By William Fisher
In January 2006 – on the heels of reports of widespread incompetence, injustice, and political cronyism among the judges who decide the fate of thousands of immigrants seeking asylum in the United States – the then Attorney General, Alberto Gonzales, announced a sweeping review of the entire asylum process. Six months later, Gonzales mandated a series of new guidelines and initiatives to improve the system and said he was “reassured of the talent and professionalism” of the judges and the fairness of the system.
But today, more than two years later, immigration law experts and human rights advocates charge that there has been little real change. They say that people forced to flee to the U.S. to escape torture and political or religious persecution continue to face a deeply flawed, ideologically-driven, and bureaucratically daunting process that is more likely than not to order them back to the countries from which they fled.
Prof. Philip Schrag, an immigration law expert and professor at the Georgetown University law school, told IPS, “The attorney general declared that the objective of improving the process had been met, but stated no specifics, and I am not aware that anything has changed in practice.” Schrag is one the three authors of “Refugee Roulette,” a 2007 landmark study of the shortcomings of the U.S. asylum system.
Among Gonzales’ instructions: Periodic performance evaluations to review the work of each immigration judge and member of the Board of Immigration Appeals; an immigration law exam to ensure that all immigration judges are proficient in the key principles of immigration law; and increased funding to hire more immigration judges, staff attorneys and judicial law clerks; and technological improvements to increase the Immigration Courts’ ability to record, transcribe, and interpret court proceedings.
Given America’s current anti-immigrant environment, the asylum issue is seen by elected office-holders and government officials as a political third rail that receives scant attention from the media.
The issue flared up again briefly last spring. In connection with the firestorm accompanying revelations of the DOJ’s firing of eight U.S. Attorneys, a Bush appointee, former DOJ aide Monica Goodling, told the House of Representatives Judiciary Committee that she "crossed the line" in considering political affiliation for several categories of career applicants at the DOJ, including immigration judges.
But even before Goodling’s explosive testimony, Bush-appointed DOJ lawyers said they had considered political affiliation in screening applicants for immigration court judgeships for several years – until the department’s career lawyers objected. That could mean that the DOJ may have violated civil service laws, which prohibit political considerations in hiring.
In the two years preceding Goodling’s testimony, Gonzales appointed 49 of 226 current judges in the nation’s 54 immigration courts – many without any background in immigration law. They included a former treasurer of the Louisiana Republican Party, who was a legal advisor to the Bush Florida recount team after the 2000 presidential election, a former GOP congressional aide who had tracked voter fraud issues for the DOJ, and a Texan appointed by then-Gov. George W. Bush to a seat on the state library commission. Many others among the nation's more than 200 immigration judges lack immigration experience.
The result – coupled with what has been termed a Byzantine adjudication process – is that asylum seekers face huge disparities between courts and even among judges in the same courts. Prof. Schrag’s study found that their fate is being influenced less by the merits of their claims and more by such factors as the location of the court and the gender and professional background of judges.
While immigration officers at Citizenship and Immigration Services, part of the Department of Homeland Security (DHS) have the authority to grant asylum, the majority of asylum cases are referred to and decided by the immigration judges.
If an asylum-seeker’s claim is rejected by the immigration judges, it can be appealed to the Board of Immigration Appeals, whose members are also appointed by the Justice Department. If the claimant fails there, he or she can appeal their case to a U.S. federal appeals court. These appeals stand a far higher chance of being accepted if the claimant has a lawyer – but most asylum-seekers don’t have lawyers.
Federal judges have been among the harshest critics of immigration judges. For example, last year the Seventh Circuit Court of Appeals delivered another in a series of stinging rebukes to the immigration courts and Board of Immigration Appeals (BIA). They ordered a review of a case of a Lebanese asylum seeker and called for the DOJ to allocate more resources to ensure that immigrants receive fair review of their cases.
The asylum-seeker feared he would be persecuted if forced to return to his home country. His case was first denied in immigration court in 2005. After fighting broke out in Lebanon between Israel and Hezbollah-blocked insurgents in 2006, he attempted to reopen the case based on changed country conditions. The BIA denied his motion to reopen, declining to give due weight to the changed circumstances.
