Archive for the ‘Torture’ Category

Manhunt: The Rehabilitation of the CIA and Guess What? Torture Works!

Monday, January 28th, 2013

As if ZDT (Zero Dark Thirty) was not enough. Wait until you all see Manhunt which I just did at Sundance. Its, a CIA propaganda film justifying torture, targeted killings etc. The agents who were in the film attended the screenings: Nada Bakos, Cindy Storer and Marty Martin. Martin was in charge of the OBL investigation. All obviously had CIA clearance to talk etc. Martin justifies the “torture techniques.” Martin, of course, ought to be investigated for violating the torture law and jailed if found guilty, along with the next guy below:

Jose Rodriguez, former head of the Counter Terrorism Center, is a primary talking head justifying water boarding with only a passing statement or two by Ali Soufan, former FBI agent, disagreeing. Of course, there was no mention of the destruction by Rodriguez of the tapes of the water boardings that he oversaw.It was extremely upsetting to sit and watch Rodriguez on the screen as an oracle and Martin treated as a hero by the audience.

While part of film is the story of the female analysts who worked away on the case, and the killing of CIA agents at Khost, the film goes a long way toward justifying torture—in fact, all the way. One irony of the killings at Khost is that the Jordanian doctor who blew himself up to do it was angered by the Iraq war. That war was begun in part on false “evidence” obtained by the US torturing al-Libi who provided the claimed links between Saddam and al Qaeda.

Among the films many failures and omissions  is its editing away of the reasons al Qaeda says it attacked the United States. At least twice  Osama  is shown giving an interview in which he expresses his anger at the United States–each time he is cut off before giving the reasons for that anger. The film ends with General McChrystal speaking pablum on the way to ultimately stop terrorism: understand Muslin and Arab culture. Should not the audience have been given the opportunity of hearing why al Qaeda says it attacked the United States: presence of the U.S. military in Saudi Arabia, sanctions against Iraq and support for Israel. While nothing justifies the intentional killing of thousands of civilians, perhaps addressing some of the underlying causes might lessen the impetus to commit such acts.  Nor does the film address the dangers of blow back. While it opens with the efforts of Osama and others to rid Afghanistan of the Soviets it fails to point out the US aid to those efforts including the arming of Jihadists that ultimately blew back against the U.S.

Shockingly, this travesty of illegality was paid for by HBO and got a coveted spot at Sundance of which of which they are a sponsor.

Putting this film together with ZDT, the Green Zone, Argo etc we seem to have a real rehabilitation of the CIA’s image. That Rodriguez could act as Oracle and Martin as hero shows the high costs of Obama’s failure to prosecute. Anecdotally at least most of that liberal Sundance audience accepted what was done and applauded it. I am afraid this debate in the context of protecting the “homeland” has been lost for now.

The great counter to this experience was seeing Rick Rowley and Jeremy Scahill take on JSOC, targeted killings and drones in Dirty Wars. I thought it was the best documentary at Sundance. It received standing ovations and gave me some hope. Perhaps it was a different audience. People were most upset at the killings of Americans without due process and also at the point Dirty Wars proved again and again: there are reasons America is hated; drones and “targeted” killings that destroy communities are high on that list.

Dubious military authorization should be withdrawn (McCLATCHY-TRIBUNE)

Sunday, September 18th, 2011

Ten years ago today the United States set itself on a destructive course.

That was the day President Bush signed the bill that Congress had just passed called the Authorization for Use of Military Force.

Ten years later, America’s use of military force is still going strong, with wars from Afghanistan to Pakistan, from Iraq to Yemen, and from Libya to the Horn of Africa.

Under this law, the president has unlimited power to use force against anyone in the world — that’s any nation, organization, person, associated forces and so forth who the president determines was in any way involved in the attacks of 9/11.

There’s no geographical limit. And there’s no time limit.

The president has that power forever. He (or someday she) can try to use it to support an entire domestic spying initiative contrary to established law, as we first learned in 2005.

