By Mona Eltahawy
If justice really was a woman she would not survive long in Saudi Arabia.
Between the Kafkaesque-sounding Committee to Promote Virtue and Prevent Vice and its infamous morality police, and the hardline Wahhabi clerics who serve as judges with wide-ranging powers run amok in the absence of a written penal code, justice couldn’t stand a chance in the royal kingdom.
More barbaric than Kafkaesque is the case of Fawzia Falih, a 51-year-old Saudi citizen of Jordanian origin who is awaiting public execution -- by beheading -- for “witchcraft.” She had already been hospitalized from weeks of beatings by the morality police (the mutaween) prior to her conviction in April 2006.
Judges sentenced her to death based on a confession extracted during those beatings. Falih, who is illiterate, was made to fingerprint that confession although she could not read what it said. One witness against her was a man who claimed he had suddenly become impotent after Falih “bewitched” him.
In a rare moment of lucidity in September 2006, an appeals court threw out her capital conviction after Falih retracted the confession. But a lower court later ruled she should be executed in the “public interest.”
It would be macabre to call Falih lucky, but at least she understood the proceedings against her. I doubt that Rizana Nafeek, a Sri Lankan maid who just turned 20, understood a word of her “trial” which sentenced her to be beheaded.
Nafeek was accused of murdering a baby -- who she says choked as she was feeding it. She was only 17 at the time. She had no access to lawyers during either her interrogation or her trial. Like Falih, Nafeek also retracted a “confession” extracted during police questioning.
A Saudi court is said to be considering Nafeek’s appeal but human rights organizations are concerned because of Saudi Arabia’s alarmingly high rates of execution. At least 26 people, including three women, have been executed since 8 January, and at least 158 people -- including three women -- were executed in Saudi Arabia in 2007.
As those groups point out, Nafeek’s execution would be in contravention of the United Nations Convention on the Rights of the Child which prohibits the execution of offenders for crimes committed when they were under 18 years old.
In its complete mockery of justice, Saudi Arabia ignores these UN conventions -- even the ones it has signed. In 2000, it ratified an international bill of rights for women but stipulated that Islamic law (Sharia) would prevail if there were conflicts with its provisions.
A farce played out in Geneva earlier this year, when a Saudi delegation appeared for the first time before the UN women’s rights panel. Finally an international body grilled the Saudis to explain why, in the 21st century, women have to have a male guardian’s permission to do almost everything in the kingdom, and why women cannot drive.
It was absurd to hear the Saudis insist that women in their country faced no discrimination. But the most ludicrous claim came when the UN committee asked why Saudi men could marry up to four wives. With a straight face, a Saudi delegate -- a man of course -- explained that it was to ensure a man’s sexual appetite was satisfied legally if one wife could not fulfill it.
Not surprisingly, the UN special rapporteur on violence against women, Yakin Erturk, soon went to Saudi Arabia on a 10-day fact-finding mission. She criticized the mutaween and the cleric-judges, mentioning two more cases of women whose treatment at the hands of those entities is nothing short of surreal.
Erturk met with Fatima Azzaz who was forced to separate from her husband Mansour al-Timani in 2006 after her brothers persuaded judges that Timani was from a lesser tribe. Azzaz is being held in a government home for orphans with a young son. She refuses to return to her family home as required by a court order divorcing her from her husband, who has custody of their daughter.
One of the latest atrocities of the mutaween was the arrest in early February of a businesswoman known only as Yara, a 40-year-old mother of three, for sitting in a Starbucks coffee shop in Riyadh with a male colleague. She told the English-language daily Arab News she was taken to a prison, strip-searched and forced to sign a confession of being caught alone with an unrelated man. Yara said the morality police released her several hours later after her husband intervened. The man with whom Yara had coffee, an unidentified Syrian financial analyst, had also been arrested and released the following day.
As these cases show, a grilling by a UN watchdog and a fact-finding mission to explore the miserable state of women’s rights in Saudi Arabia were long overdue. But they are meaningless when Saudi Arabia daily abuses the very rights it has promised to uphold. It must choose -- either its Wahhabi 'justice' or international conventions.
By forcing it to choose, the civilized world supports Saudis who refuse to be intimidated by the morality police and the Wahhabi judges. Last year, several Saudis sued the mutaween for their abuses But my favorite story is of two young women out shopping last year who were chided by the mutaween apparently for wearing makeup. One of the young women pulled out a can of pepper spray and she emptied it into the face of the morality police as her friend filmed the incident with her mobile phone while calling the mutaween "terrorists."
You can't say Saudi women aren't fighting back.
Mona Eltahawy is an award-winning New York-based journalist and commentator, and an international lecturer on Arab and Muslim issues.
Wednesday, February 27, 2008
Monday, February 25, 2008
DISCLOSURE BY DRIP, DRIP, DRIP?
By William Fisher
Is it possible that the American people – and the world – are finally about to learn how George W. Bush decided that waterboarding and other “enhanced interrogation techniques” were “legal”?
Well, we probably shouldn’t get carried away by the notion of some epiphany that turned American history’s most secretive administration into some kind of paragon of transparency.
It’s probably more likely that government officials are finally being forced to respond to the seven-year drip-drip-drip of the Chinese water torture practiced by legal scholars and human rights advocates.
As Richard Nixon learned the hard way in 1974, stonewalling goes just so far.
Still, it’s worth pondering the remarkable events of the past few weeks.
Two weeks ago, CIA director Gen. Michael V. Hayden publicly admitted for the first time that the agency used waterboarding in 2002 and 2003 in the interrogation of three Al Qaeda suspects. The technique, which has been used since the Spanish Inquisition and has been found illegal in the past by American courts, involves pouring water into the nose and mouth to create a feeling of drowning.
Then, just last week, the U.S. and British governments revealed that two American "extraordinary rendition" flights carrying terrorism suspects refueled on U.K. territory on the island of Diego Garcia in the Indian Ocean in 2002. Both governments had repeatedly denied that the CIA had ever used British airspace or territory for the secret flights.
Foreign Minister David Miliband said he was "very sorry indeed" to have to correct previous denials by former Prime Minister Tony Blair and other top British officials. Prime Minister Gordon Brown expressed "disappointment" that the United States notified the British government of the flights just last week and called it a "very serious issue."
CIA Director Hayden issued a statement saying that information supplied to Britain "in good faith" had "turned out to be wrong."
Human rights advocates have long suspected that the Indian Ocean atoll was being used as a base for detaining or transporting suspected terrorists to countries whose security services are known to practice torture.
Now we learn that the Justice Department’s internal ethics office is investigating the department’s legal approval for waterboarding of al-Qaeda suspects by the CIA.
That disclosure came from H. Marshall Jarrett, the head of the department’s Office of Professional Responsibility. It was the first official acknowledgment that the Justice Department was conducting an internal review of the so-called “torture memos” the department prepared since 2002, authorizing waterboarding and other harsh interrogation methods.
This is no small deal. Jarrett’s report could become the first public accounting for legal advice that endorsed methods that human rights groups and constitutional authorities unreservedly define as torture.
Jarrett’s office has the power to refer matters for criminal prosecution or to reprimand or pursue disbarment of current or former Justice Department lawyers. The lawyers who gave the torture-is-OK advice are the precise targets of Jarrett’s review.
The Jarrett’s bombshell came as prosecutors and FBI agents continued their criminal investigation into the CIA’s 2005 destruction of videotapes of some of its interrogations. It also came just a week after President Bush threatened to veto a Congress-passed ban on such interrogations.
Jarett’s disclosure came in response to a letter from two Democratic senators, Richard J. Durbin of Illinois and Sheldon Whitehouse of Rhode Island.
The Senators wrote, “Despite the virtually unanimous consensus of legal scholars and the overwhelming weight of legal precedent that waterboarding is illegal, certain Justice Department officials, operating behind a veil of secrecy, concluded that the use of waterboarding is lawful. We believe it is appropriate for you to investigate the conduct of these Justice Department officials.”
Jarrett responded that he was looking into the basis for the legal advice contained in an August 2002 memo approving waterboarding. That memo -- drafted by Justice Department lawyer John Yoo and signed by Jay S. Bybee, then head of OLC -- concluded that interrogation methods were not torture unless they produced pain equivalent to that produced by organ failure or death. It was withdrawn in 2004.
Jarrett went still further. He said the investigation was also examining other legal memoranda prepared by OLC since 2002. Presumably, those would the opinions written in 2005 by Steven G. Bradbury, who is still the acting head of OLC. That memo reportedly gave legal approval for waterboarding and other tough methods. Congress has been trying for many months to see that memo.
News of Jarrett’s investigation can only be seem as something of a vindication for him. In 2006, when he tried to look into the Justice Department’s role in approving the National Security Agency’s domestic surveillance program, President Bush denied security clearances for Jarrett’s investigators, thus effectively shutting down the investigation.
But immediately after the Senate confirmed Michael Mukasey as attorney general last November, Bush relented and Jarrett’s staff began their review. That probe is ongoing.
Meanwhile, the future of one of the authors of some of the “torture memos” now being investigated remains iffy. He is Steven Bradbury, who has been nominated by President Bush to be chief of the Office of Legal Counsel (OLC). One of the DOJ’s most influential offices, OLC is responsible for drafting the legal opinions of the Attorney General and for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality.
Senators Whitehouse and Durbin – and a number of other lawmakers - have called on Mr. Bush to withdraw the Bradbury nomination.
Senator Whitehouse, a former United States attorney, said that the so-called “torture memos”, as well as classified opinions he had reviewed, failed to meet the Justice Department’s standards for scholarship.