A Seventh Circuit judge wrote, "The petitioner's evidence concerned dramatic, portentous events that had occurred after the administrative record was closed, and so could not have been discovered before the July 2005 hearing." The judge said, “The Department of Justice cannot be permitted to defeat judicial review by refusing to staff the Immigration Court and the Board of Immigration Appeals with enough judicial officers to provide reasoned decisions."
Last year alone, the Seventh Circuit has overturned two other BIA decisions on grounds that the board failed to give reasoned consideration to post-hearing evidence.
The BIA’s decision-making process is among Prof. Schrag’s principal concerns. He told IPS, “The BIA has moved steadily away from summary affirmances, but they have been replaced mainly by one-judge brief decisions, a conclusory paragraph rather than a few pages, so in many cases they don’t really deal with the losing party’s arguments.”
The “Refugee Roulette” study analyzed 140,000 decisions by immigration judges over four years, including those cases from the 15 countries that have produced the most asylum seekers in recent years, among them China, Haiti, Colombia, Albania and Russia.
The study found vast differences in the handling of claims with generally comparable factual circumstances. In one of the starker examples cited, Colombians had an 88 percent chance of winning asylum from one judge in the Miami immigration court and a 5 percent chance from another judge in the same court. It also found that someone who has fled China in fear of persecution and asks for asylum in immigration court in Orlando, Fla., has an excellent — 76 percent — chance of success, while the same refugee would have a 7 percent chance in Atlanta. Similarly, a Haitian seeking refuge from political violence is almost twice as likely to succeed in New York as in Miami.
The study also found wide variations in decisions based on the judge’s gender and by judges in the same location. For example, one male immigration judge currently on the Miami court granted only three percent of the asylum cases he heard -- the second-toughest judge in the nation on asylum issues. A female judge, who hears cases at the Krome North detention center in Miami, granted 59 percent of the asylum claims she considered, placing her in the top 15 percent of judges approving such claims.
According to Prof. Schrag, “It is very disturbing that these decisions can mean life or death, and they seem to a large extent to be the result of a clerk’s random assignment of a case to a particular judge.”
This ball is now squarely in the court of Michael Mukasey, our newest AG. We wonder if he’ll defy the third rail and actually get something done.
Watch this space.
Sunday, March 02, 2008
Saturday, March 01, 2008
UNSPINNING THE PRESIDENT
By William Fisher
At his news conference earlier this week, President Bush was in his relentless mode in insisting that the failures of Congress to pass a new domestic surveillance law put us all in dire peril.
“There Will Be Blood,” he seemed to be warning. The critical intelligence we’ve already missed while our lawmakers bicker will never come back. We just won’t know if another 9/11 is being hatched somewhere in the world.
Be afraid. Be very afraid. That was Mr. Bush’s message.
But, in case you’ve only been reading the mainstream press, you might not know that there are many veteran counter-terrorism experts and legal scholars who aren’t buying Dubya’s rantings.
Four of them recently wrote to Admiral Mike McConnell, the Director of National Intelligence, to assert that “the intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication.” Charging that the government’s assertions to the contrary “have distorted rather than enhanced” public understanding, their letter says, “The sunset of the Protect America Act (PAA) does not put America at greater risk. Despite claims that have been made, surveillance currently occurring under the PAA is authorized for up to a year. New surveillance requests can be filed through current FISA law.”
The letter was signed by two former officials at the National Security Council (NSC), Rand Beers, who was Senior Director for Combating Terrorism, and Richard A. Clarke, who served as head of counterterrorism; Lt. Gen. Don Kerrick, former Deputy National Security Advisor; and Susan Spaulding, former assistant general counsel at the Central Intelligence Agency (CIA).
As we all know, this latest controversy was triggered by disagreements focusing largely on a single provision of the PAA. Two weeks ago, a bipartisan coalition in the Senate overwhelmingly passed an extension of the PAA, which was due to expire unless renewed. The bill provides retroactive immunity from lawsuits to telecom companies that wiretapped U.S. phone and computer lines at the government's request after the Sept. 11, 2001 terrorist attacks, without court permission.
