Douglas Feith

Feith Shocked, Simply Shocked By Possible Torture Charges. Should He Be?

Justin Elliott | March 31, 2009, 4:26PM

Here's what Douglas Feith, undersecretary of defense for policy during the Bush Administration, told the New York Times in response to the prospect of torture-related charges being brought against him in Spain:

I didn't even argue for the thing I understand they're objecting to.

Feith was, in the newspaper's words, "baffled by the allegations."

The case at issue has been sent to prosecutors for review by Baltasar Garzon, the activist Spanish judge who ordered the arrest of Augusto Pinochet in the late 1990s. The gist of the lengthy complaint is this: that six former Bush officials -- including Feith, Alberto Gonzales, and John Yoo -- created a legal framework that allowed for the torture of detainees at Guantanamo.

So is Feith right to be "baffled" by his name popping up among those facing potential charges? Let's go to the record:

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Torture

Report: More OLC Torture Memos To Come

Zachary Roth | March 23, 2009, 1:52PM

It sounds like we could soon be getting a look at a few more of those Bush administration legal opinions justifying the use of water-boarding and other "harsh interrogation techniques" for use in the War on Terror.

Newsweek reports that the White House is moving to declassify and release three of those memos, written by Justice Department lawyers in May 2005. In doing so, President Obama is siding with his attorney general, Eric Holder, over the objections of current and former CIA officials, who argue the disclosure could compromise "sources and methods". Ex CIA director Michael Hayden is said to be "furious" about the decision, and to have tried unsuccessfully to intervene directly with Obama officials.

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Torture

Torture Confirmed by ICRC Report

Ben Buchwalter | March 16, 2009, 11:24AM

In the past few years, the evidence suggesting that the Bush administration approved torture to question al Qaeda suspects has been overwhelming to say the least. But there have still been few historical accounts to confirm that torture was used, so every new addition to the record of abuse in the War of Terror is important. The latest and most authoritative addition comes from the International Committee for the Red Cross in an article in the New York Review of Books by Mark Danner, a journalism professor and New Yorker contributor.

Danner obtained a 2007 confidential ICRC report from an unnamed source indicating the use of torture to question al Qaeda suspects at secret CIA prisons, and focusing on three suspects who were treated especially harshly: Abu Zubaydah, Khaled Shaik Mohammed, and Walid Bin Attash.

The ICRC report stresses that in each case, suspects were stripped naked, deprived of food, and forced into painful positions for prolonged periods of time.

Abu Zubaydah, a suspected associate of Osama bin Laden, experienced perhaps the most gruesome questioning. He was refused solid food, water boarded, and subjected to long questioning sessions in his cell. Remembering his questioning, Zubaydah said:

Two black wooden boxes were brought into the room outside my cell. One was tall, slightly higher than me and narrow. Measuring perhaps in area [3 1/2 by 2 1/2 feet by 6 1/2 feet high]. The other was shorter, perhaps only [3 1/2 feet] in height. I was taken out of my cell and one of the interrogators wrapped a towel around my neck, they then used it to swing me around and smash me repeatedly against the hard walls of the room. I was also repeatedly slapped in the face....

I was then put into the tall black box for what I think was about one and a half to two hours. The box was totally black on the inside as well as the outside.... They put a cloth or cover over the outside of the box to cut out the light and restrict my air supply. It was difficult to breathe. When I was let out of the box I saw that one of the walls of the room had been covered with plywood sheeting. From now on it was against this wall that I was then smashed with the towel around my neck. I think that the plywood was put there to provide some absorption of the impact of my body. The interrogators realized that smashing me against the hard wall would probably quickly result in physical injury."

Zubaydah was later forced into this box and water boarded, repeatedly led to believe that he would suffocate. During the week he endured this harsh questioning, Zubaydah ate little more than Ensure diet drinks. He said that the torture only stopped because a doctor intervened.

Zubaydah was told that he was the first to be tortured in this way, "so no rules applied. It felt like they were experimenting and trying out techniques to be used later on other people."

Khaled Shaik Mohammed, the key mastermind of the 9/11 attacks, was also subjected to harsh questioning tactics. But he specifies that he was never threatened with death. In fact, interrogators said they would not let him die, but that they would bring him to the "verge of death and back again."