That’s when it became known that Bush was authorizing the National Security Agency to break the law that required warrants for the monitoring of the phone calls and emails of individuals and organizations inside the United States. At the time, it was a scandal for the NSA to be searching for evidence of terrorist activity minus the court-approved warrants required for domestic spying under the Foreign Intelligence Surveillance Act of 1978.

Now, thanks to congressional amendments to the law in 2008, that previously unlawful activity has legal backing.

Like Bush before him, President Obama claims that the Authorization for Use of Military Force gives him the right not only to make war and kill people, but also to capture anyone he suspects of terrorism anywhere in the world and imprison them forever without trial.

Similarly, the Obama administration uses the authorization to defend its policy of using targeted killings against suspects in the so-called war on terror even if they are way outside a war zone — in addition to American citizens, such as in the case of Anwar al-Awlaki.

Obama ran for president on his record as a constitutional law professor and promised to return transparency and lawfulness to America’s governing structures. Now, unforgivably, he is embracing summary executions.

The Authorization for Use of Military Force was always an invitation to presidential abuse of power. We should withdraw it right away.

Michael Ratner, president emeritus of the Center for Constitutional Rights, wrote this for the Progressive Media Project, 409 East Main St., Madison, WI 53703

The loss of liberty in the wake of 9/11 will remain the legacy we have left our children’

Tuesday, September 6th, 2011

In america ten years since 11 September 2001, fundamental protections embedded in the American and international legal landscape over centuries have faced systematic evisceration, each encroachment justified by an endless war on terrorism.

The moment the Bush administration chose to label the attacks acts of war, rather than the heinous crimes they were, a careful groundwork was laid to allow for a future of cherrypicking which laws of war would apply and which would be ignored. As a result, thousands have been kidnapped: whisked away to detention facilities, from Guantánamo to medieval prisons like those at Bagram and Abu Ghraib, and to secret sites employing unspeakable acts of torture.

Detainees were held incommunicado, a fancy word for “disappeared”: never informed of the charges against them. The few who were charged face trials before kangaroo courts called military commissions where newly-minted rules assure conviction; the majority, however, will remain prisoners of this so-called war indefinitely.

Habeas corpus, the legal means to test one’s imprisonment in court, was abolished by President Bush and Congress. Though restored through legal challenge in the US supreme court, the Bush and Obama administrations, as well as the courts, continue to undermine that victory – best evidenced by Obama’s retracted promise to close Guantánamo within a year of his inauguration.

Today, Obama has adopted almost all of the draconian Bush practices, save for permitting the worst forms of torture like waterboarding. But hooding, sleep deprivation and isolation are still permitted. The president has also ruled out any semblance of accountability for Bush administration officials responsible for waterboarding, practically ensuring its recurrence.

The United States is a changed country. Most don’t seem to care. Until they do, the loss of liberty in the wake of 9/11 will remain the legacy we have left our children. None of us are safer. All of us are less free.

Permanent Gitmo & Permanent War:New Nat’l “Defense”Bill

Thursday, June 23rd, 2011

On the latest Law and Disorder Radio (began airing Monday on WBAI and around the country on various radio stations throughout the week), co-host Michael Ratner (Center for Constitutional Rights) noted a bill which made it through the House and now faces the Senate.

Michael Ratner: On Law and Disorder, we’ve often brought you up to date news on Guantanamo, the so-called war on terror, military commissions — all that goes with Guantanamo, torture, indefinite detention — what I would like to call “The Guantanamo Syndrome” or “The American Operation Condor.” If you remember, Operation Condor was when Chilean dictator Pinochet went around the world picking up people, torturing them, murdering them and jailing them. We have our own. Let’s call it The Guantanamo Syndrome.


