Tuesday, May 19, 2009

Pelosi’s Loss; Our Gain

By William Fisher

Congressional Democrats and many Washington journalists are predicting that House Speaker Nancy Pelosi’s current dispute with the Central Intelligence Agency may ultimately hasten the push toward the last thing Republicans want -- a comprehensive investigation of prisoner detention and interrogation during the administration of former President George W. Bush.

The Pelosi controversy centers on whether the House’s top Democrat was briefed in 2002 by the Central Intelligence Agency (CIA) that waterboarding and other abusive interrogation techniques were being used when she was chair of the House Intelligence Committee.

Pelosi says the CIA told her waterboarding was not being used; she has accused the agency of misleading Congress. The CIA claims it informed her, as well as a small number of other Congressional leaders.

While President Barack Obama appears to be ambivalent about a comprehensive look-back, many of Pelosi’s House colleagues – and much of the media -- are ramping up their calls for an independent 9/11-type commission to investigate not only what Pelosi knew and when she knew it, but what happened to detainees during the Bush years.

If there is a full-blown investigation of Bush-era policies, it is sure to drill down into the CIA’s activities following the terrorist attacks of September 11, 2001, and in the year-long run-up to the 2003 U.S. invasion of Iraq.

There is little dispute that the CIA played a major role in the interrogation of terror suspects during that period. Public disclosure of what the CIA did – and testimony about who authorized, approved, and implemented it -- is likely to be a major embarrassment for Republicans who controlled the White House and both chambers of Congress at the time.

A recent Senate hearing on torture provides a measure of just how embarrassing such revelations could be.

That hearing revealed two claims that went largely unreported in mainstream media accounts.

The first claim was intended to debunk the widely-held view that the Central Intelligence Agency (CIA) and the Federal Bureau of Investigation (FBI) were at odds about the effectiveness of harsh interrogation practices. Testimony at the hearing suggested that the two agencies were in agreement.

The second claim was that CIA operatives were responsible for the application of abusive interrogation practices. But testimony asserted that these interrogations were carried out by private contractors, and that CIA personnel present at the time agreed with the FBI that the so-called “enhanced techniques” were unnecessary and counterproductive.

Both these claims came from a former FBI special agent, Ali Soufan, an interrogator who helped question Abu Zubaydah — the first high-value detainee in American custody. Soufan spoke to the Senate committee from behind a partition that concealed his identity to protect his personal security.

Soufan testified that he had built a relationship with Abu Zubaydah using traditional FBI interrogation technques and was getting valuable information.

He said both agencies wanted to continue this approach, but were overruled by “headquarters.” But the identity and location of the “headquarters” and the identity of the CIA contractors remains shrouded in mystery.

Soufan told the Senate hearing that after the FBI was asked to leave, CIA contractors waterboarded Zubaydah 183 times in a single month.

He testified that the people on the ground who pushed hardest for abusive interrogations were CIA contractors. "The interrogation team was a combination between FBI and CIA, and all of us had the same opinion that contradicted with the contractor. The contractors had to keep requesting authorization to use harsher and harsher methods," he said.

In his written testimony, Soufan said contractors used nudity, sleep deprivation, loud noise and temperature manipulation against Zubaydah. The timeline indicates that this was done before the Justice Department had provided written legal authority to use these techniques.

He also testified that the CIA contractors had no interrogation experience.

In the recently released Justice Department memos defining torture, there is no mention of CIA contractors, and that may help explain why there have been no lawsuits against them. Another is the secrecy that has traditionally enveloped all CIA activities, including its interrogation program.

President Barack Obama and Attorney General Eric Holder have granted immunity to CIA operatives who believed they were acting under legal opinions approved by the Justice Department. But the Obama Administration has said nothing about contractors.

CIA Director Leon Panetta has now barred contractors from carrying out interrogations. But even if the identities of the CIA contract interrogators were known, suing them might present formidable legal challenges. For example, the Military Commissions Act passed by Congress in 2006 includes a provision that immunizes contractors from lawsuits.

While some in the human rights community believe that provision to be unconstitutional, it has not yet been tested in any U.S. court. However, there are a number of civil lawsuits ongoing or pending against military contractors, including Blackwater and CACI.

What is known is that CIA contract interrogators attended the school used by the Army to conduct a program known as SERE, an acronym for Survival, Evasion, Resistance and Escape. The SERE program was designed to train Army Special Forces personnel to resist torture if they were captured

It is also known that two military psychologists, James Mitchell and Bruce Jessen, who were key figures in designing the SERE program, left the CIA to create a private company called Mitchell Jessen & Associates, located in Spokane, Washington. That company then won a contract from the CIA to help it “reverse engineer” SERE so that it could be used to interrogate suspected terrorists

There is a growing body of evidence suggesting that the Mitchell-Jessen program – which employed most of the techniques now considered to be torture – was initiated before the Justice Department’s Office of Legal Counsel (OLC) issued its memos confirming the legality of these techniques.

