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Justice Dept. Official Continues Administration's Waterboarding PR Offensive
Two weeks ago, Attorney General Michael Mukasey came to testify before the Senate Judiciary Committee armed with a fact that should have placated the Dems. He knew he was set to get walloped if he said again that his mind still wasn't made up on waterboarding. So he told the panel that waterboarding isn't currently legal -- but his mind still isn't made up as to whether it's absolutely illegal.
But that didn't seem to placate anybody. Instead of the Dems reacting with delight that waterboarding wasn't currently authorized by the Justice Department, they were shocked at Mukasey's argument that the technique could possibly be authorized for use in the future.
But with the Senate passing a bill that would absolutely ban waterboarding, the administration has kept at it. And today, Steven Bradbury, the controversial acting head of the Justice Department's Office of Legal Counsel, reiterated what Mukasey said late last month. And once again, Bradbury says that waterboarding might be used, but before it was used, the CIA would need to first determine that it's "necessary to obtain information on terrorist attack planning or the location of senior al Qaeda leadership." That's the administration's "bright line" against torture.
This time, the administration seems to be getting the coverage it's wanted. The AP takes a look at Bradbury's testimony and headlines (seemingly forgetting Mukasey's testimony), "Justice Dept: Waterboarding not legal: Justice Department Says for First Time That Waterboarding Is Not Now Legal."
But while Bradbury doesn't say anything new about waterboarding, he does give the most detailed narrative I've seen for how the Justice Department has reacted to Congress' and courts' attempts to prohibit the use of torture. You can read the whole thing here. More from Marty Lederman on this here.
Josh
Zachary
I can't understand why they want to torture so much. I mean everyone knows that you don't get reliable information. You can't be sure you even have the right person.
I think someone high up (Cheney) just gets off on it. I can see him being into S&M.
February 14, 2008 11:32 AM | Reply | Permalink
I believe this is part and parcel of what the Bush administration does in all things. Namely they wanted to place people throughout the Government who stood by their lines that nothing, I mean no policy or interpretation of legislation, sits on steady ground. Basically anything and everything is open to interpretation, talk about activist politics, if Global warming is real, then find PR people and others within reach that believe that there is no consensus. If torturing is illegal, what does torture mean, how is it defined, are their circumstance with differing individuals who can be interrogated with enhanced techniques which are not explicitly barred by our treaties and obligations under the law? If Fema does not act quickly, it is not there fault but the fault of all the citizens who did not heed the warning, and the LA governor for not giving up authority of the LNG, and surely it is not the Army Corp of engineers fault because there is no way to prove that their guidelines for building the barriers at the time was outside of code.
Namely this administration has no integrity because they only want to take credit for their success and push the blame in to a world in which the facts are questionable and unstable. Surely the one thing that is clear is that Bush and Co policies are rather unstable and lack any sort of integrity.
February 14, 2008 11:48 AM | Reply | Permalink
TEST
February 14, 2008 12:29 PM | Reply | Permalink
Compare and contrast - Position of DOJ and McCain regarding torture with that of Musharraf ... "Now if somebody, whether he's anybody, is trying to create such anarchy that maybe Pakistan's integrity is at stake maybe our economy ... will collapse. I don't consider any human rights in such situations. We will deal with it, whatever it costs because Pakistan (USA) is more important than human rights."
February 14, 2008 12:32 PM | Reply | Permalink
What we do onto others we do upon ourselves.
February 14, 2008 12:38 PM | Reply | Permalink
There are two key legal words in the statement on page two [2] of the testimony to Congress. not closely the highlighted text: "Fewer than one hundred terroists have been detained by the CIA as part of this program since its inception in 2002."
- How many "nonterrorists" have been detained by the CIA?
- What "other programs" exist to detain non-terror-related personnel and/or abuse them in violation of the laws of war prohibiting all abuse of POWs?