Right now as we speak, there’s a new national authorization defense act going through our wonderful Congress. It’s passed the House, it’s now in the Senate. This is the yearly bill that basically funds the empire’s wars all over the world. And it’s always like a Christmas tree and people put in some of the worst provisions you can imagine. And they’re continuing to put in more and more ways of expanding The Guantanamo Syndrome. And the main one is one that we’ve talked about before in a different context or a different statute but it’s now about to be amended. People may not recall but the statute that began the War in Afghanistan was called the Authorization to Use Military Force — the AUMF. It’s a very broad statue. It allowed the president on his own to attack any nation-state, person, individual, whatever anywhere in the world who was in any way involved with 9-11 — peripherally, in any way at all. But it was linked to 9-11. And it’s a terrible statute because that’s what the president — whether it was Bush or Obama — is now using to go after not just Afghanistan, but to go after Pakistan, to go after Yemen. The AUMF is an awful statute as currently written because the president is using that not just for the War in Afghanistan, which it was originally written for, but the war in Pakistan, the war in Yemen, probably war in North Africa, detention of people he can pick up anywhere in the world, etc. So it’s an awful statute.


As broad as it is, and as bad as it is and as much authority as it gives the president to make war anywhere in the world without going back to Congress, without going to the American people, it’s about to get worse. The House of Representatives just made it worse and the question is whether the Senate will continue with leaving it in the statute as it is. As I said, the old AMUF allowed attacks on any nation-state, etc., involved in 9-11, anywhere in the world. This one takes out any link with 9-11. It essentially says that anyone who’s a threat to the United States, involved in an act of terrorism, whether in the US or abroad, can be subject to an attack by the president — military attack and detention. So it takes out any link with 9-11 essentially broadening the so-called War on Terror even more than President Bush had done.


Now it’s interesting. The Obama administration says this is unnecessary and I wouldn’t say that they’re dead against it, but they’d rather not have it in there. And it’s not that they’re being so wonderful about this. It’s just that they’re already going way beyond the current AMUF in attacking anybody in the world. So they’re essentially saying, “Don’t put it in writing and make a red flag out of it, let’s keep it away.” So they’re expanding war powers.


So if you look at the American empire as one that is now sustained by war, some 771 military bases plus the power in one person — the president — to attack anywhere in the world, you’re talking about an empire that’s built on tanks, aircraft carriers and the Pentagon and war. And it’s not going to be any good going forward. If there’s any characteristic of this empire that seems out there and up front right now, it’s that this is an empire of war.


The National Defense Authorization Act also has some special provisions about Guantanamo. I won’t go through all the details but basically we’ve already said on this show, Guantanamo is becoming a permanent aspect of the detention system in this world or in this country. It’s open now forever, it seems. there’s laws that say you can’t bring people to the US for trial. There’s preventative detentions and military commissions. This National Authorization Detention Act — hard to believe — but makes those provisions even worse. It now says that any non-citizen held by the US military — any non U.S. citizen held by the US military in a foreign country cannot be brought to the United States. Not just people in Guantanamo can’t be brought here but people in any foreign country. So if someone’s picked up — as they have been in the past — for like bombing the USS Cole or something — they can no longer be brought to the United States for trial even though the Cole people were brought to the US for trial — or at least some of them. That means they have to be tried in the so-called military commissions or rum trials, trials that are completely no good for anything. A pretty amazing bill basically saying “No more Constitutional courts, let’s just try these people in some court we set up somewhere in the world.” Very, very bad provision.  It also says that any non-US citizen in the United States who’s involved in a terrorist attack cannot be tried in a regular US federal court but must be tried in a military commission.


So there you go. If you thought we were moving towards fascism in this country — at least certain aspects of it — there we see it — open and notorious. Perhaps we’ll be lucky and these three provisions that I’ve talked about — the broadening of the war, the prohibition on bringing anybody from any foreign country to the United States for trial, and the prohibition on trying any alleged US terrorists non-citizen in the United States in a regular court — we’re hopeful that those three provisions won’t pass. But they’ve passed the House already and it’s not clear to me that they won’t go through the Senate. So it’s not getting better, it’s getting worse and worse and worse. (In fact, much of this is now in the Senate legislation—more on this later)


Michael Ratner hosts Law and Disorder Radio with Heidi Boghosian (National Lawyers Guild) and Michael S. Smith (both organizations) — three attorneys. Michael S. Smith has a website and I’ll try to put it on the links when the heavens open up and gift me with time. Until then, click here.