That evidence suggests that while the Bush White House, the Vice President’s office and Justice Department lawyers were beginning to build the legal framework for torture, the two psychologists were already designing the interrogation techniques.

In an article on Vanity Fair's Web site reported that the high-value detainee Mitchell appears to have helped interrogate in March 2002 was Abu Zubaydah. Similar reports have appeared elsewhere; for example, in an article by Mark Benjamin in Salon.com, and by The New Yorker magazine’s Jane Mayer, in her book, “The Dark Side.”

The Vanity Fair article says that, “as Zubaydah clammed up, Mitchell seemed to conclude that Zubaydah would talk only when he had been reduced to complete helplessness and dependence. With that goal in mind, the CIA team began building a coffin in which they planned to bury the detainee alive.”

It continues: “CIA superiors reportedly overruled the suggestion to bury Zubaydah.” But according to Vanity Fair, Mitchell, along with fellow psychologist, Bruce Jessen, "reverse-engineered the tactics inflicted on SERE trainees":

“The C.I.A. put them in charge of training interrogators in the brutal techniques, including waterboarding at its network of "black sites,” the magazine says. In a statement, Mitchell and Jessen are quoted as saying, "We are proud of the work we have done for our country," the magazine reported.

Allegedly under Mitchell's guidance, interrogators used waterboarding with "far greater frequency than initially indicated" -- a total of 183 times in a month for Khalid Sheikh Mohammed – the alleged mastermind of the 9/11 attacks -- and 83 times in a month for Abu Zubaydah.

And media reports suggest that the main focus of the Zubaydah interrogation was to establish a connection betweeen al-Qaeda and Saddam Hussein’s regime in Iraq.

The CIA was secretly granted broad authority by President Bush days after 9/11 to target terrorists worldwide. Both the military and the spy agency were therefore following a policy approved at the highest levels of the Bush Administration.

The roles played by Mitchell, Jesson and other health professionals in the CIA interrogation programs have caused a firestorm in the psychologist community. Under pressure from many of its members, the American Psychological Association has passed a resolution barring its members from participating in similar programs in the future.

A cornucopia of politically charged information is virtually certain to surface if the Pelosi-CIA contretemps leads to formation of a commission to conduct an independent investigation.

If such a commission is formed, much of its work will likely be conducted behind closed doors. The public may initially learn very little about the details because virtually all the CIA-related material will be classified and it will probably take considerable time for a declassified version of the body’s report to become available publicly.

But many in Washington are saying that, even absent an official investigation, much more information about the CIA’s detention and interrogation practices is likely to find its way to the media in dribs and drabs.

About which we should all say: Bring it on!”



By William Fisher

The administration of President Barack Obama is considering the creation of a national security court to try cases in which there is enough reliable intelligence to hold a foreign terrorism suspect in preventive detention, but not enough to bring a case in federal court or even through military commissions.

Human rights advocates and legal experts confirm that the new institution is among the options being considered by the Justice Department Task Force Obama created to determine how best to adjudicate the cases of suspected terrorists held at the U.S. naval base at Guantanamo Bay, Cuba. Obama has pledged to close that detention center by January 2010.

But the idea of establishing a National Security Court is attracting widespread criticism because it would mean keeping some terrorism suspects on U.S. soil indefinitely.

While the idea of such a new court system is generally supported by conservatives, that support is far from universal.

Sen. Lindsey Graham, a conservative Republican from South Carolina and a military judge in the Air Force Reserve, notes the legal difficulties that would arise from a National Security Court. "How do you hold someone in prison without a trial indefinitely?" he asked.

Another prominent conservative, Bruce Fein, who served in the Justice Department under President Ronald Reagan, described the issues surrounding detention and trial of alleged terrorists as “the most important the Republic has confronted since the Civil War as to what America means. It should not mean Empire!”

Fein believes the regular Federal court system should be the venue for terrorism trials.

He told IPS, “Shortly after 9/11, Michael Chertoff, then head of the Criminal Division of DOJ, testified before the Senate Judiciary Committee that Article III federal courts have performed brilliantly in the trials of terrorism cases assisted by the Classified Information Procedures Act of 1980 (CIPA).”

CIPA enables trials without disclosing national security secrets where a summary of the incriminating evidence is sufficient to enable the accused to conduct a fair defense.