- How many "non terrorists" have been abused in violation of the laws of war by the CIA?
February 14, 2008 2:15 PM | Reply | Permalink
Page 3 of the written testimony: "From the very beginning, the CIA has sought views of the Department of Justice to ensure that its interrogation program complied with the law."
- What review did DoJ OLC make of the Geneva conventions?
- What role did the DOJ OLC give to the White House counsel in commenting on their conclusions?
- How does the DOJ OLC review of "the law," square with the PBS Frontline discussion on which WH counsel did or didn't know about the POW treatement policies, procedures, and legalities relative to Geneva?
- When did WH counsel first learn that POWs were being mistreated in violation of Geneva; and did this prompt the resignation of WH counsel after 2003?
- Was the DOJ OLC revivew of "the law" limited to only whether or not the activity did or did not meet the US standard of "torture"?
- What review did DoJ OLC do of "this program" to determine whether it did or did not meet the Geneva Convention standard of "abuse"?
- If these techniques were "lawful," why did the President after the Supreme Court ruled the POWs were protected by Geneva, move the Prisoners from Eastern Europe?
- Is it the position of DoJ OLC that the POWs in Eastern Europe had to be moved becuase they were "not" being treated, as required, per the Geneva Conventions?
It appears the DOJ OLC has two standards on the law: If they want to abuse someone, they'll say, "We do not torture." But the moment the Supreme COurt says, "Don't abuse them as Geneva prohbiits," the DOJ OLC directs the President to move the Prisoners.
- Why were the Prisoners moved if "all" applicable laws were being followed?
- How many CIA prisoners in Eastern Europe were being abused, prompting the movement from Eastern Europe to Guantanamo?
- Which of the "many CIA programs" did the Easterne European POWs fall under: "This" CIA program which "permits" waterboarding abuse; or "another" program which ignores Geneva altogether and places those POWs on floating/submerged vessles outside Guantanamo, Eastern Europe, and off the coast of Diego Garcia?
February 14, 2008 2:26 PM | Reply | Permalink
From page 4 of the witness' testimony: "[T]he Military Commission Act helped clarify how the United states would apply Common Article 3." This incorrectly suggests there was "confusion". No, there was no confusion: Geneva prohibits all abuse. The MCA did the opposite: Pretended there was "confusion" until the MCA was "approved". But Nuremberg from the 1940s -- over 60 years ago -- reminds us of the legal requirements under Geneva can be prosecuted as war crimes against civilan policy makers.
The witness' statement appear to mirror Yoo's allegedly false, rekcless statement that Geneva was "unclear." It is an alleged misprepresentation by tthe witness to Congress to suggest, until the MCA was passed, Geneva was "unclear" whether abuse was or wasn't lawful. All abuse is illegal.
February 14, 2008 2:33 PM | Reply | Permalink
"the executive order makes clear that the program must be very narrow in scope"
- Where is a copy of this executive order?
- Why, despite "this executive order," was the Congress told repeatedly that there was "no" evidence of waterboarding, illegal abuse, or war crimes?
- Was the Court reviewing alleged POW abuse, and seeking the CIA tape which was supposedly destroyed, informed of this executive order related to illegal POW abuse?
- Why was the DOJ OLC not providing timely information to the court about 'all' evidence related to illegal prisoner of war abuse?
- Is there a reason why DoJ OLC appear to have not only failed to provide all evidence, but have allegedly known about this executive order which the court does not appear to have been timely provided?
- Can DoJ OLC provide good cause why the courts should not hold DOJ OLC legal counsel indicivually in contempt for not following the court order to provide all evidence of prisoner abuse related to the information provided on the now-destroyed tape?
- Was the 9-11 Commission told about this executive order that relates to CIA videos of alleged POW abuse; why not?
February 14, 2008 2:38 PM | Reply | Permalink
Page 5: "The Director of the CIA must have rules and procedures in place to ensure compliance with the executive order"
- When did CIA IG conduct a review of this assertion to ensure compliance by DCI?