Bringing the ‘Bush Six’ to justice: Spain Cases Moving Along

Friday, January 7th, 2011

If those responsible for the Bush administration’s torture policy will not face charges in the US, then in Spain it must be.

Today, the Centre for Constitutional Rights filed papers encouraging Judge Eloy Velasco and the Spanish national court to do what the United States will not: prosecute the “Bush Six”. These are the former senior administration legal advisors, headed by then US Attorney General Alberto Gonzales, who violated international law by creating a legal framework that materially contributed to the torture of suspected terrorists at US-run facilities at Guantánamo and other overseas locations.

Friday’s filing provides Judge Velasco with the legal framework for the prosecution of government lawyers – a prosecution that last took place during the Nuremberg trials, when Nazi lawyers who provided cover for the Third Reich’s war crimes and crimes against humanity were held accountable for their complicity.

CCR would prefer to see American cases tried in American courts. But we have joined the effort to pursue the Bush Six overseas because two successive American presidents have made it clear that there will be no justice for the architects of the US torture programme, or any of their accomplices, on American soil.

Thanks to the US diplomatic cables recently released by WikiLeaks, we now know why seeking justice abroad has also been fraught with difficulty – why there have been so many delays and even dismissals. The same US government that will not pursue justice at home, not even when the CIA destroys 92 videotapes that show detainees being tortured, has put a heavy thumb on the scales of justice in other countries as well.

During the Bush presidency, the US intervened to derail the case of German citizen Khaled el-Masri, who was abducted by the CIA in 2003 and flown to Afghanistan for interrogation as part of the U.S. “extraordinary rendition” program—until they realized they had kidnapped the wrong man and dumped el-Masri on the side of an Albanian road. A leaked 2007 cable reveals the extent both of U.S. pressure and German collusion. In public, Munich prosecutors issued arrest warrants for 13 suspected CIA operatives while Angela Merkel’s office called for an investigation. In private, the German justice ministry and foreign ministry both made it clear to the US that they were not interested in pursuing the case. Later that year, then Justice Minster Brigitte Zypries went public with her decision against attempting extradition, citing US refusal to arrest or hand over the agents.

Will this toxic combination of American pressure and a European ally’s acquiescence derail justice in Spain, as well?

This 1 April 2009 cable, released 1 December 2010, shows Obama administration officials trying their best to stop the prosecution of the Bush Six. They fret that “the fact that this complaint targets former administration legal officials may reflect a ‘stepping-stone’ strategy designed to pave the way for complaints against even more senior officials” and bemoan Spain’s “reputation for liberally invoking universal jurisdiction”. Chief Prosecutor Javier Zaragoza reassures the US that while “in all likelihood he would have no option but to open a case”, he does not “envision indictments or arrest warrants in the near future”, and will “argue against the case being assigned to Garzon” (a notoriously tough judge, who has since been removed from the case).

Judge Velasco, who has since been assigned to the case, has been scrupulous in his oversight. The Spanish court has thrice asked the US, in accordance with international law, “whether the acts referred to in this complaint are or are not being investigated or prosecuted”, and if so, “to identify the prosecuting authority and to inform this court of the specific procedure by which to refer the complaints for joinder”. Of course, no response to any of these requests has been received, because the Obama administration has no intention whatsoever of pursuing justice on this matter. 

Democracy demands a fully functioning legal system – one that does not bend to hidden pressures and political agendas. We have faith that Judge Velasco will justify the US officials’ concerns about Spain’s independent judiciary, and its respect for international law, and move forward with the Bush Six case.

Muting Our Criticism of Obama: If We Don’t Speak Out Who Will?

Thursday, December 10th, 2009

At a reception I attended the other day a progressive acquaintance came up to me and said the left “must stop bashing Obama. Keep doing it and he will lose the election. We should be thankful for what we have.” I am not sure he thought that I was one who bashed Obama or he just wanted to get that message out in the community. As it happens I do not “bash Obama” whatever that means; but I am sharply critical of a number of his policies and practices and those of his administration. (This is not to say I would have preferred McCain to win; I would not have and on some issues, mostly very safe ones, Obama has made some difference, e.g. Ledbetter Fair Pay Act, ending the HIV exclusion.) I responded to my acquaintance: “It won’t be the criticism of progressives that will lose him the election—we hardly have that kind of power. It is his own actions especially around economic issues that could make his reelection difficult; actions that have alienated and angered significant segments of the unemployed American population. I don’t do my work by thinking about whether it will help or hurt Obama in the next election. I don’t tailor principles to politics.”