A similar bill passed by the House of Representatives but the House version did not provide such immunity.
Congress left Washington for their President’s Day recess without agreeing on a single bill the president could sign – and Bush said he would veto a three-week extension of the current law. The result was the expiration of the PAA last Saturday.
Before and since that time, President Bush has been lobbying for Congressional action granting retroactive immunity. He has warned that terrorists are planning new attacks that could make the Sept. 11 attacks "pale by comparison" and that failure to pass the Protect America Act could have dire consequences. Democrats say they are trying to balance concerns about civil liberties against the government's spy powers.
Bush and DNI McConnell have claimed that the telecom companies were acting legally and acting patriotically at the request of their government, but noted that the companies are already the targets of class action lawsuits that are causing them to be less cooperative.
Bush has lobbied hard to persuade Congress to pass legislation immunizing the telecom companies. He said, "To put it bluntly, if the enemy is calling into America, we really need to know what they're saying, and we need to know what they're thinking, and we need to know who they're talking to."
He added, "Our government told them that their participation was necessary. And it was, and it still is, and that what we had asked them to do was legal. And now they're getting sued for billions of dollars. And it's not fair."
The Democrats have responded by accusing Bush of resorting to "scare tactics and political games."
The former national security officials who wrote to DNI McConnnell said, “It is wrong to make this one issue an immovable impediment to Congress passing strong legislation to protect the American people.”
They took issue with President Bush’s claim that, as a result of PAA not being extended by Congress, "the Attorney General and the Director of National Intelligence will be stripped of their power to authorize new surveillance against terrorist threats abroad."
They urged the President to abandon his claims that Congress’ action makes the U.S. vulnerable to terrorist attacks. “It is the duty of the Executive Branch to inform this process. America's security cannot be captive to partisan bickering and distortions,” they wrote.
They added, “It remains unclear - in light of the law - how the President believes surveillance capabilities have changed.”
Their letter claimed that “The intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication. As in the past, applications for new targets that are not already authorized by the broad orders already in place under the PAA can be filed through the FISA courts, including the ability to seek warrants up to 72 hours retroactively.”
Passed by Congress in 1978, FISA, the Foreign Intelligence Surveillance Act, requires the government to obtain a warrant from a special court established under the law before it could conduct wiretaps or intercept the communications of Americans. The law FISA has been modernized nearly a dozen times since the terrorist attacks of September 11, 2001, to keep abreast new communications technologies.
Many legal experts and civil liberties advocates disagree with President Bush’s claims that Congress’ failure to extend the PAA has increased America’s vulnerability to terrorist attacks.
Typical is Prof. Peter Shane of the University of Ohio law school, told IPS, “Bush's position is senseless.”
He said, “First, Congress has been willing to extend the PAA on a short-term basis in its current form. So any lapse in the availability of PAA authority cannot be attributed to Congress. Second, retroactive immunity has nothing to do with the authority of the executive branch going forward. It is simply an effort to make sure that lawsuits are not used to unearth the full scope of possible Bush Administration lawlessness in conducting its so-called terrorist surveillance program.”
His view was echoed by Clayton Northouse, Information Policy Analyst for OMB Watch, a Washington-based open-government research group. Northouse told IPS, “Since day one, the administration has used the guise of national security to unilaterally increase the power of the Executive. This exposes the administration’s position as a blatant power grab. The letter from senior intelligence officials shows us that the Bush administration isn’t upset because the country is weakened by the House’s decision not to reauthorize PAA and grant telecom immunity. Rather, the administration is upset because they may not be able to avoid the oversight and approval of the legislative and judicial branches.”
And by Georgetown law professor David Cole, one of the nation’s preeminent Constitutional scholars. He told us: “The Bush administration has only itself to blame if there were any national security consequences from the sunsetting of the Protect America Act, as the Democrats were willing to extend the sunset until a workable compromise on permanent legislation could be worked out. If the Bush administration's national security claims are to be believed, then, it is the administration that has decided to play a game of chicken with our security. In fact, all taps authorized under the PAA will continue in place, and FISA permits the administration to place new taps on any newly identified terrorist, so there is no national security risk presented.”