He said that in approving waterboarding, the opinions failed to recognize U.S. prosecution of cases against Japanese officers for waterboarding American prisoners during World War II, and the 1983 opinion of a federal appeals court upholding the conviction of a Texas sheriff for using “water torture” on jail inmates.
Bradbury’s recent congressional testimony could not have provided much comfort to his critics. Appearing before a House committee, Bradbury maintained that the Bush administration allowed CIA interrogators to use tactics that were "quite distressing, uncomfortable, even frightening," but did not cause enough severe and lasting pain to meet the definition of torture.
In surprisingly direct testimony, Bradbury described in chilling detail how waterboarding was used to compel disclosures by prisoners suspected of being member of al-Qaeda.
One of those subjected to this tactic, he said, was Khalid Sheik Mohammed, the alleged masterminded of the Sept. 11, 2001, attacks. He is one of six detainees at the U.S. Naval Base at Guantanamo Bay, Cuba, who is scheduled to be tried by Military Commission. That raises the question of whether evidence obtained through torture will be admitted as evidence in his trial.
But Bradbury denied that the CIA’s waterboarding techniques were similar to the "water torture" used during the Spanish Inquisition and by the security services of dictatorial governments during the 20th century. He said that no water entered the lungs of the three “high value” prisoners who were subjected to the practice in 2002 and 2003.
Bradbury joined his boss, Attorney General Michael B. Mukasey, in declining to say whether waterboarding is torture, or whether it is illegal under laws passed in 2005 and 2006 to regulate abusive treatment of detainees.
He did acknowledge that the Military Commissions Act and other newer laws "would make it much more difficult to conclude that the practice was lawful today," but added that this was not the case in 2002, when the CIA's interrogation program began.
These developments would not be nearly as remarkable absent the steel curtain of secrecy behind which the Bush Administration has hidden for the past seven years. Perhaps we’re about to get our first peeks behind that curtain – albeit reluctantly and glacially.
In the aftermath of Nixon’s resignation, students of politics posited the notion that the cover-up is always worse than the crime. The modus operandi of Bush Administration has managed to debunk that old saw.
In the world of George W. Bush, the crime and the cover-up are equally disgraceful.
Is it possible that the American people – and the world – are finally about to learn how George W. Bush decided that waterboarding and other “enhanced interrogation techniques” were “legal”?
Well, we probably shouldn’t get carried away by the notion of some epiphany that turned American history’s most secretive administration into some kind of paragon of transparency.
It’s probably more likely that government officials are finally being forced to respond to the seven-year drip-drip-drip of the Chinese water torture practiced by legal scholars and human rights advocates.
As Richard Nixon learned the hard way in 1974, stonewalling goes just so far.
Still, it’s worth pondering the remarkable events of the past few weeks.
Two weeks ago, CIA director Gen. Michael V. Hayden publicly admitted for the first time that the agency used waterboarding in 2002 and 2003 in the interrogation of three Al Qaeda suspects. The technique, which has been used since the Spanish Inquisition and has been found illegal in the past by American courts, involves pouring water into the nose and mouth to create a feeling of drowning.
Then, just last week, the U.S. and British governments revealed that two American "extraordinary rendition" flights carrying terrorism suspects refueled on U.K. territory on the island of Diego Garcia in the Indian Ocean in 2002. Both governments had repeatedly denied that the CIA had ever used British airspace or territory for the secret flights.
Foreign Minister David Miliband said he was "very sorry indeed" to have to correct previous denials by former Prime Minister Tony Blair and other top British officials. Prime Minister Gordon Brown expressed "disappointment" that the United States notified the British government of the flights just last week and called it a "very serious issue."
CIA Director Hayden issued a statement saying that information supplied to Britain "in good faith" had "turned out to be wrong."
Human rights advocates have long suspected that the Indian Ocean atoll was being used as a base for detaining or transporting suspected terrorists to countries whose security services are known to practice torture.
Now we learn that the Justice Department’s internal ethics office is investigating the department’s legal approval for waterboarding of al-Qaeda suspects by the CIA.
That disclosure came from H. Marshall Jarrett, the head of the department’s Office of Professional Responsibility. It was the first official acknowledgment that the Justice Department was conducting an internal review of the so-called “torture memos” the department prepared since 2002, authorizing waterboarding and other harsh interrogation methods.
This is no small deal. Jarrett’s report could become the first public accounting for legal advice that endorsed methods that human rights groups and constitutional authorities unreservedly define as torture.
Jarrett’s office has the power to refer matters for criminal prosecution or to reprimand or pursue disbarment of current or former Justice Department lawyers. The lawyers who gave the torture-is-OK advice are the precise targets of Jarrett’s review.
The Jarrett’s bombshell came as prosecutors and FBI agents continued their criminal investigation into the CIA’s 2005 destruction of videotapes of some of its interrogations. It also came just a week after President Bush threatened to veto a Congress-passed ban on such interrogations.
Jarett’s disclosure came in response to a letter from two Democratic senators, Richard J. Durbin of Illinois and Sheldon Whitehouse of Rhode Island.
The Senators wrote, “Despite the virtually unanimous consensus of legal scholars and the overwhelming weight of legal precedent that waterboarding is illegal, certain Justice Department officials, operating behind a veil of secrecy, concluded that the use of waterboarding is lawful. We believe it is appropriate for you to investigate the conduct of these Justice Department officials.”
Jarrett responded that he was looking into the basis for the legal advice contained in an August 2002 memo approving waterboarding. That memo -- drafted by Justice Department lawyer John Yoo and signed by Jay S. Bybee, then head of OLC -- concluded that interrogation methods were not torture unless they produced pain equivalent to that produced by organ failure or death. It was withdrawn in 2004.
Jarrett went still further. He said the investigation was also examining other legal memoranda prepared by OLC since 2002. Presumably, those would the opinions written in 2005 by Steven G. Bradbury, who is still the acting head of OLC. That memo reportedly gave legal approval for waterboarding and other tough methods. Congress has been trying for many months to see that memo.
News of Jarrett’s investigation can only be seem as something of a vindication for him. In 2006, when he tried to look into the Justice Department’s role in approving the National Security Agency’s domestic surveillance program, President Bush denied security clearances for Jarrett’s investigators, thus effectively shutting down the investigation.
But immediately after the Senate confirmed Michael Mukasey as attorney general last November, Bush relented and Jarrett’s staff began their review. That probe is ongoing.
Meanwhile, the future of one of the authors of some of the “torture memos” now being investigated remains iffy. He is Steven Bradbury, who has been nominated by President Bush to be chief of the Office of Legal Counsel (OLC). One of the DOJ’s most influential offices, OLC is responsible for drafting the legal opinions of the Attorney General and for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality.
Senators Whitehouse and Durbin – and a number of other lawmakers - have called on Mr. Bush to withdraw the Bradbury nomination.
Senator Whitehouse, a former United States attorney, said that the so-called “torture memos”, as well as classified opinions he had reviewed, failed to meet the Justice Department’s standards for scholarship.
He said that in approving waterboarding, the opinions failed to recognize U.S. prosecution of cases against Japanese officers for waterboarding American prisoners during World War II, and the 1983 opinion of a federal appeals court upholding the conviction of a Texas sheriff for using “water torture” on jail inmates.
Bradbury’s recent congressional testimony could not have provided much comfort to his critics. Appearing before a House committee, Bradbury maintained that the Bush administration allowed CIA interrogators to use tactics that were "quite distressing, uncomfortable, even frightening," but did not cause enough severe and lasting pain to meet the definition of torture.
In surprisingly direct testimony, Bradbury described in chilling detail how waterboarding was used to compel disclosures by prisoners suspected of being member of al-Qaeda.
One of those subjected to this tactic, he said, was Khalid Sheik Mohammed, the alleged masterminded of the Sept. 11, 2001, attacks. He is one of six detainees at the U.S. Naval Base at Guantanamo Bay, Cuba, who is scheduled to be tried by Military Commission. That raises the question of whether evidence obtained through torture will be admitted as evidence in his trial.
But Bradbury denied that the CIA’s waterboarding techniques were similar to the "water torture" used during the Spanish Inquisition and by the security services of dictatorial governments during the 20th century. He said that no water entered the lungs of the three “high value” prisoners who were subjected to the practice in 2002 and 2003.
Bradbury joined his boss, Attorney General Michael B. Mukasey, in declining to say whether waterboarding is torture, or whether it is illegal under laws passed in 2005 and 2006 to regulate abusive treatment of detainees.
He did acknowledge that the Military Commissions Act and other newer laws "would make it much more difficult to conclude that the practice was lawful today," but added that this was not the case in 2002, when the CIA's interrogation program began.
These developments would not be nearly as remarkable absent the steel curtain of secrecy behind which the Bush Administration has hidden for the past seven years. Perhaps we’re about to get our first peeks behind that curtain – albeit reluctantly and glacially.
In the aftermath of Nixon’s resignation, students of politics posited the notion that the cover-up is always worse than the crime. The modus operandi of Bush Administration has managed to debunk that old saw.
In the world of George W. Bush, the crime and the cover-up are equally disgraceful.
Sunday, February 24, 2008
US: MORE “WAR ON TERROR” WOES
By William Fisher
As the U.S. Central Intelligence Agency acknowledged it had erroneously denied using British territory to transport victims of “extraordinary rendition,” a federal court bowed to pressure from the Bush administration to dismiss a case against a Boeing subsidiary being sued for providing the aircraft that carried the suspected terrorists.
The U.S. and British governments revealed last week that two American. extraordinary rendition" flights carrying terrorism suspects refueled on U.K. territory on the island of Diego Garcia in the Indian Ocean in 2002. Both governments had repeatedly denied that the U.S. Central Intelligence Agency (CIA) had ever used British airspace or territory for the secret flights.
