu Ghraib, and we look forward to seeing all wrongdoers brought to justice. If that group happens to include one or more of our employees, those wrongdoers should be subject to appropriate punishment along with all others involved.”

London said, “We support and are cooperating fully with all U.S. government investigations into this matter of which we are aware or have been contacted.”

“We do not condone, tolerate or in any way endorse illegal behavior on the part of our employees or those with whom we work while conducting business in any circumstances at any time,” London responded.

When CACI’s name first became linked with abuses at Abu Ghraib, the company mounted a massive public relations campaign, including the publication of a book by Dr. London, “Our Good Name.” In speeches at the time, Dr. London accused the media of abandoning the principle of “innocent until proven guilty.”

CACI International ranks No. 17 on Washington Technology’s 2008 Top 100 list of the largest federal government prime contractors.