But how about the poor telecom companies? Well, the question we put to Prof. Cole was this: “Wouldn't you think someone in the army of telecom lawyers understood that what the president was asking them to do was illegal and in violation of the FISA statute?”
His answer couldn’t have been more Gary Cooperish:
“Yup.”
At his news conference earlier this week, President Bush was in his relentless mode in insisting that the failures of Congress to pass a new domestic surveillance law put us all in dire peril.
“There Will Be Blood,” he seemed to be warning. The critical intelligence we’ve already missed while our lawmakers bicker will never come back. We just won’t know if another 9/11 is being hatched somewhere in the world.
Be afraid. Be very afraid. That was Mr. Bush’s message.
But, in case you’ve only been reading the mainstream press, you might not know that there are many veteran counter-terrorism experts and legal scholars who aren’t buying Dubya’s rantings.
Four of them recently wrote to Admiral Mike McConnell, the Director of National Intelligence, to assert that “the intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication.” Charging that the government’s assertions to the contrary “have distorted rather than enhanced” public understanding, their letter says, “The sunset of the Protect America Act (PAA) does not put America at greater risk. Despite claims that have been made, surveillance currently occurring under the PAA is authorized for up to a year. New surveillance requests can be filed through current FISA law.”
The letter was signed by two former officials at the National Security Council (NSC), Rand Beers, who was Senior Director for Combating Terrorism, and Richard A. Clarke, who served as head of counterterrorism; Lt. Gen. Don Kerrick, former Deputy National Security Advisor; and Susan Spaulding, former assistant general counsel at the Central Intelligence Agency (CIA).
As we all know, this latest controversy was triggered by disagreements focusing largely on a single provision of the PAA. Two weeks ago, a bipartisan coalition in the Senate overwhelmingly passed an extension of the PAA, which was due to expire unless renewed. The bill provides retroactive immunity from lawsuits to telecom companies that wiretapped U.S. phone and computer lines at the government's request after the Sept. 11, 2001 terrorist attacks, without court permission.
A similar bill passed by the House of Representatives but the House version did not provide such immunity.
Congress left Washington for their President’s Day recess without agreeing on a single bill the president could sign – and Bush said he would veto a three-week extension of the current law. The result was the expiration of the PAA last Saturday.
Before and since that time, President Bush has been lobbying for Congressional action granting retroactive immunity. He has warned that terrorists are planning new attacks that could make the Sept. 11 attacks "pale by comparison" and that failure to pass the Protect America Act could have dire consequences. Democrats say they are trying to balance concerns about civil liberties against the government's spy powers.
Bush and DNI McConnell have claimed that the telecom companies were acting legally and acting patriotically at the request of their government, but noted that the companies are already the targets of class action lawsuits that are causing them to be less cooperative.
Bush has lobbied hard to persuade Congress to pass legislation immunizing the telecom companies. He said, "To put it bluntly, if the enemy is calling into America, we really need to know what they're saying, and we need to know what they're thinking, and we need to know who they're talking to."
He added, "Our government told them that their participation was necessary. And it was, and it still is, and that what we had asked them to do was legal. And now they're getting sued for billions of dollars. And it's not fair."
The Democrats have responded by accusing Bush of resorting to "scare tactics and political games."
The former national security officials who wrote to DNI McConnnell said, “It is wrong to make this one issue an immovable impediment to Congress passing strong legislation to protect the American people.”
They took issue with President Bush’s claim that, as a result of PAA not being extended by Congress, "the Attorney General and the Director of National Intelligence will be stripped of their power to authorize new surveillance against terrorist threats abroad."
They urged the President to abandon his claims that Congress’ action makes the U.S. vulnerable to terrorist attacks. “It is the duty of the Executive Branch to inform this process. America's security cannot be captive to partisan bickering and distortions,” they wrote.
They added, “It remains unclear - in light of the law - how the President believes surveillance capabilities have changed.”
Their letter claimed that “The intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication. As in the past, applications for new targets that are not already authorized by the broad orders already in place under the PAA can be filed through the FISA courts, including the ability to seek warrants up to 72 hours retroactively.”