I was kept for one month in the cell in a standing position with my hands cuffed and shackled above my head and my feet cuffed and shackled to a point in the floor. Of course during this month I fell asleep on some occasions while still being held in this position. This resulted in all my weight being applied to the handcuffs around my wrist resulting in open and bleeding wounds. [Scars consistent with this allegation were visible on both wrists as well as on both ankles.] Both my feet became very swollen after one month of almost continual standing. ...

The beatings became worse and I had cold water directed at me from a hose-pipe by guards while I was still in my cell. The worst day was when I was beaten for about half an hour by one of the interrogators. My head was banged against the wall so hard that it started to bleed. Cold water was poured over my head. This was then repeated with other interrogators. Finally I was taken for a session of water boarding.

Walid Bin Attash, who was involved in attacking U.S. targets in 1998 and 2000, was also refused solid food and deprived of sleep.

I do not remember for exactly how many days I was kept standing, but I think it was about ten days.... During the standing I was made to wear a diaper. However, on some occasions the diaper was not replaced and so I had to urinate and defecate over myself. I was washed down with cold water everyday.

Danner came to a few key conclusions after reading the ICRC report: most importantly, the Bush administration approved torture in its questioning of al Qaeda suspects as early as 2002. And everyone in the administration, including President Bush, knew it was happening.

Danner says that it is unclear exactly how successful these tactics were in gathering key information about potential terrorists. But one key comment from Khaled Shaik Mohammed indicates that the information is worthless. In the worst moments of torture, Mohammed says he "gave a lot of false information in order to satisfy what I believed the interrogators wished to hear in order to make the ill-treatment stop." This information undoubtedly "wasted a lot of their time and led to several false red-alerts."

Barack Obama

Justice Withdraws 'Enemy Combatant' Definition For Gitmo Detainees

Zachary Roth | March 13, 2009, 4:14PM

In a move that represents both a formality and a historic gesture, the Obama administration has announced that it's withdrawing the designation of "enemy combatant" for Guantanamo detainees. The Bush administration had drawn widespread criticism for its use of that designation, which allowed it to deny detainees rights they otherwise would have been entitled to.

In a press release, the Justice Department said it was submitting a new standard to hold detainees at Gitmo. Rather than relying on the president's authority as commander-in-chief, the department explained, the new standard "draws on the international laws of war to inform the statutory authority conferred by Congress."

It also said that the governent is conducting a review of detainee detention policy which could lead to "further refinements."

President Obama has already announced this intention to close Gitmo within the year. In a sense, today's announcement is an equally important step in winding down the "War On Terror" concept that the Bush administration announced, and shifting to an approach that sees the fight against terrorism as an effort to be conducted within the bounds of international and domestic law.

In other words: change we can believe in.

David Addington

Report: Addington, Like Gonzo, Said To Still Be Looking For Work

Zachary Roth | March 9, 2009, 11:34AM

Buried in a New York Times story today about the fallout for several former Bush lawyers who crafted the administration's war on terror policies, is the following gratifying nugget:

David S. Addington, a top aide to Vice President Dick Cheney who was a forceful voice in internal legal debates, is also said to still be looking for work.

As far as we know, Addington has not yet described himself as a "casualty of the war on terror", as Alberto Gonzales did recently in explaining his own failure to find a job.

CIA

Some Destroyed CIA Tapes Showed "Enhanced Interrogation Techniques"

Zachary Roth | March 6, 2009, 6:24PM

In new court documents filed today, the Justice Department acknowledged that twelve of the destroyed CIA interrogation tapes depict "enhanced interrogation techniques" -- what most people call torture -- the ACLU announced in a press release.

The government also said it would provide a list of summaries, transcripts, and memoranda related to the destroyed tapes, though the ACLU noted that a previous list was almost entirely redacted.

The CIA admitted earlier this week that it had destroyed 92 interrogation tapes. The destruction was ordered by then operations chief Jose Rodriguez.

In an earlier Freedom of Information Act request, the ACLU asked for information on the treatment and interrogation of detainees in U.S. custody. It filed a motion in December 2007 to hold the CIA in contempt for its destruction of the tapes, which it argued violated a court order requiring the agency to produce or identify all the records it was asking for.