Foreign Minister David Miliband said he was "very sorry indeed" to have to correct previous denials by former Prime Minister Tony Blair and other top British officials. Prime Minister Gordon Brown expressed "disappointment" that the United States notified the British government of the flights just last week and called it a "very serious issue."
In a telephone call, U.S. Secretary of State Condoleezza Rice apologized to Brown. CIA Director Michael V. Hayden issued a statement saying that information supplied to Britain "in good faith" had "turned out to be wrong."
Human rights advocates have long suspected that the Indian Ocean atoll was being used as a base for detaining or transporting suspected terrorists.
The British government has consistently denied any involvement in the CIA's rendition program, in which terror suspects are flown for interrogation to countries whose security services are known to practice torture.
Meanwhile, a Federal judge last week dismissed a lawsuit brought by the American Civil Liberties Union (ACLU) against a subsidiary of the Boeing Company, Jeppesen Dataplan, Inc. for the company’s alleged role in the CIA’s “extraordinary rendition” program.
The suit charged that Jeppesen knowingly aided the program by providing flight planning and logistical support services for aircraft and crews used by the CIA to transport victims to U.S.-run prisons or foreign intelligence agencies overseas, where they were subjected to harsh interrogation techniques and torture.
The government successfully intervened to block the suit, arguing that litigation of the case would reveal “state secrets” and harm national security. The Bush Administration has increasingly used the so-called State Secrets Privilege to block lawsuits.
The judge rejected the ACLU’s claim that “abundant evidence” was already in the public domain, including a sworn affidavit by a former Jeppesen employee and flight records confirming Jeppesen’s involvement. It was unclear whether the ACLU would appeal the verdict.
In a related development, the U.S. Senate Judiciary Committee convened a hearing on the bipartisan State Secrets Protection Act, which would require courts to examine classified evidence instead of dismissing cases on the word of the perpetrators themselves, and would prohibit any dismissal prior to discovery. The measure has been introduced by Senators Edward Kennedy, Democrat of Massachusetts and Pennsylvania Republican Arlen Specter, the committee’s ranking member.
These developments came on the heels of congressional testimony by a controversial Department of Justice (DOJ) lawyer, Steven G. Bradbury, during which he admitted that Bush administration allowed CIA interrogators to use tactics that were "quite distressing, uncomfortable, even frightening," but did not cause enough severe and lasting pain to qualify as torture.
President George W. Bush has nominated Bradbury to head the DOJ’s Office of Legal Counsel (OLC), of which he is now acting chief. He is the author of several DOJ memoranda purporting to establish a legal basis for the use of waterboarding and other harsh interrogation techniques. Waterboarding is generally defined as “simulated drowning.”
OLC, one of the DOJ’s most influential offices, drafts legal opinions of the Attorney General and also provides its own written opinions. The Office also is responsible for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality.
In surprisingly direct testimony before a House of Representatives committee, Bradbury described in grim detail how the administration regulated the CIA's use of aggressive tactics and offered new details of how waterboarding -- simulated drowning -- was used to compel disclosures by prisoners suspected of being al-Qaeda members.
He denied that the CIA’s waterboarding techniques were similar to the "water torture" used during the Spanish Inquisition and by the security services of dictatorial governments during the 20th century. He said it was subject to "strict time limits, safeguards, restrictions" and that no water entered the lungs of the three “high value” prisoners who were subjected to the practice in 2002 and 2003.
Bradbury joined his boss, Attorney General Michael B. Mukasey, in declining to say whether waterboarding is torture, or whether it is illegal under laws passed in 2005 and 2006 to regulate abusive treatment of detainees.
He said the Military Commissions Act and other newer laws "would make it much more difficult to conclude that the practice was lawful today," but added that this was not the case in 2002, when the CIA's interrogation program began. At that time, DOJ lawyers concluded, in secret legal opinions, that waterboarding and other tactics were legal.
Experts on human rights abuses and torture say the CIA waterboarding is similar to the technique employed by the Khmer Rouge in Cambodia, the French in Algeria, and the security services in Myanmar (Burma).
CIA Director Michael V. Hayden recently confirmed the use of waterboarding for the first time but said the practice is no longer allowed under CIA rules. One of those subjected to the tactic, he said, was Khalid Sheik Mohammed, the alleged masterminded of the Sept. 11, 2001, attacks. He is one of six detainees at the U.S. Naval Base at Guantanamo Bay, Cuba, who is scheduled to be tried by Military Commission.
Guantanamo Bay continued to be subjected to ongoing scrutiny by legal experts and civil liberties advocates. A new study announced by Prof. Mark Denbeaux of the Seton Hall University School of Law revealed that more than 24,000 interrogations have been conducted at Guantánamo since 2002 – and claimed that every one was videotaped.
Conducted by Seton Hall faculty and students, the study is based largely on U.S. Government documents obtained under the Freedom of Information Act. The study concluded it was not possible to determine which videotapes still exist, and which have been destroyed.
In a 2005 case, a federal judge issued an order to the Government mandating that "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at (Guantánamo Bay) be preserved. But in November 2005, CIA officials destroyed at least two videotapes documenting the interrogations of two Guantánamo detainees.
The destruction of the two tapes has caused a firestorm of protest in congress and among human rights advocates.
Gabor Rona, International Legal Director of advocacy group Human Rights First, summed up the situation, telling IPS, “The administration refuses to name torture torture, destroys the evidence of torture, and obstructs the efforts of torture victims to seek justice in the courts. It does so to protect those who authorized and administered torture from having to face criminal accountability for war crimes and civil liability to the victims. It also does this to maintain its ability to offer illegal and unreliable evidence that is based on torture in the Guantanamo military commissions.”
He added, “The authorization, implementation and cover-up of torture violates U.S. and international law, undermines U.S. standing to promote democracy and human rights, and serves as a green light to despotic regimes around the world to trample human rights in the name of counterterrorism."
As the U.S. Central Intelligence Agency acknowledged it had erroneously denied using British territory to transport victims of “extraordinary rendition,” a federal court bowed to pressure from the Bush administration to dismiss a case against a Boeing subsidiary being sued for providing the aircraft that carried the suspected terrorists.
The U.S. and British governments revealed last week that two American. extraordinary rendition" flights carrying terrorism suspects refueled on U.K. territory on the island of Diego Garcia in the Indian Ocean in 2002. Both governments had repeatedly denied that the U.S. Central Intelligence Agency (CIA) had ever used British airspace or territory for the secret flights.
Foreign Minister David Miliband said he was "very sorry indeed" to have to correct previous denials by former Prime Minister Tony Blair and other top British officials. Prime Minister Gordon Brown expressed "disappointment" that the United States notified the British government of the flights just last week and called it a "very serious issue."
In a telephone call, U.S. Secretary of State Condoleezza Rice apologized to Brown. CIA Director Michael V. Hayden issued a statement saying that information supplied to Britain "in good faith" had "turned out to be wrong."
Human rights advocates have long suspected that the Indian Ocean atoll was being used as a base for detaining or transporting suspected terrorists.
The British government has consistently denied any involvement in the CIA's rendition program, in which terror suspects are flown for interrogation to countries whose security services are known to practice torture.
Meanwhile, a Federal judge last week dismissed a lawsuit brought by the American Civil Liberties Union (ACLU) against a subsidiary of the Boeing Company, Jeppesen Dataplan, Inc. for the company’s alleged role in the CIA’s “extraordinary rendition” program.
The suit charged that Jeppesen knowingly aided the program by providing flight planning and logistical support services for aircraft and crews used by the CIA to transport victims to U.S.-run prisons or foreign intelligence agencies overseas, where they were subjected to harsh interrogation techniques and torture.
The government successfully intervened to block the suit, arguing that litigation of the case would reveal “state secrets” and harm national security. The Bush Administration has increasingly used the so-called State Secrets Privilege to block lawsuits.
The judge rejected the ACLU’s claim that “abundant evidence” was already in the public domain, including a sworn affidavit by a former Jeppesen employee and flight records confirming Jeppesen’s involvement. It was unclear whether the ACLU would appeal the verdict.
In a related development, the U.S. Senate Judiciary Committee convened a hearing on the bipartisan State Secrets Protection Act, which would require courts to examine classified evidence instead of dismissing cases on the word of the perpetrators themselves, and would prohibit any dismissal prior to discovery. The measure has been introduced by Senators Edward Kennedy, Democrat of Massachusetts and Pennsylvania Republican Arlen Specter, the committee’s ranking member.
These developments came on the heels of congressional testimony by a controversial Department of Justice (DOJ) lawyer, Steven G. Bradbury, during which he admitted that Bush administration allowed CIA interrogators to use tactics that were "quite distressing, uncomfortable, even frightening," but did not cause enough severe and lasting pain to qualify as torture.
President George W. Bush has nominated Bradbury to head the DOJ’s Office of Legal Counsel (OLC), of which he is now acting chief. He is the author of several DOJ memoranda purporting to establish a legal basis for the use of waterboarding and other harsh interrogation techniques. Waterboarding is generally defined as “simulated drowning.”
OLC, one of the DOJ’s most influential offices, drafts legal opinions of the Attorney General and also provides its own written opinions. The Office also is responsible for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality.
In surprisingly direct testimony before a House of Representatives committee, Bradbury described in grim detail how the administration regulated the CIA's use of aggressive tactics and offered new details of how waterboarding -- simulated drowning -- was used to compel disclosures by prisoners suspected of being al-Qaeda members.