Passed by Congress in 1978, FISA, the Foreign Intelligence Surveillance Act, requires the government to obtain a warrant from a special court established under the law before it could conduct wiretaps or intercept the communications of Americans. The law FISA has been modernized nearly a dozen times since the terrorist attacks of September 11, 2001, to keep abreast new communications technologies.
Many legal experts and civil liberties advocates disagree with President Bush’s claims that Congress’ failure to extend the PAA has increased America’s vulnerability to terrorist attacks.
Typical is Prof. Peter Shane of the University of Ohio law school, told IPS, “Bush's position is senseless.”
He said, “First, Congress has been willing to extend the PAA on a short-term basis in its current form. So any lapse in the availability of PAA authority cannot be attributed to Congress. Second, retroactive immunity has nothing to do with the authority of the executive branch going forward. It is simply an effort to make sure that lawsuits are not used to unearth the full scope of possible Bush Administration lawlessness in conducting its so-called terrorist surveillance program.”
His view was echoed by Clayton Northouse, Information Policy Analyst for OMB Watch, a Washington-based open-government research group. Northouse told IPS, “Since day one, the administration has used the guise of national security to unilaterally increase the power of the Executive. This exposes the administration’s position as a blatant power grab. The letter from senior intelligence officials shows us that the Bush administration isn’t upset because the country is weakened by the House’s decision not to reauthorize PAA and grant telecom immunity. Rather, the administration is upset because they may not be able to avoid the oversight and approval of the legislative and judicial branches.”
And by Georgetown law professor David Cole, one of the nation’s preeminent Constitutional scholars. He told us: “The Bush administration has only itself to blame if there were any national security consequences from the sunsetting of the Protect America Act, as the Democrats were willing to extend the sunset until a workable compromise on permanent legislation could be worked out. If the Bush administration's national security claims are to be believed, then, it is the administration that has decided to play a game of chicken with our security. In fact, all taps authorized under the PAA will continue in place, and FISA permits the administration to place new taps on any newly identified terrorist, so there is no national security risk presented.”
But how about the poor telecom companies? Well, the question we put to Prof. Cole was this: “Wouldn't you think someone in the army of telecom lawyers understood that what the president was asking them to do was illegal and in violation of the FISA statute?”
His answer couldn’t have been more Gary Cooperish:
“Yup.”
Wednesday, February 27, 2008
ARE WE SAFER NOW? OR NOT?
By William Fisher
Former senior level intelligence officials are disputing claims by the Bush Administration that the failure of Congress to pass a new foreign surveillance law is jeopardizing America’s national security.
In a letter to Admiral Mike McConnell, the Director of National Intelligence, the officials say “the intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication.” Charging that the government’s assertions to the contrary “have distorted rather than enhanced” public understanding, their letter says, “The sunset of the Protect America Act (PAA) does not put America at greater risk. Despite claims that have been made, surveillance currently occurring under the PAA is authorized for up to a year. New surveillance requests can be filed through current FISA law.”
The letter was signed by two former officials at the National Security Council (NSC), Rand Beers, who was Senior Director for Combating Terrorism, and Richard A. Clarke, who served as head of counterterrorism; Lt. Gen. Don Kerrick, former Deputy National Security Advisor; and Susan Spaulding, former assistant general counsel at the Central Intelligence Agency (CIA).
The controversy has been triggered by disagreements focusing largely on a single provision of the PAA. Two weeks ago, a bipartisan coalition in the Senate overwhelmingly passed an extension of the PAA, which was due to expire unless renewed. The bill provides retroactive immunity from lawsuits to telecom companies that wiretapped U.S. phone and computer lines at the government's request after the Sept. 11, 2001 terrorist attacks, without court permission.
A similar bill passed by the House of Representatives but the House version did not provide such immunity.
Congress left Washington for their President’s Day recess without agreeing on a single bill the president could sign – and Bush said he would veto a three-week extension of the current law. The result was the expiration of the PAA last Saturday.