- How were CIA agents subject of the CIA IG review related to the claims of "unfair CIA IG review"?
- What is the relationship between this claim of "procedures," to the CIA IG requirement to have an ombudsman in place?
- When were Members of Congress provided copies of these procedures?
- Is there a reason the Senate Intelligence Community has not commented on, or provided memoranda related to these now-disclosed CIA procedures?
February 14, 2008 2:42 PM | Reply | Permalink
"Congress would be appropriately notified"
- Can DOJ AG "determine" that "no notification" is needed?
- Can DOJ AG "determine" that failures to notify Congress "are not a crime or actionable"?
- What review does DOJ OPR make of the DOJ AG action or inaction relative to this notification to Congress?
- Why is the witness talking about this "notification" as if the illegal abuse were speculative; when the procedures in place suggest the the abuse was known, planned, and historical?
February 14, 2008 2:44 PM | Reply | Permalink
This is meaningless, page 6: "There has been no determination by the Justice Department that use of waterboarding, under andy circumstances, would be lawful under current law."
- Has there been any DoJ OLC/DoJ/EOP/OVP determiantion that the use of waterboarding would be unlawful under the Geneva Conventions?
- If the Bybee Memo was "problematic," why did the President in response to the Bybee Memo say he would treat POWs humanely; but now we read the opposite that he signed an executive order asserting the opposite: It was his policy to abuse them in violation of Geneva?
- Why has DOJ OLC memoranda cited case law which defines waterboarding as illegal torture?
- If there was no "determination of lawfulness" what basis is DoJ AG saying he will not enforce violations of Geneva realted to waterboarding?
- If there is "no determination of lawfulness," what guidance is the DOJ AG using to assert he will or will not enforce the law: Which "determiantion" is he using to make this decision; and which standard is he choosing to not prosecute violations of?
February 14, 2008 2:49 PM | Reply | Permalink
The 6-page testimony would have us believe that the waterboarding procedure was well known, documented, understood, and specific. If this is true, then CIA fails to explain the JAG's opposite concerns: That the abuse was illegal, and civilian policy makers could be prosecuted before the ICC.
- What review did the witness make of the JAG's concerned raised at the POW working group meetings?
- Did the DoD-DoJ personnel at the POW working group meetings after 2001 not provide any input to the CIA on whether or not waterboarding would or would not be illegal abuse outlawed by Geneva?
- How were the JAG's concerns with the Geneva implications raised at the POW working group meeting reconciled with the witnesses assertions that the treatment was "lawful"?
- When were the JAGs concerns about war crimes ignored in re the writing/drafting of the Executive OrderA?
References
A. Working Group Memos On POW Treatment
[ http://snipurl.com/powworkinggroupmemos ]
B. See page 381 of this Google Book for Rives Memo:
[ snipurl.com/1zohr ]
Rives Memo, raising concerns international community would negatively react, and consider the treatement illegal
- What's changed since these Memos were written?
- Why is the US no longer "concerned" about the international reaction?
- If the DOJ AG says it is "lawfulA" for him to not prosecute these violations, how does he explain away the concerns of Rives which prompted the original secrecy about the POW abuse?
The record does not support the assertion that waterboarding or US treatement of POWs was lawful. The US did, in secret, attempt to have vidoes, still images, and other evidence on CDs destroyed, hidden, and not made public. This hardly warrants confidence in the CIA's assertions today that everything was fine, or that there were no problems. Rather, the opposite is more likely:
- The President's policy of "legalizing" this activity was illusory, retroactive, and not consistent with contemporaenous JAG concerns that it was illegal;
- The PResidents stated reaction to the Bybee Memo was that the POWs would be treated humanely, notwithstanding the now-discloosed policy that he issued in an Executive Order that they would be abused with waterboarding.