He denied that the CIA’s waterboarding techniques were similar to the "water torture" used during the Spanish Inquisition and by the security services of dictatorial governments during the 20th century. He said it was subject to "strict time limits, safeguards, restrictions" and that no water entered the lungs of the three “high value” prisoners who were subjected to the practice in 2002 and 2003.
Bradbury joined his boss, Attorney General Michael B. Mukasey, in declining to say whether waterboarding is torture, or whether it is illegal under laws passed in 2005 and 2006 to regulate abusive treatment of detainees.
He said the Military Commissions Act and other newer laws "would make it much more difficult to conclude that the practice was lawful today," but added that this was not the case in 2002, when the CIA's interrogation program began. At that time, DOJ lawyers concluded, in secret legal opinions, that waterboarding and other tactics were legal.
Experts on human rights abuses and torture say the CIA waterboarding is similar to the technique employed by the Khmer Rouge in Cambodia, the French in Algeria, and the security services in Myanmar (Burma).
CIA Director Michael V. Hayden recently confirmed the use of waterboarding for the first time but said the practice is no longer allowed under CIA rules. One of those subjected to the tactic, he said, was Khalid Sheik Mohammed, the alleged masterminded of the Sept. 11, 2001, attacks. He is one of six detainees at the U.S. Naval Base at Guantanamo Bay, Cuba, who is scheduled to be tried by Military Commission.
Guantanamo Bay continued to be subjected to ongoing scrutiny by legal experts and civil liberties advocates. A new study announced by Prof. Mark Denbeaux of the Seton Hall University School of Law revealed that more than 24,000 interrogations have been conducted at Guantánamo since 2002 – and claimed that every one was videotaped.
Conducted by Seton Hall faculty and students, the study is based largely on U.S. Government documents obtained under the Freedom of Information Act. The study concluded it was not possible to determine which videotapes still exist, and which have been destroyed.
In a 2005 case, a federal judge issued an order to the Government mandating that "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at (Guantánamo Bay) be preserved. But in November 2005, CIA officials destroyed at least two videotapes documenting the interrogations of two Guantánamo detainees.
The destruction of the two tapes has caused a firestorm of protest in congress and among human rights advocates.
Gabor Rona, International Legal Director of advocacy group Human Rights First, summed up the situation, telling IPS, “The administration refuses to name torture torture, destroys the evidence of torture, and obstructs the efforts of torture victims to seek justice in the courts. It does so to protect those who authorized and administered torture from having to face criminal accountability for war crimes and civil liability to the victims. It also does this to maintain its ability to offer illegal and unreliable evidence that is based on torture in the Guantanamo military commissions.”
He added, “The authorization, implementation and cover-up of torture violates U.S. and international law, undermines U.S. standing to promote democracy and human rights, and serves as a green light to despotic regimes around the world to trample human rights in the name of counterterrorism."
Friday, February 22, 2008
BOEING SUBSIDIARY SCOT FREE, HAYDEN, BRADBURY ON THE HOT SEAT
By William Fisher
As the U.S. Central Intelligence Agency acknowledged it had erroneously denied using British territory to transport victims of “extraordinary rendition,” a federal court bowed to pressure from the Bush administration to dismiss a case against a Boeing subsidiary being sued for providing the aircraft that carried the suspected terrorists.
The U.S. and British governments revealed last week that two American. "extraordinary rendition" flights carrying terrorism suspects refueled on U.K. territory on the island of Diego Garcia in the Indian Ocean in 2002. Both governments had repeatedly denied that the U.S. Central Intelligence Agency (CIA) had ever used British airspace or territory for the secret flights.
Foreign Minister David Miliband said he was "very sorry indeed" to have to correct previous denials by former Prime Minister Tony Blair and other top British officials. Prime Minister Gordon Brown expressed "disappointment" that the United States notified the British government of the flights just last week and called it a "very serious issue."
In a telephone call, U.S. Secretary of State Condoleezza Rice apologized to Brown. CIA Director Michael V. Hayden issued a statement saying that information supplied to Britain "in good faith" had "turned out to be wrong."
Human rights advocates have long suspected that the Indian Ocean atoll was being used as a base for detaining or transporting suspected terrorists.
The British government has consistently denied any involvement in the CIA's rendition program, in which terror suspects are flown for interrogation to countries whose security services are known to practice torture.
Meanwhile, a Federal judge last week dismissed a lawsuit brought by the American Civil Liberties Union (ACLU) against a subsidiary of the Boeing Company, Jeppesen Dataplan, Inc. for the company’s alleged role in the CIA’s “extraordinary rendition” program.
The suit charged that Jeppesen knowingly aided the program by providing flight planning and logistical support services for aircraft and crews used by the CIA to transport victims to U.S.-run prisons or foreign intelligence agencies overseas, where they were subjected to harsh interrogation techniques and torture.
The government successfully intervened to block the suit, arguing that litigation of the case would reveal “state secrets” and harm national security. The Bush Administration has increasingly used the so-called State Secrets Privilege to block lawsuits.
The judge rejected the ACLU’s claim that “abundant evidence” was already in the public domain, including a sworn affidavit by a former Jeppesen employee and flight records confirming Jeppesen’s involvement. It was unclear whether the ACLU would appeal the verdict.
In a related development, the U.S. Senate Judiciary Committee convened a hearing on the bipartisan State Secrets Protection Act, which would require courts to examine classified evidence instead of dismissing cases on the word of the perpetrators themselves, and would prohibit any dismissal prior to discovery. The measure has been introduced by Senators Edward Kennedy, Democrat of Massachusetts and Pennsylvania Republican Arlen Specter, the committee’s ranking member.
These developments came on the heels of congressional testimony by a controversial Department of Justice (DOJ) lawyer, Steven G. Bradbury, during which he admitted that Bush administration allowed CIA interrogators to use tactics that were "quite distressing, uncomfortable, even frightening," but did not cause enough severe and lasting pain to qualify as torture.
President George W. Bush has nominated Bradbury to head the DOJ’s Office of Legal Counsel (OLC), of which he is now acting chief. He is the author of several DOJ memoranda purporting to establish a legal basis for the use of waterboarding and other harsh interrogation techniques. Waterboarding is generally defined as “simulated drowning.”
OLC, one of the DOJ’s most influential offices, drafts legal opinions of the Attorney General and also provides its own written opinions. The Office also is responsible for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality.
In surprisingly direct testimony before a House of Representatives committee, Bradbury described in grim detail how the administration regulated the CIA's use of aggressive tactics and offered new details of how waterboarding -- simulated drowning -- was used to compel disclosures by prisoners suspected of being al-Qaeda members.
He denied that the CIA’s waterboarding techniques were similar to the "water torture" used during the Spanish Inquisition and by the security services of dictatorial governments during the 20th century. He said it was subject to "strict time limits, safeguards, restrictions" and that no water entered the lungs of the three “high value” prisoners who were subjected to the practice in 2002 and 2003.
Bradbury joined his boss, Attorney General Michael B. Mukasey, in declining to say whether waterboarding is torture, or whether it is illegal under laws passed in 2005 and 2006 to regulate abusive treatment of detainees.
He said the Military Commissions Act and other newer laws "would make it much more difficult to conclude that the practice was lawful today," but added that this was not the case in 2002, when the CIA's interrogation program began. At that time, DOJ lawyers concluded, in secret legal opinions, that waterboarding and other tactics were legal.
Experts on human rights abuses and torture say the CIA waterboarding is similar to the technique employed by the Khmer Rouge in Cambodia, the French in Algeria, and the security services in Myanmar (Burma).
CIA Director Michael V. Hayden recently confirmed the use of waterboarding for the first time but said the practice is no longer allowed under CIA rules. One of those subjected to the tactic, he said, was Khalid Sheik Mohammed, the alleged masterminded of the Sept. 11, 2001, attacks. He is one of six detainees at the U.S. Naval Base at Guantanamo Bay, Cuba, who is scheduled to be tried by Military Commission.
Guantanamo Bay continued to be subjected to ongoing scrutiny by legal experts and civil liberties advocates. A new study announced by Prof. Mark Denbeaux of the Seton Hall University School of Law revealed that more than 24,000 interrogations have been conducted at Guantánamo since 2002 – and claimed that every one was videotaped.
Conducted by Seton Hall faculty and students, the study is based largely on U.S. Government documents obtained under the Freedom of Information Act. The study concluded it was not possible to determine which videotapes still exist, and which have been destroyed.
In a 2005 case, a federal judge issued an order to the Government mandating that "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at (Guantánamo Bay) be preserved. But in November 2005, CIA officials destroyed at least two videotapes documenting the interrogations of two Guantánamo detainees.
The destruction of the two tapes has caused a firestorm of protest in congress and among human rights advocates.
Gabor Rona, International Legal Director of advocacy group Human Rights First, summed up the situation, telling IPS, “The administration refuses to name torture torture, destroys the evidence of torture, and obstructs the efforts of torture victims to seek justice in the courts. It does so to protect those who authorized and administered torture from having to face criminal accountability for war crimes and civil liability to the victims. It also does this to maintain its ability to offer illegal and unreliable evidence that is based on torture in the Guantanamo military commissions.”
He added, “The authorization, implementation and cover-up of torture violates U.S. and international law, undermines U.S. standing to promote democracy and human rights, and serves as a green light to despotic regimes around the world to trample human rights in the name of counterterrorism."
As the U.S. Central Intelligence Agency acknowledged it had erroneously denied using British territory to transport victims of “extraordinary rendition,” a federal court bowed to pressure from the Bush administration to dismiss a case against a Boeing subsidiary being sued for providing the aircraft that carried the suspected terrorists.