Before and since that time, President Bush has been lobbying for Congressional action granting retroactive immunity. He has warned that terrorists are planning new attacks that could make the Sept. 11 attacks "pale by comparison" and that failure to pass the Protect America Act could have dire consequences. Democrats say they are trying to balance concerns about civil liberties against the government's spy powers.
Bush and DNI McConnell have claimed that the telecom companies were acting legally and acting patriotically at the request of their government, but noted that the companies are already the targets of class action lawsuits that are causing them to be less cooperative.
Bush has lobbied hard to persuade Congress to pass legislation immunizing the telecom companies. He said, "To put it bluntly, if the enemy is calling into America, we really need to know what they're saying, and we need to know what they're thinking, and we need to know who they're talking to."
He added, "Our government told them that their participation was necessary. And it was, and it still is, and that what we had asked them to do was legal. And now they're getting sued for billions of dollars. And it's not fair."
The Democrats have responded by accusing Bush of resorting to "scare tactics and political games."
The former national security officials who wrote to DNI McConnnell said, “It is wrong to make this one issue an immovable impediment to Congress passing strong legislation to protect the American people.”
They took issue with President Bush’s claim that, as a result of PAA not being extended by Congress, "the Attorney General and the Director of National Intelligence will be stripped of their power to authorize new surveillance against terrorist threats abroad."
They urged the President to abandon his claims that Congress’ action makes the U.S. vulnerable to terrorist attacks. “It is the duty of the Executive Branch to inform this process. America's security cannot be captive to partisan bickering and distortions,” they wrote.
They added, “It remains unclear - in light of the law - how the President believes surveillance capabilities have changed.”
Their letter claimed that “The intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication. As in the past, applications for new targets that are not already authorized by the broad orders already in place under the PAA can be filed through the FISA courts, including the ability to seek warrants up to 72 hours retroactively.”
Passed by Congress in 1978, FISA, the Foreign Intelligence Surveillance Act, requires the government to obtain a warrant from a special court established under the law before it could conduct wiretaps or intercept the communications of Americans. The law FISA has been modernized nearly a dozen times since the terrorist attacks of September 11, 2001, to keep abreast new communications technologies.
Many legal experts and civil liberties advocates disagree with President Bush’s claims that Congress’ failure to extend the PAA has increased America’s vulnerability to terrorist attacks.
Typical is Prof. Peter Shane of the University of Ohio law school, who told us, “Bush's position is senseless.”
He said, “First, Congress has been willing to extend the PAA on a short-term basis in its current form. So any lapse in the availability of PAA authority cannot be attributed to Congress. Second, retroactive immunity has nothing to do with the authority of the executive branch going forward. It is simply an effort to make sure that lawsuits are not used to unearth the full scope of possible Bush Administration lawlessness in conducting its so-called terrorist surveillance program.”
His view was echoed by Clayton Northouse, Information Policy Analyst for OMB Watch, a Washington-based open-government research group. Northouse told us, “Since day one, the administration has used the guise of national security to unilaterally increase the power of the Executive. This exposes the administration’s position as a blatant power grab. The letter from senior intelligence officials shows us that the Bush administration isn’t upset because the country is weakened by the House’s decision not to reauthorize PAA and grant telecom immunity. Rather, the administration is upset because they may not be able to avoid the oversight and approval of the legislative and judicial branches.”
Former senior level intelligence officials are disputing claims by the Bush Administration that the failure of Congress to pass a new foreign surveillance law is jeopardizing America’s national security.
In a letter to Admiral Mike McConnell, the Director of National Intelligence, the officials say “the intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication.” Charging that the government’s assertions to the contrary “have distorted rather than enhanced” public understanding, their letter says, “The sunset of the Protect America Act (PAA) does not put America at greater risk. Despite claims that have been made, surveillance currently occurring under the PAA is authorized for up to a year. New surveillance requests can be filed through current FISA law.”
The letter was signed by two former officials at the National Security Council (NSC), Rand Beers, who was Senior Director for Combating Terrorism, and Richard A. Clarke, who served as head of counterterrorism; Lt. Gen. Don Kerrick, former Deputy National Security Advisor; and Susan Spaulding, former assistant general counsel at the Central Intelligence Agency (CIA).