Fein says Chertoff told the Senate Judiciary Committee that "the history of this Government in prosecuting terrorists in domestic courts has been one of unmitigated success and one in which the judges have done a superb job of managing the courtroom and not compromising our concerns about security and our concerns about classified information."

He said the Obama administration “has failed to adduce a crumb of evidence, experience, or intuition suggesting that a national security court is necessary to secure justice -- unless the term is meant to include convicting the innocent like a page from Orwell’s 1984!”

Since 9/11, Federal courts have tried approximately 120 terror-related cases, with defendants including some considered among the most dangerous.

Prof. Francis Boyle of the University of Illinois law school agrees. He told IPS, “The proposal to establish a ‘National Security Court’ here in the United States would constitute a U.S. Constitutional abomination.”

“It would simply import the Gitmo Kangaroo Courts into the United States itself and purport to render these U.S. domestic kangaroo national security courts part of our longstanding constitutional system for the administration of justice going back to the foundation of our Republic,” he said, adding,

“U.S. domestic kangaroo National Security Courts would debase and degrade and corrupt and ultimately co-opt America's Article III Federal Court system, up to and including the U.S. Supreme Court. They would be one step removed from establishing a police state, which is really what their proponents have in mind,” he said.

A similar view is expressed by Chip Pitts, president of the Board of Directors of the Bill of Rights Defense Committee. He told IPS,

“The basic problem with National Security Courts is similar to that with military commissions or other second-tier systems not offering the full panoply of basic human rights and civil liberties to defendants: they posit a category of people (suspected terrorists) purportedly not entitled to basic constitutional and human rights including a full and genuine presumption of innocence with the associated opportunities to fairly defend themselves.”

He added, “These have been the very concerns prompting the U.S. to routinely object when such courts are used by other countries.”

He said, “The bottom-line is that such courts – like military commissions applying outside of the usual circumstances (real-world war, with battlefields etc) – are neither needed nor a good idea. They would risk being broadened and subjected to mission creep, but even if they can be limited to the circumstances contemplated would be an alarming step along the road toward a very different country indeed from what our founders envisioned.”

“The rule of law, by contrast, has proven to be a pretty good idea, along with its associated notions of human rights/civil liberties,” he said.

Jonathan Hafetz, an attorney with the American Civil Liberties Union’s National Security Project, believes the establishment of National Security Courts “would be a terrible mistake.”

He told IPS that these new courts “would institutionalize many of the worst features of Bush administration policies, perpetuating both indefinite detention and trial of terrorism suspects outside the established federal criminal courts.”

He added, “National security court proposals are riddled with constitutional flaws including reliance on secret evidence, elimination of core constitutional safeguards like the right to confront one's accusers, and the absence of protections against the use of evidence obtained by coercion. While they might be sold as a reform measure, national security courts are part of an agenda to continue the failed Guantanamo system rather than to end it.”

Brian J. Foley, Visiting Associate Professor at the Boston University law school, says U.S. detention policy “needs rethinking.”

He told IPS, “The current Guantanamo system has rules that are too soft and allow roundups of suspected terrorists based on unreliable evidence. Interrogating these people using harsh methods leads to false confessions and other statements calculated to end the abuse. Threatening them with trial by what amounts to a kangaroo court will also cause many to confess falsely.”

He says the result is that “U.S. anti-terror officials end up with a false picture of the enemy and waste their time chasing false leads and phantoms, which can distract them from actual terrorists. If the U.S. is to have a special court system for terrorists, it should be focused on coming to accurate results, not simply politically expedient convictions.”

Foley sees the current debate as an “opportunity for policymakers to think really hard about accuracy and about how rules can foster accuracy.”

He explains: “Most discussions right now are 'rights'- based. Accuracy, though, should be the focus on any such new court system”

He said he is “not convinced that alleged terrorists and war criminals and war criminals should not be tried in our regular courts. It would be easier to tinker with the existing system (which has developed slowly over the years) if necessary rather than building an entirely new one.”

Mark Shulman, a professor at the Pace University law school, sees an ominous similarity between the current discussion and the experiences of other countries.

“National security or terrorist courts in other countries offer troubling lessons, mostly because of their implications for the respect for civil liberties generally -- not only of the accused, but of the wider population,” he said, adding,

“Existing proposals to create such a court in the United States inadequately account for this risk, or explain how it would be minimized or mitigated. “Emergency systems in other countries have invariably reduced civil liberties for the general population.”

He emphasized that “it is important to recognize that these emergency systems in such diverse jurisdictions as Great Britain, Malaysia, and South Africa have diminished freedoms for society as a whole.”