The U.S. and British governments revealed last week that two American. "extraordinary rendition" flights carrying terrorism suspects refueled on U.K. territory on the island of Diego Garcia in the Indian Ocean in 2002. Both governments had repeatedly denied that the U.S. Central Intelligence Agency (CIA) had ever used British airspace or territory for the secret flights.
Foreign Minister David Miliband said he was "very sorry indeed" to have to correct previous denials by former Prime Minister Tony Blair and other top British officials. Prime Minister Gordon Brown expressed "disappointment" that the United States notified the British government of the flights just last week and called it a "very serious issue."
In a telephone call, U.S. Secretary of State Condoleezza Rice apologized to Brown. CIA Director Michael V. Hayden issued a statement saying that information supplied to Britain "in good faith" had "turned out to be wrong."
Human rights advocates have long suspected that the Indian Ocean atoll was being used as a base for detaining or transporting suspected terrorists.
The British government has consistently denied any involvement in the CIA's rendition program, in which terror suspects are flown for interrogation to countries whose security services are known to practice torture.
Meanwhile, a Federal judge last week dismissed a lawsuit brought by the American Civil Liberties Union (ACLU) against a subsidiary of the Boeing Company, Jeppesen Dataplan, Inc. for the company’s alleged role in the CIA’s “extraordinary rendition” program.
The suit charged that Jeppesen knowingly aided the program by providing flight planning and logistical support services for aircraft and crews used by the CIA to transport victims to U.S.-run prisons or foreign intelligence agencies overseas, where they were subjected to harsh interrogation techniques and torture.
The government successfully intervened to block the suit, arguing that litigation of the case would reveal “state secrets” and harm national security. The Bush Administration has increasingly used the so-called State Secrets Privilege to block lawsuits.
The judge rejected the ACLU’s claim that “abundant evidence” was already in the public domain, including a sworn affidavit by a former Jeppesen employee and flight records confirming Jeppesen’s involvement. It was unclear whether the ACLU would appeal the verdict.
In a related development, the U.S. Senate Judiciary Committee convened a hearing on the bipartisan State Secrets Protection Act, which would require courts to examine classified evidence instead of dismissing cases on the word of the perpetrators themselves, and would prohibit any dismissal prior to discovery. The measure has been introduced by Senators Edward Kennedy, Democrat of Massachusetts and Pennsylvania Republican Arlen Specter, the committee’s ranking member.
These developments came on the heels of congressional testimony by a controversial Department of Justice (DOJ) lawyer, Steven G. Bradbury, during which he admitted that Bush administration allowed CIA interrogators to use tactics that were "quite distressing, uncomfortable, even frightening," but did not cause enough severe and lasting pain to qualify as torture.
President George W. Bush has nominated Bradbury to head the DOJ’s Office of Legal Counsel (OLC), of which he is now acting chief. He is the author of several DOJ memoranda purporting to establish a legal basis for the use of waterboarding and other harsh interrogation techniques. Waterboarding is generally defined as “simulated drowning.”
OLC, one of the DOJ’s most influential offices, drafts legal opinions of the Attorney General and also provides its own written opinions. The Office also is responsible for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality.
In surprisingly direct testimony before a House of Representatives committee, Bradbury described in grim detail how the administration regulated the CIA's use of aggressive tactics and offered new details of how waterboarding -- simulated drowning -- was used to compel disclosures by prisoners suspected of being al-Qaeda members.
He denied that the CIA’s waterboarding techniques were similar to the "water torture" used during the Spanish Inquisition and by the security services of dictatorial governments during the 20th century. He said it was subject to "strict time limits, safeguards, restrictions" and that no water entered the lungs of the three “high value” prisoners who were subjected to the practice in 2002 and 2003.
Bradbury joined his boss, Attorney General Michael B. Mukasey, in declining to say whether waterboarding is torture, or whether it is illegal under laws passed in 2005 and 2006 to regulate abusive treatment of detainees.
He said the Military Commissions Act and other newer laws "would make it much more difficult to conclude that the practice was lawful today," but added that this was not the case in 2002, when the CIA's interrogation program began. At that time, DOJ lawyers concluded, in secret legal opinions, that waterboarding and other tactics were legal.
Experts on human rights abuses and torture say the CIA waterboarding is similar to the technique employed by the Khmer Rouge in Cambodia, the French in Algeria, and the security services in Myanmar (Burma).
CIA Director Michael V. Hayden recently confirmed the use of waterboarding for the first time but said the practice is no longer allowed under CIA rules. One of those subjected to the tactic, he said, was Khalid Sheik Mohammed, the alleged masterminded of the Sept. 11, 2001, attacks. He is one of six detainees at the U.S. Naval Base at Guantanamo Bay, Cuba, who is scheduled to be tried by Military Commission.
Guantanamo Bay continued to be subjected to ongoing scrutiny by legal experts and civil liberties advocates. A new study announced by Prof. Mark Denbeaux of the Seton Hall University School of Law revealed that more than 24,000 interrogations have been conducted at Guantánamo since 2002 – and claimed that every one was videotaped.
Conducted by Seton Hall faculty and students, the study is based largely on U.S. Government documents obtained under the Freedom of Information Act. The study concluded it was not possible to determine which videotapes still exist, and which have been destroyed.
In a 2005 case, a federal judge issued an order to the Government mandating that "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at (Guantánamo Bay) be preserved. But in November 2005, CIA officials destroyed at least two videotapes documenting the interrogations of two Guantánamo detainees.
The destruction of the two tapes has caused a firestorm of protest in congress and among human rights advocates.
Gabor Rona, International Legal Director of advocacy group Human Rights First, summed up the situation, telling IPS, “The administration refuses to name torture torture, destroys the evidence of torture, and obstructs the efforts of torture victims to seek justice in the courts. It does so to protect those who authorized and administered torture from having to face criminal accountability for war crimes and civil liability to the victims. It also does this to maintain its ability to offer illegal and unreliable evidence that is based on torture in the Guantanamo military commissions.”
He added, “The authorization, implementation and cover-up of torture violates U.S. and international law, undermines U.S. standing to promote democracy and human rights, and serves as a green light to despotic regimes around the world to trample human rights in the name of counterterrorism."
Monday, February 18, 2008
THE REAL STRAIGHT-TALK EXPRESS
By William Fisher
I usually raise my glass in gleeful celebration every time some senior member of the Bush Administration announces he’s leaving office “to spend more time with his family” or some other lame pro forma Washington excuse.
That usually means he/she is leaving in disgrace. Or yearning for the big bucks on the lecture circuit. Or on his/her way to the slammer.
But today is different.
Today, I lament the departure of one of the most courageous, effective and thoughtful public servants ever to serve the United States.
His name is David M. Walker. Most Americans have never heard of him. His title is Comtroller General of the United States. That’s Comptroller with an M. His job is to head the Government Accountability Office, or GAO. The GAO is the investigative agency of Congress.
Most Americans have never heard of the GAO either.
Pity. Because, in a government of incompetents, spinners, cronies, political hacks, wiretappers and torturers, David Walker’s GAO has been one of the very few bright lights in town.
And he’s a Republican! Imagine me celebrating a departing Republican!
But that’s where the similarity with Dubya ends.
Because David Walker is the kind of Republican who has become an endangered – almost extinct -- species in Bush’s Washington. He’s what the conductor of the Straight-Talk Express pretends to be and what he would like us to believe he is.
A word about the GAO. It used to be called the General Accounting Office. But its name was changed a few years ago to more accurately reflect what it actually does. Which is to hold the government accountable. Its head is by statute appointed by the president for a 15-year term. Which is how Walker got selected by Bill Clinton in 1998. My bet is that Dubya has deep regrets about that decision.
Because holding the government accountable is indeed what GAO has done under David Walker’s leadership. It has investigated government incompetence, waste, fraud and abuse in every Cabinet department and dozens of agencies. The range of subjects it has looked into last year alone is breathtaking. Contractor malfeasance in Iraq and Afghanistan. The failures of FEMA and other agencies to respond adequately to Katrina. The consistently criminal waste by the Pentagon. The failure of the Defense Department and the Veterans Administration to meet minimal standards for providing health care and benefits for our returning warriors. Runaway spending and the absence of even minimal systems to account for that spending. And much, much more.
On behalf of Congress, David Walker and his staff have spoken truth to power.
But, to its great credit, it has resisted being mesmerized by its power to expose. Every GAO report – and there and hundreds of them – tells those with the patience to read not only what’s wrong with a department or a program. It tells those who run these things what they need to do to fix their problems.
This has made the GAO the most agreed-with and most soon-forgotten agency in government. Departments and agencies the GAO has investigated rarely object to its corrective recommendations. In fact, most of them agree. But they rarely take action to implement those recommendations – or they make all the right noises and slow-walk GAO’s suggestions into oblivion.
As for GAO’s masters, the Congress, its members are perfectly delighted to use GAO’s findings to convene “oversight” hearings, adopt non-binding “sense of the House” resolutions, write press releases, and generally hone their grandstanding skills.
And, every once in a while, some actual piece of legislation may arise from a problem illuminated by the GAO. But that’s pretty rare. Politicians have short memories. And they are comforted by the knowledge that the public has less.
That enables them to play their Kabuki Theater roles with Oscar-winning skill – and then do absolutely nothing.
Which, barely having to read between the lines, is why David Walker is leaving his post.
“As comptroller general of the United States, there are real limitations on what I can do and say in connection with key public policy issues, especially issues that directly relate to GAO’s client — the Congress,” he said.