The controversy has been triggered by disagreements focusing largely on a single provision of the PAA. Two weeks ago, a bipartisan coalition in the Senate overwhelmingly passed an extension of the PAA, which was due to expire unless renewed. The bill provides retroactive immunity from lawsuits to telecom companies that wiretapped U.S. phone and computer lines at the government's request after the Sept. 11, 2001 terrorist attacks, without court permission.
A similar bill passed by the House of Representatives but the House version did not provide such immunity.
Congress left Washington for their President’s Day recess without agreeing on a single bill the president could sign – and Bush said he would veto a three-week extension of the current law. The result was the expiration of the PAA last Saturday.
Before and since that time, President Bush has been lobbying for Congressional action granting retroactive immunity. He has warned that terrorists are planning new attacks that could make the Sept. 11 attacks "pale by comparison" and that failure to pass the Protect America Act could have dire consequences. Democrats say they are trying to balance concerns about civil liberties against the government's spy powers.
Bush and DNI McConnell have claimed that the telecom companies were acting legally and acting patriotically at the request of their government, but noted that the companies are already the targets of class action lawsuits that are causing them to be less cooperative.
Bush has lobbied hard to persuade Congress to pass legislation immunizing the telecom companies. He said, "To put it bluntly, if the enemy is calling into America, we really need to know what they're saying, and we need to know what they're thinking, and we need to know who they're talking to."
He added, "Our government told them that their participation was necessary. And it was, and it still is, and that what we had asked them to do was legal. And now they're getting sued for billions of dollars. And it's not fair."
The Democrats have responded by accusing Bush of resorting to "scare tactics and political games."
The former national security officials who wrote to DNI McConnnell said, “It is wrong to make this one issue an immovable impediment to Congress passing strong legislation to protect the American people.”
They took issue with President Bush’s claim that, as a result of PAA not being extended by Congress, "the Attorney General and the Director of National Intelligence will be stripped of their power to authorize new surveillance against terrorist threats abroad."
They urged the President to abandon his claims that Congress’ action makes the U.S. vulnerable to terrorist attacks. “It is the duty of the Executive Branch to inform this process. America's security cannot be captive to partisan bickering and distortions,” they wrote.
They added, “It remains unclear - in light of the law - how the President believes surveillance capabilities have changed.”
Their letter claimed that “The intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication. As in the past, applications for new targets that are not already authorized by the broad orders already in place under the PAA can be filed through the FISA courts, including the ability to seek warrants up to 72 hours retroactively.”
Passed by Congress in 1978, FISA, the Foreign Intelligence Surveillance Act, requires the government to obtain a warrant from a special court established under the law before it could conduct wiretaps or intercept the communications of Americans. The law FISA has been modernized nearly a dozen times since the terrorist attacks of September 11, 2001, to keep abreast new communications technologies.
Many legal experts and civil liberties advocates disagree with President Bush’s claims that Congress’ failure to extend the PAA has increased America’s vulnerability to terrorist attacks.
Typical is Prof. Peter Shane of the University of Ohio law school, who told us, “Bush's position is senseless.”
He said, “First, Congress has been willing to extend the PAA on a short-term basis in its current form. So any lapse in the availability of PAA authority cannot be attributed to Congress. Second, retroactive immunity has nothing to do with the authority of the executive branch going forward. It is simply an effort to make sure that lawsuits are not used to unearth the full scope of possible Bush Administration lawlessness in conducting its so-called terrorist surveillance program.”
His view was echoed by Clayton Northouse, Information Policy Analyst for OMB Watch, a Washington-based open-government research group. Northouse told us, “Since day one, the administration has used the guise of national security to unilaterally increase the power of the Executive. This exposes the administration’s position as a blatant power grab. The letter from senior intelligence officials shows us that the Bush administration isn’t upset because the country is weakened by the House’s decision not to reauthorize PAA and grant telecom immunity. Rather, the administration is upset because they may not be able to avoid the oversight and approval of the legislative and judicial branches.”
Saudi Arabian "Justice"
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.
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.
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."
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