February 14, 2008 7:21 PM | Reply | Permalink
I would encourage all TPMM readers to review the following archive of documents, and contrast them with what we've read in the testimony on waterboarding: [ snipurl.com/1zohu ]
- To what extent were the originally-disclosed documents/assertions in official government memoranda not consistent with the revelations in the 6 page statement on waterboarding?
- To what extent were the asserted policies/options of the DOJ AG (then Gonzalez) not consistent with his sworn statements to Congress?
February 14, 2008 7:24 PM | Reply | Permalink
There are many public documents which do not reconcile with what the CIA has stated in its 6 page testimony. For example, consider: "Feb 1, 2002 - Department of Justice memo to President Bush reiterating position against the application of Geneva Convention to al Qaeda and the Taliban [ From this list of documents: http://snipurl.com/1zohu ]
Here's one key comment in the Ashcroft 1 Feb 2002 memo to the President:
The above quote would suggest the debate over "whether waterboarding is or isn't torture" is irrelevant: Because it is abuse, it was well known going forward from 2002, that the abuse of the POWs was a crime under the war crimes act of 1996.
The Ashcroft Memo is evidence, contrary to the CIA's assertions about MCA, that there was no ambiguity; and the MCA did not clarify anything: The law was already clear: This waterboarding, as POW abuse was illegal under the existing law of the land: The 1996 War Crimes Act.
There is other evidence supporting the claim that the President did determine Geneva was appliable. Recall the President, despite the Bybee memo, did "determine" the Conventions applied; and the Supreme Court ruled that the POWs were entitled to all Geneva protections, prompting the US government to move prisoners from Eastern Europe. Had the President had a genuine belief that his "determiantion" on the POW status was final, and that the Conventions did not apply in re Clark v. Allen ["treaties don't apply if the President 'determines' they don't apply"], he would not have moved the POWs from Eastern Europe. He should have not responded to the Supreme Court. However, because he did act as if the Conventions applied, then he cannot argue that he "did not determine" they did not apply.
The CIA would have us believe that there was ambiguity, where there was none; and that the President "determined" something, which is not supproted by the President's subsequent actions to the contrary. The DOJ OLC cannot invoke Clark this late in the game after the President's actions indicates his "determination" was not consistent with the illegal POW abuse with waterboarding.
If you've gotten nothing out of the above comments so far, take this away: The CIA's comments in the 6 page testimony appear to be wholly irreconcileable with the line of evidence available here [ snipurl.com/1zohu ]:
- The CIA has rewritten history;
- The CIA asserted things in the 6 page testimony things which are not consitent with the orignial legal assertions/memoranda going forward from 2001;
- The legal conculsions today would have us reverse the legal interpretations of what the President was or wasn't doing as he was reacting to the Supreme Court's decisions in re POW status.
This has the appearance of a giant smokescreen, a mess far too large to timely review. Time for the GOP Presidential candidates to publicly comment on their plan to sort this mess out.
February 14, 2008 7:43 PM | Reply | Permalink
For the purposes of these comments, "CIA" refers to the CIA treatement of the POWs; CIA and DOJ OLC are used interchanbeably. to be clear, DoJ OLC provided the comments about the legal opinions related to CIA treatement of POWs. It would have been better to say "The government" without confusing the issue by asserting it was or wasn't DOJ OLC/CIA policies/treatement.
Sorry for the confusion.
February 14, 2008 7:53 PM | Reply | Permalink
The problem the CIA has in asserting there was an "executive order" related to waterboarding polcies, is that it's unclear where/when that EO fits in with the timeline of documents shown here: [ http://snipurl.com/1zohu ]
- What was the date of the "now0disclosed" EO?
- If we assume this asserted EO is real, how do the now-disclosed documents at the link need to be reconsidered: Were subjsequent statements in writing to Congress wholly inconsistent with this now-disclosed EO?
February 14, 2008 7:49 PM | Reply | Permalink