Walker has lived his professional life with clients – before coming to Washington, he headed a major office of a major international accounting firm. But I suspect his private sector clients did a far more conscientious job than our government of following his advice.
So he has chosen to leave his post at the GAO to become the president and CEO of the newly founded Peter G. Peterson Foundation.
“While I love both my job as comptroller general and the GAO,” he said, “I love my country more. And I believe that leading this foundation represents a unique opportunity and will be good for my country. My new position will provide me with the ability and resources to more aggressively address a range of current and emerging challenges facing our country, including advocating specific policy solutions and courses of action.”
In his new incarnation, Walker will oversee the billion-dollar endowment of Pete Peterson – former Commerce Secretary, the founder of the Blackstone group, The Concord Coalition, and legendary advocate for government fiscal responsibility.
“We are at a make-or-break point in American history,” Mr. Peterson said of his new foundation. “The entitlement monster is unfunded. We are dangerously dependent on foreign capital, our health care costs per capita are twice the level of the developed world, he said, and then asked, ” How do you educate a public that has become largely inert?”
It will be up to David Walker to try to find a coherent answer to this question. This is a gargantuan job. There are no short-term fixes, despite what our current presidential wanabees would have us believe.
George Bush and his Executive branch of government have failed abjectly in this mission. Congress has failed. Maybe a private foundation can do better. In his new job, I trust David Walker to continue to speak truth to power, to be as thoughtful, as incisive, and as fearless, as he has been at the GAO.
Even if he’s a Republican!
I usually raise my glass in gleeful celebration every time some senior member of the Bush Administration announces he’s leaving office “to spend more time with his family” or some other lame pro forma Washington excuse.
That usually means he/she is leaving in disgrace. Or yearning for the big bucks on the lecture circuit. Or on his/her way to the slammer.
But today is different.
Today, I lament the departure of one of the most courageous, effective and thoughtful public servants ever to serve the United States.
His name is David M. Walker. Most Americans have never heard of him. His title is Comtroller General of the United States. That’s Comptroller with an M. His job is to head the Government Accountability Office, or GAO. The GAO is the investigative agency of Congress.
Most Americans have never heard of the GAO either.
Pity. Because, in a government of incompetents, spinners, cronies, political hacks, wiretappers and torturers, David Walker’s GAO has been one of the very few bright lights in town.
And he’s a Republican! Imagine me celebrating a departing Republican!
But that’s where the similarity with Dubya ends.
Because David Walker is the kind of Republican who has become an endangered – almost extinct -- species in Bush’s Washington. He’s what the conductor of the Straight-Talk Express pretends to be and what he would like us to believe he is.
A word about the GAO. It used to be called the General Accounting Office. But its name was changed a few years ago to more accurately reflect what it actually does. Which is to hold the government accountable. Its head is by statute appointed by the president for a 15-year term. Which is how Walker got selected by Bill Clinton in 1998. My bet is that Dubya has deep regrets about that decision.
Because holding the government accountable is indeed what GAO has done under David Walker’s leadership. It has investigated government incompetence, waste, fraud and abuse in every Cabinet department and dozens of agencies. The range of subjects it has looked into last year alone is breathtaking. Contractor malfeasance in Iraq and Afghanistan. The failures of FEMA and other agencies to respond adequately to Katrina. The consistently criminal waste by the Pentagon. The failure of the Defense Department and the Veterans Administration to meet minimal standards for providing health care and benefits for our returning warriors. Runaway spending and the absence of even minimal systems to account for that spending. And much, much more.
On behalf of Congress, David Walker and his staff have spoken truth to power.
But, to its great credit, it has resisted being mesmerized by its power to expose. Every GAO report – and there and hundreds of them – tells those with the patience to read not only what’s wrong with a department or a program. It tells those who run these things what they need to do to fix their problems.
This has made the GAO the most agreed-with and most soon-forgotten agency in government. Departments and agencies the GAO has investigated rarely object to its corrective recommendations. In fact, most of them agree. But they rarely take action to implement those recommendations – or they make all the right noises and slow-walk GAO’s suggestions into oblivion.
As for GAO’s masters, the Congress, its members are perfectly delighted to use GAO’s findings to convene “oversight” hearings, adopt non-binding “sense of the House” resolutions, write press releases, and generally hone their grandstanding skills.
And, every once in a while, some actual piece of legislation may arise from a problem illuminated by the GAO. But that’s pretty rare. Politicians have short memories. And they are comforted by the knowledge that the public has less.
That enables them to play their Kabuki Theater roles with Oscar-winning skill – and then do absolutely nothing.
Which, barely having to read between the lines, is why David Walker is leaving his post.
“As comptroller general of the United States, there are real limitations on what I can do and say in connection with key public policy issues, especially issues that directly relate to GAO’s client — the Congress,” he said.
Walker has lived his professional life with clients – before coming to Washington, he headed a major office of a major international accounting firm. But I suspect his private sector clients did a far more conscientious job than our government of following his advice.
So he has chosen to leave his post at the GAO to become the president and CEO of the newly founded Peter G. Peterson Foundation.
“While I love both my job as comptroller general and the GAO,” he said, “I love my country more. And I believe that leading this foundation represents a unique opportunity and will be good for my country. My new position will provide me with the ability and resources to more aggressively address a range of current and emerging challenges facing our country, including advocating specific policy solutions and courses of action.”
In his new incarnation, Walker will oversee the billion-dollar endowment of Pete Peterson – former Commerce Secretary, the founder of the Blackstone group, The Concord Coalition, and legendary advocate for government fiscal responsibility.
“We are at a make-or-break point in American history,” Mr. Peterson said of his new foundation. “The entitlement monster is unfunded. We are dangerously dependent on foreign capital, our health care costs per capita are twice the level of the developed world, he said, and then asked, ” How do you educate a public that has become largely inert?”
It will be up to David Walker to try to find a coherent answer to this question. This is a gargantuan job. There are no short-term fixes, despite what our current presidential wanabees would have us believe.
George Bush and his Executive branch of government have failed abjectly in this mission. Congress has failed. Maybe a private foundation can do better. In his new job, I trust David Walker to continue to speak truth to power, to be as thoughtful, as incisive, and as fearless, as he has been at the GAO.
Even if he’s a Republican!
BACKDOORING THE CONSTITUTION
By William Fisher
First, it was Signing Statements, where the president signs laws passed by Congress and then declares he will interpret them any way he wishes. George W. Bush has issued more of these statements than all his predecessors combined. His trashing of the Detainee Treatment Act is arguably the best known example, but the range of his statements has covered issues from the existential to the trivial.
Simultaneously, he has simply violated previous laws and done whatever he says is “in the interest of national security.” Most widely publicized is his decision to ignore the Foreign Intelligence Surveillance Act of 1978 (FISA) to recruit telephone companies to intercept phone calls and emails to U.S. citizens without court orders. This despite that law’s requirement that the government show probable cause to the FISA court so it can issue a warrant. Makes you wonder whether the telecom industry’s army of lawyers ever passed Constitutional Law 101!
All of the above – and much more -- has been perpetrated upon the people to further Mr. Bush’s ever-expanding definition of presidential powers. Never mind that the Constitution constructs a government of three co-equal branches: executive, legislative and judiciary. The president has treated the legislative branch as if it was his special assistant. And he’s tried to do the same thing with the courts. But, to their credit, our judges – including many appointed by Bush himself -- have dealt this administration some stunning reversals.
The White House mantra is “If the president says it, it’s legal.” He is, after all, The Decider, no?
Now the Bushies have discovered a new tactic: the budget. They are attempting to use a kind of “backdoor signing statement” to thwart the will of Congress.
And the particular issue involved is Congress’ attempt to help lift the veil of secrecy that has shrouded our Government for the past seven years.
In August of last year, Congress passed the Open Government Act. The measure established a new Office of Government Information within the National Archives and Records Administration (NARA), an independent Federal agency charged with preserving and documenting government and historical records and increasing public access to those documents. The office was to be headed by an ombudsman to oversee disputes over the Freedom of Information Act (FOIA), avoid unnecessary litigation, and monitor the way Department of Justice (DOJ) implements that law.
President Bush signed the measure in December 2007. But when he submitted his $3.1 trillion budget proposal to Congress, no funds were included for the new program. Instead, the funding was hidden deep within the budget appendix under the Department of Commerce -- on page 239 of the 1,314-page document – and shifted the new office to the Department of Justice (DOJ).
The Chairman of the Senate Judiciary Committee, Vermont Democrat Sen. Patrick Leahy, one of the original cosponsors of the Open Government Act, said, "Such a move is not only contrary to the express intent of the Congress, but it is also contrary to the very purpose of this legislation — to ensure the timely and fair resolution of Americans’ FOIA requests."
The reason: The DOJ is the department charged with defending agencies accused of inappropriately withholding documents requested under the FOIA. This gives it a bias in favor of federal agencies, making it both judge and jury.
According to Sean Moulton, Director of Federal Information Policy for OMB Watch, a not-for-profit government watchdog group, “The president is definitely using his budget proposal to try and relocate the FOIA Ombudsman office (OGIS) to the DOJ. It is similar to signing statements in that it is the president's attempt to alter implementation of a law as it was laid out by congress.”
Leahy also noted DOJ's "abysmal record on FOIA compliance" over the past seven years as another reason the agency makes a poor choice for the location of OGIS.
The Freedom of Information Act, signed into law by President Lyndon B. Johnson in 1966, allows for the full or partial disclosure of previously unreleased information and documents controlled by the U.S. Government.
In 2001, Attorney General John Ashcroft issued a memo stating that the DOJ would defend in court any federal agency that withheld information on justifiable grounds. Previously, the standard was that the presumption was for disclosure. The new law restored the previous presumption.