Arlen Specter

Too True! Specter and Cornyn Oppose Truth Commission

Zachary Roth | March 4, 2009, 3:57PM

GOP senators Arlen Specter and John Cornyn are leaving no doubt where they stand on Senate Judiciary chair Pat Leahy's proposal to create a Truth Commission to look into the Bush administration's war on terror policies.

They oppose it.

In a press release the pair sent out, Specter said:

When this idea of the so-called 'truth commission' first surfaced I said it was unnecessary because you had a change of administration, you could walk in the front door, ask for directions to the relevant filing cabinet, go in and open the drawer and find out anything you wanted to know. Well that's been done. And it's being done to a greater extent. You had some rather startling disclosures with the publicity in recent days about the unusual, to put it mildly, legal opinions which were issued to justify executive action.

Cornyn added:

I oppose the creation of a so-called 'truth commission' because it is a redundant and politically divisive exercise that would distract the Executive, Congress, and the American people at a time when we should be focused on reinvigorating our economy and winning the war on terror. This roving, unaccountable inquisition into each and every grievance with a Bush Administration policy is a backward-looking proposition that is directly at odds with President Obama's stated goals of unity and moving forward. Now is not the time for government to waste more of taxpayers' money by outsourcing a core Congressional responsibility.

It appears these senators can't handle the truth.

Pat Leahy

GOP Witness: By Historical Standards, Bushies' War On Terror Conduct Was "Exemplary"

Zachary Roth | March 4, 2009, 12:13PM

The Senate Judiciary committee is currently holding hearings on that proposal from committee chair Pat Leahy to set up a Truth Commission to look into the Bush administration's war on terror.

We'll have more to say on this whole subject soon, but for now it's worth noting that, as you'd expect, Bush allies are fighting hard to stymie Leahy's idea.

Just now, the committee heard from David Rivkin, a lawyer who served in the Justice Department and the White House under Presidents Reagan and George H. W. Bush.

Explaining why he opposed Leahy's proposal, Rivkin declared:

Yes, mistakes were made. Yes, some bad things happened. But compared with the historical baseline of past wars, the conduct of the United States in the past eight years ... has been exemplary.

We're sure that victims of torture under the Bush administration would appreciate Rivkin's willingness to supply that historical context.

Sen. Sheldon Whitehouse (D-RI) certainly didn't. He told Rivkin:

I would suggest, Mr. Rivkin, that until you know, and we all know, what was done under the Bush administration, you not be so quick to throw other generations of Americans under the bus, and assume that they did worse.

Late Update: Here's the video:

John Yoo

More OLC Memos To Come?

Zachary Roth | March 3, 2009, 4:16PM

Some followup by the New York Times on the Bush-era OLC memos released yesterday by the Justice Department...

Department officials have told the paper that they may soon release more secret opinions about counter-terror tactics. Those that contain classified information will need to be cleared with other government agencies before they can be released.

Separately, some Democrats are jumping on the controversial memos to bolster their argument for a commission to look into the Bush administration's counter-terror policies.

Senate Judiciary chair Pat Leahy, who has called for such a commission, put out a statement Monday that praised the Justice Department for releasing "some of these long-secret opinions." But it also argued that a "fuller review of these policies" by the new Obama team was needed.

And Sen. Sheldon Whitehouse said: "These memos appear to have given the Bush administration a legal blank check to trample on Americans' civil rights. We need to get to the bottom of what happened at O.L.C. and ensure it never happens again."

Also, the Times picks up on that footnote in the Steven Bradbury memo that we highlighted earlier. Reports the paper:

In a footnote to Mr. Bradbury's Jan. 15, 2009, memorandum sharply criticizing Mr. Yoo's work, Mr. Bradbury signaled that he did not want his repudiation of the legal reasoning employed by Mr. Yoo to be used against Mr. Yoo as part of the ethics probe.

Mr. Bradbury wrote that his retractions were not "intended to suggest in any way that the attorneys involved in the preparation of the opinions in question" violated any "applicable standards of professional responsibility."

Steven Bradbury

Is Footnote In OLC Memo Designed To Protect Its Author?