Critics of the Bush Administration say they are not surprised at the president’s use of the budget to thwart the will of congress. They see the tactic as part of a pattern of restricting access to information. They cite the growth of public requests for information under the Freedom of Information over the last six years. In 2006, the total number of FOIA requests received in 2006 was 21,412,736, substantially larger than in 2005.
And, according to an audit conducted in January 2007 by the National Security Archive (NSA), an independent non-governmental research institute and library located at The George Washington University which collects and publishes declassified documents obtained through FOIA, agency backlogs remain significant. One FOIA request has now been pending for more than 20 years. The statutory response time is 20 business days.
The Bush Administration has refused to release information on a wide range of subjects, including the secret meetings of Vice President Dick Cheney’s energy policy task force. It has ordered federal Websites to remove much of the information they had posted that the Administration believed could be sensitive. It issued a controversial memo limiting access to records under the Presidential Records Act in November 2001, which allowed former Presidents and Vice-Presidents to prevent access to records. And it refused to disclose information on the Patriot Act and the names of those arrested after the attacks of September 11, 2001.
Many of those denied access to information have sued the government. Among the most widely publicized was the suit brought by a group of advocacy organizations including the American Civil Liberties Union (ACLU), the Center for Constitutional Rights (CCR), and others, to force the Department of Defense (DOD) to turn over documents relating to the harsh interrogation methods used against detainees at Guantanamo Bay, Cuba. The suit yielded hundreds of thousands of documents, including reports by agents of the Federal Bureau of Investigation (FBI) confirming such treatment.
While open-government advocates express varying levels of confidence in the proposed new Ombudsman’s importance, they agree on at least one thing: it is important that the law be implemented as written. As expressed by Steven Aftergood, head of the Government Secrecy Project for the Federation of American Scientists, “Any effort by the Administration to deviate from the terms of a statute should be opposed, no matter how trivial it might be, because the law is the law.”
So two questions need to be answered: Is the president listening? And, if not, does Congress have the spine to tell The Decider he’s not?
First, it was Signing Statements, where the president signs laws passed by Congress and then declares he will interpret them any way he wishes. George W. Bush has issued more of these statements than all his predecessors combined. His trashing of the Detainee Treatment Act is arguably the best known example, but the range of his statements has covered issues from the existential to the trivial.
Simultaneously, he has simply violated previous laws and done whatever he says is “in the interest of national security.” Most widely publicized is his decision to ignore the Foreign Intelligence Surveillance Act of 1978 (FISA) to recruit telephone companies to intercept phone calls and emails to U.S. citizens without court orders. This despite that law’s requirement that the government show probable cause to the FISA court so it can issue a warrant. Makes you wonder whether the telecom industry’s army of lawyers ever passed Constitutional Law 101!
All of the above – and much more -- has been perpetrated upon the people to further Mr. Bush’s ever-expanding definition of presidential powers. Never mind that the Constitution constructs a government of three co-equal branches: executive, legislative and judiciary. The president has treated the legislative branch as if it was his special assistant. And he’s tried to do the same thing with the courts. But, to their credit, our judges – including many appointed by Bush himself -- have dealt this administration some stunning reversals.
The White House mantra is “If the president says it, it’s legal.” He is, after all, The Decider, no?
Now the Bushies have discovered a new tactic: the budget. They are attempting to use a kind of “backdoor signing statement” to thwart the will of Congress.
And the particular issue involved is Congress’ attempt to help lift the veil of secrecy that has shrouded our Government for the past seven years.
In August of last year, Congress passed the Open Government Act. The measure established a new Office of Government Information within the National Archives and Records Administration (NARA), an independent Federal agency charged with preserving and documenting government and historical records and increasing public access to those documents. The office was to be headed by an ombudsman to oversee disputes over the Freedom of Information Act (FOIA), avoid unnecessary litigation, and monitor the way Department of Justice (DOJ) implements that law.
President Bush signed the measure in December 2007. But when he submitted his $3.1 trillion budget proposal to Congress, no funds were included for the new program. Instead, the funding was hidden deep within the budget appendix under the Department of Commerce -- on page 239 of the 1,314-page document – and shifted the new office to the Department of Justice (DOJ).
The Chairman of the Senate Judiciary Committee, Vermont Democrat Sen. Patrick Leahy, one of the original cosponsors of the Open Government Act, said, "Such a move is not only contrary to the express intent of the Congress, but it is also contrary to the very purpose of this legislation — to ensure the timely and fair resolution of Americans’ FOIA requests."
The reason: The DOJ is the department charged with defending agencies accused of inappropriately withholding documents requested under the FOIA. This gives it a bias in favor of federal agencies, making it both judge and jury.
According to Sean Moulton, Director of Federal Information Policy for OMB Watch, a not-for-profit government watchdog group, “The president is definitely using his budget proposal to try and relocate the FOIA Ombudsman office (OGIS) to the DOJ. It is similar to signing statements in that it is the president's attempt to alter implementation of a law as it was laid out by congress.”
Leahy also noted DOJ's "abysmal record on FOIA compliance" over the past seven years as another reason the agency makes a poor choice for the location of OGIS.
The Freedom of Information Act, signed into law by President Lyndon B. Johnson in 1966, allows for the full or partial disclosure of previously unreleased information and documents controlled by the U.S. Government.
In 2001, Attorney General John Ashcroft issued a memo stating that the DOJ would defend in court any federal agency that withheld information on justifiable grounds. Previously, the standard was that the presumption was for disclosure. The new law restored the previous presumption.
Critics of the Bush Administration say they are not surprised at the president’s use of the budget to thwart the will of congress. They see the tactic as part of a pattern of restricting access to information. They cite the growth of public requests for information under the Freedom of Information over the last six years. In 2006, the total number of FOIA requests received in 2006 was 21,412,736, substantially larger than in 2005.
And, according to an audit conducted in January 2007 by the National Security Archive (NSA), an independent non-governmental research institute and library located at The George Washington University which collects and publishes declassified documents obtained through FOIA, agency backlogs remain significant. One FOIA request has now been pending for more than 20 years. The statutory response time is 20 business days.
The Bush Administration has refused to release information on a wide range of subjects, including the secret meetings of Vice President Dick Cheney’s energy policy task force. It has ordered federal Websites to remove much of the information they had posted that the Administration believed could be sensitive. It issued a controversial memo limiting access to records under the Presidential Records Act in November 2001, which allowed former Presidents and Vice-Presidents to prevent access to records. And it refused to disclose information on the Patriot Act and the names of those arrested after the attacks of September 11, 2001.
Many of those denied access to information have sued the government. Among the most widely publicized was the suit brought by a group of advocacy organizations including the American Civil Liberties Union (ACLU), the Center for Constitutional Rights (CCR), and others, to force the Department of Defense (DOD) to turn over documents relating to the harsh interrogation methods used against detainees at Guantanamo Bay, Cuba. The suit yielded hundreds of thousands of documents, including reports by agents of the Federal Bureau of Investigation (FBI) confirming such treatment.
While open-government advocates express varying levels of confidence in the proposed new Ombudsman’s importance, they agree on at least one thing: it is important that the law be implemented as written. As expressed by Steven Aftergood, head of the Government Secrecy Project for the Federation of American Scientists, “Any effort by the Administration to deviate from the terms of a statute should be opposed, no matter how trivial it might be, because the law is the law.”
So two questions need to be answered: Is the president listening? And, if not, does Congress have the spine to tell The Decider he’s not?
Saturday, February 16, 2008
HEAR NO EVIL, SEE NO EVIL
By William Fisher
President George W. Bush’s critics are charging that he is attempting to use a “backdoor signing statement” to thwart the will of Congress to help lift the veil of secrecy that has shrouded the U.S. Government for the past seven years.
In August of last year, Congress passed the Open Government Act. The measure established a new Office of Government Information within the National Archives and Records Administration (NARA), an independent Federal agency charged with preserving and documenting government and historical records and increasing public access to those documents. The office was to be headed by an ombudsman to oversee disputes over the Freedom of Information Act (FOIA), avoid unnecessary litigation, and monitor the way Department of Justice (DOJ) implements that law.
President Bush signed the measure in December 2007. But when he submitted his $3.1 trillion budget proposal to Congress, no funds were included for the new program. Instead, the funding was hidden deep within the budget appendix under the Department of Commerce -- on page 239 of the 1,314-page document – and shifted the new office to the Department of Justice (DOJ).
The Chairman of the Senate Judiciary Committee, Vermont Democrat Sen. Patrick Leahy, one of the original cosponsors of the Open Government Act, said, "Such a move is not only contrary to the express intent of the Congress, but it is also contrary to the very purpose of this legislation — to ensure the timely and fair resolution of Americans’ FOIA requests."
The reason: The DOJ is the department charged with defending agencies accused of inappropriately withholding documents requested under the FOIA. This gives it a bias in favor of federal agencies, making it both judge and jury.
According to Sean Moulton, Director of Federal Information Policy for OMB Watch, a not-for-profit government watchdog group, “The president is definitely using his budget proposal to try and relocate the FOIA Ombudsman office (OGIS) to the DOJ. It is similar to signing statements in that it is the president's attempt to alter implementation of a law as it was laid out by congress.”
Leahy also noted DOJ's "abysmal record on FOIA compliance" over the past seven years as another reason the agency makes a poor choice for the location of OGIS.
The Freedom of Information Act, signed into law by President Lyndon B. Johnson in 1966, allows for the full or partial disclosure of previously unreleased information and documents controlled by the U.S. Government.