Zachary Roth | March 3, 2009, 12:41PM

There's an interesting detail buried in those OLC memos released yesterday, that perhaps hasn't gotten the attention it deserves.

In the January 15, 2009 memo written by then-acting OLC head Steven Bradbury -- in which he repudiated many of the previous OLC memos that articulated an expansive view of presidential power in the war on terror -- there's a footnote stressing that the memo is not "intended to suggest in any way that the attorneys involved in the preparation of the opinions in question did not satisfy all applicable standards of professional responsibility."

Why would Bradbury have gone out of his way to make this point -- especially in the context of repudiating those opinions?

Perhaps because the Justice Department's Office of Professional Responsibility has been working on a report on whether OLC lawyers violated standards of professional responsibility when they approved harsh interrogation tactics like water-boarding. And, as Newsweek revealed last month, a draft of the report is sharply critical of three senior OLC lawyers in particular -- John Yoo, Jay Bybee, and Steven Bradbury.

The report's release was delayed after then-Attorney General Michael Mukasey and his deputy Mark Filip objected that responses from Yoo, Bybee, and Bradbury should be included. As of February 6, Attorney General Eric Holder had not yet reviewed the report, and it had not yet been turned over to Congress.

So the fact that the earlier memos have been repudiated could potentially still affect the OPR report's conclusions about the lawyers' actions. As a result, Bradbury would have had good reason to explicitly state in his recent OLC memo that the repudiation of the original opinions did not bear on issues of professional responsibility.

It'll be interesting to see, when the OPR report is released, whether its authors agree with that take.

John Yoo

Experts Weigh In On Bush Justice Memos

Zachary Roth | March 3, 2009, 11:53AM

So what to make of those Bush administration legal memos, formulating counter-terrorism policy, that the Justice Department released yesterday?

The key news seems to be that at least ten of the opinions issued by the department's Office of Legal Counsel in the early years of the War on Terror -- outlining an expansive view of executive power -- were later deemed flawed and ordered withdrawn. We had previously known that this had occurred with just two such opinions.

In one memo, John Yoo argued that during wartime, the president could ignore free speech protections and could order warrantless searches. In another, the Bush DOJ claimed that detainees could be sent to countries that commit human rights abuses, as long as the US did not intentionally seek their torture. Five days before Bush left office, both of these opinions and several others were repudiated in a separate "memorandum for the Files" by Stephen Bradbury, then the acting head of the Office of Legal Counsel. That document was also released yesterday.

Other Bush administration memos that were later withdrawn argued that the president could unilaterally abrogate foreign treaties; could ignore guidance from Congress in dealing with terrorist suspects being detained; and could conduct warrantless wiretapping.

Since the release of the memos yesterday, expert opinion has essentially been united in denouncing the opinions.

Walter Dellinger, who ran OLC during the Clinton administration tells the New York Times that the Bradbury memo "disclaiming the opinions of earlier Bush lawyers sets out in blunt detail how irresponsible those earlier opinions were."

Jennifer Daskal of Human Rights Watch speaking to the Washington Post, singles out the memo that allowed the administration to send detainees to countries that commit human rights abuses. "That is [the Office of Legal Counsel] telling people how to get away with sending someone to a nation to be tortured," Daskal said. "The idea that the legal counsel's office would be essentially telling the president how to violate the law is completely contrary to the purpose and the role of what a legal adviser is supposed to do."

Orin Kerr, a law professor at George Washington, focuses on the memo that gave the administration the power to conduct warrantless wiretapping. Writing on the blog The Volokh Conspiracy, Kerr calls the argument that FISA doesn't apply to national security issues -- which appears to be the memo's argument -- "an extremely lame analysis." He continues: "Much of the point of FISA was to regulate that."*

And Salon's Glenn Greenwald is particularly outraged by an opinion arguing that the president can deploy the US military inside the US, directed at both foreign nationals and US citizens. Greenwald calls this "nothing less than an explicit decree that, when it comes to Presidential power, the Bill of Rights was suspended, even on U.S. soil and as applied to U.S. citizens."

He concludes:

If this isn't the unadorned face of warped authoritarian extremism, what is?

* This paragraph has been corrected from an earlier version which reported incorrectly that the blog post was written by Eugene Volokh.