In 2001, Attorney General John Ashcroft issued a memo stating that the DOJ would defend in court any federal agency that withheld information on justifiable grounds. Previously, the standard was that the presumption was for disclosure. The new law restored the previous presumption.
Throughout his administration, President Bush has used so-called “signing statements,” rather than the budget, to modify acts of Congress he finds objectionable. Perhaps the best-known of these was issued after he signed the so-called McCain Amendment to the Detainee Treatment Act of 2005. That measure was intended to prohibit inhumane treatment of prisoners, including prisoners at Guantanamo Bay; and required military interrogations to be performed according to the Code of Military Justice. After signing the law, Bush issued a signing statement saying he would interpret the law “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief.”
Such statements have become a hallmark of the Bush Administration. From the inception of the Republic until 2000, presidents produced fewer than 600 signing. Since 2001, President Bush has objected on constitutional grounds to sections of more than 750 laws.
But critics of the Bush Administration say they are not surprised at the president’s use of the budget to thwart the will of congress. They see the tactic as part of a pattern of restricting access to information. They cite the growth of public requests for information under the Freedom of Information over the last six years. In 2006, the total number of FOIA requests received in 2006 was 21,412,736, substantially larger than in 2005.
And, according to an audit conducted in January 2007 by the National Security Archive (NSA), an independent non-governmental research institute and library located at The George Washington University which collects and publishes declassified documents obtained through FOIA, agency backlogs remain significant. One FOIA request has now been pending for more than 20 years. The statutory response time is 20 business days.
The Bush Administration has refused to release information on a wide range of subjects, including the secret meetings of Vice President Dick Cheney’s energy policy task force. It has ordered federal Websites to remove much of the information they had posted that the Administration believed could be sensitive. It issued a controversial memo limiting access to records under the Presidential Records Act in November 2001, which allowed former Presidents and Vice-Presidents to prevent access to records. And it refused to disclose information on the Patriot Act and the names of those arrested after the attacks of September 11, 2001.
Many of those denied access to information have sued the government. Among the most widely publicized was the suit brought by a group of advocacy organizations including the American Civil Liberties Union (ACLU), the Center for Constitutional Rights (CCR), and others, to force the Department of Defense (DOD) to turn over documents relating to the harsh interrogation methods used against detainees at Guantanamo Bay, Cuba. The suit yielded hundreds of thousands of documents, including reports by agents of the Federal Bureau of Investigation (FBI) confirming such treatment.
Open-government advocates express varying levels of confidence in the proposed new Ombudsman’s importance. Steven Aftergood, head of the Government Secrecy Project for the Federation of American Scientists, told us he doesn’t have “high expectations of the ombudsman's office, regardless of where it is located.” He asked, “Is an official from the National Archives really going to intervene on my behalf when the CIA stubbornly refuses to process one of my requests? Would it make a difference if he or she did? I tend to doubt it.”
OMB Watch’s Moulton takes a different view. He told us, “I firmly believe Congress got it right when they assigned the job to the National Archives, which has better objectivity on FOIA disputes and greater experience in managing the disclosure of documents. Justice's traditional position of defending agencies against FOIA lawsuits, means a bias to side with agencies in disputes likely exists.”
“The office's direct clout with agencies will derive from the level of support the Administration provides. This will be tied directly to how high a priority the next administration places on disclosure and transparency,” he added.
But both agree that “it is important that the law be implemented as written. Any effort by the Administration to deviate from the terms of a statute should be opposed, no matter how trivial it might be, because the law is the law.”
And both point out that the president’s budget action “is not a done deal.” Aftergood says, “Congress can appropriate funds for the ombudsman to be expended solely at the Archives, and can prohibit their use by Justice.”
OMB Watch’s Moulton agrees. He told us, “Congress can, and in many ways always does, deviate from the President's proposed budget. The question is whether congress will allocate money to the National Archives for the office even though the President didn't request it.”
President George W. Bush’s critics are charging that he is attempting to use a “backdoor signing statement” to thwart the will of Congress to help lift the veil of secrecy that has shrouded the U.S. Government for the past seven years.
In August of last year, Congress passed the Open Government Act. The measure established a new Office of Government Information within the National Archives and Records Administration (NARA), an independent Federal agency charged with preserving and documenting government and historical records and increasing public access to those documents. The office was to be headed by an ombudsman to oversee disputes over the Freedom of Information Act (FOIA), avoid unnecessary litigation, and monitor the way Department of Justice (DOJ) implements that law.
President Bush signed the measure in December 2007. But when he submitted his $3.1 trillion budget proposal to Congress, no funds were included for the new program. Instead, the funding was hidden deep within the budget appendix under the Department of Commerce -- on page 239 of the 1,314-page document – and shifted the new office to the Department of Justice (DOJ).
The Chairman of the Senate Judiciary Committee, Vermont Democrat Sen. Patrick Leahy, one of the original cosponsors of the Open Government Act, said, "Such a move is not only contrary to the express intent of the Congress, but it is also contrary to the very purpose of this legislation — to ensure the timely and fair resolution of Americans’ FOIA requests."
The reason: The DOJ is the department charged with defending agencies accused of inappropriately withholding documents requested under the FOIA. This gives it a bias in favor of federal agencies, making it both judge and jury.
According to Sean Moulton, Director of Federal Information Policy for OMB Watch, a not-for-profit government watchdog group, “The president is definitely using his budget proposal to try and relocate the FOIA Ombudsman office (OGIS) to the DOJ. It is similar to signing statements in that it is the president's attempt to alter implementation of a law as it was laid out by congress.”
Leahy also noted DOJ's "abysmal record on FOIA compliance" over the past seven years as another reason the agency makes a poor choice for the location of OGIS.
The Freedom of Information Act, signed into law by President Lyndon B. Johnson in 1966, allows for the full or partial disclosure of previously unreleased information and documents controlled by the U.S. Government.
In 2001, Attorney General John Ashcroft issued a memo stating that the DOJ would defend in court any federal agency that withheld information on justifiable grounds. Previously, the standard was that the presumption was for disclosure. The new law restored the previous presumption.
Throughout his administration, President Bush has used so-called “signing statements,” rather than the budget, to modify acts of Congress he finds objectionable. Perhaps the best-known of these was issued after he signed the so-called McCain Amendment to the Detainee Treatment Act of 2005. That measure was intended to prohibit inhumane treatment of prisoners, including prisoners at Guantanamo Bay; and required military interrogations to be performed according to the Code of Military Justice. After signing the law, Bush issued a signing statement saying he would interpret the law “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief.”
Such statements have become a hallmark of the Bush Administration. From the inception of the Republic until 2000, presidents produced fewer than 600 signing. Since 2001, President Bush has objected on constitutional grounds to sections of more than 750 laws.
But critics of the Bush Administration say they are not surprised at the president’s use of the budget to thwart the will of congress. They see the tactic as part of a pattern of restricting access to information. They cite the growth of public requests for information under the Freedom of Information over the last six years. In 2006, the total number of FOIA requests received in 2006 was 21,412,736, substantially larger than in 2005.
And, according to an audit conducted in January 2007 by the National Security Archive (NSA), an independent non-governmental research institute and library located at The George Washington University which collects and publishes declassified documents obtained through FOIA, agency backlogs remain significant. One FOIA request has now been pending for more than 20 years. The statutory response time is 20 business days.
The Bush Administration has refused to release information on a wide range of subjects, including the secret meetings of Vice President Dick Cheney’s energy policy task force. It has ordered federal Websites to remove much of the information they had posted that the Administration believed could be sensitive. It issued a controversial memo limiting access to records under the Presidential Records Act in November 2001, which allowed former Presidents and Vice-Presidents to prevent access to records. And it refused to disclose information on the Patriot Act and the names of those arrested after the attacks of September 11, 2001.
Many of those denied access to information have sued the government. Among the most widely publicized was the suit brought by a group of advocacy organizations including the American Civil Liberties Union (ACLU), the Center for Constitutional Rights (CCR), and others, to force the Department of Defense (DOD) to turn over documents relating to the harsh interrogation methods used against detainees at Guantanamo Bay, Cuba. The suit yielded hundreds of thousands of documents, including reports by agents of the Federal Bureau of Investigation (FBI) confirming such treatment.
Open-government advocates express varying levels of confidence in the proposed new Ombudsman’s importance. Steven Aftergood, head of the Government Secrecy Project for the Federation of American Scientists, told us he doesn’t have “high expectations of the ombudsman's office, regardless of where it is located.” He asked, “Is an official from the National Archives really going to intervene on my behalf when the CIA stubbornly refuses to process one of my requests? Would it make a difference if he or she did? I tend to doubt it.”
OMB Watch’s Moulton takes a different view. He told us, “I firmly believe Congress got it right when they assigned the job to the National Archives, which has better objectivity on FOIA disputes and greater experience in managing the disclosure of documents. Justice's traditional position of defending agencies against FOIA lawsuits, means a bias to side with agencies in disputes likely exists.”
“The office's direct clout with agencies will derive from the level of support the Administration provides. This will be tied directly to how high a priority the next administration places on disclosure and transparency,” he added.
But both agree that “it is important that the law be implemented as written. Any effort by the Administration to deviate from the terms of a statute should be opposed, no matter how trivial it might be, because the law is the law.”
And both point out that the president’s budget action “is not a done deal.” Aftergood says, “Congress can appropriate funds for the ombudsman to be expended solely at the Archives, and can prohibit their use by Justice.”
OMB Watch’s Moulton agrees. He told us, “Congress can, and in many ways always does, deviate from the President's proposed budget. The question is whether congress will allocate money to the National Archives for the office even though the President didn't request it.”
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