In arguing that we should mute our criticisms of Obama we are being asked to accept administration actions that are unacceptable; practices that will involve the deaths of thousands and the violation of our own constitution and binding treaties. I have always believed we must advocate and act on principle and that is the way to make change.  So when we see that Obama will continue the preventive detention scheme that underlies Guantanamo, that he will have detainees tried before military commissions, that he will continue the incommunicado detentions at Bagram and hide detainees from the Red Cross, we cannot and should not stand by in silence. We are seeing the continuation of Bush’s law and the deterioration of fundamental protections of freedom. When we see Obama hide illegal acts behind claims of “state secrets;” when he refuses to have the torture conspirators investigated and prosecuted; and when he even welcomes some of the conspirators into his administration, we must speak up. Granting impunity to officials who torture is to insure that we will again be a nation of torture and that the message heard by every petty dictator around the world is: “The United States can torture in the name of national security and so can we.”  When we see officials of this administration attack the Goldstone report which documents war crimes in Gaza, we understand the deep hypocrisy of this government.

Nor can there be any screaming that is too loud in opposition to the wars that Obama is continuing without end. The July 2011 beginning withdrawal date from Afghanistan was shown to be a fiction within an hour of Obama’s speech. Obama like those before him accepts that “We are the United States and war is what we do.” Obama and the Presidents before him are bleeding our country and world. Of course, I do not expect miracles from one man on top of a huge national security establishment that is hard to buck. Rome was not built in a day and neither will it be dismantled in a day. But I don’t see a lot of dismantling going on. What I see is more and more building of a national security state—perhaps with a softer hand—and that is alarming.

As I said when I began this piece I do not think progressive and liberal criticisms on most of these issues or other disappointments such as Obama’s failure to end “Don’t Ask, Don’t Tell” will have much affect the next Presidential election. Even the war probably won’t have much to do with who is our next President. Obama took a safe course, at least for himself and the next election: he gave the generals roughly what they asked for and the Republican Secretary of Defense, like the cat that ate the canary, is smugly satisfied.  

It seems likely to me that the economy will be Obama’s Waterloo. He has shoveled billions and billions into the big banks, and the wars and almost nothing into creating jobs and saving people’s homes.  Regarding the jobs meeting he convened to help with ideas about how to reduce unemployment, he said there are “limits to what government can do and should do,“ and that he was open to “responsible” and “demonstrably good” ideas to create jobs. I don’t think that is what the over 15 million unemployed in the country wanted to hear. They need jobs and they especially did not want to hear Obama say there was not going to be enough money to do it. The danger here is not just that Obama will lose the next election; but it’s one we have already begun to see: a right wing populism that often occurs in times of great economic dislocation, income disparities and joblessness.

We are at a time of great economic insecurity; a time when fundamental rights are under threat from our own government and a time when we are the world’s warriors. Silence or passive acquiescence is complicity. Enough already!  We can applaud Obama’s actions when they are right; we cannot and should not excuse or explain away his actions when they are wrong. If we don’t speak out, who will?

Finally Some Great News: 23 Americans (Mostly CIA agents) Convicted in Italian Court for Renditions. (Michael Ratner)

Thursday, November 5th, 2009

You may recall the case. The CIA was accused of a 2003 kidnapping of an Egyptian cleric, Abu Omar, from the streets of Milan, Italy. He was rendered to Egypt where he was tortured. A courageous Italian prosecutor, Armando Spataro, had been pursuing the case since that time over the objections of the Italian government. Luckily in Italy the prosecutors are independent of the political branches and Spataro, despite many attempted roadblocks, went ahead. Now the court has come down with convictions and jail sentences. Robert Seldon Lady, former CIA station chief in Milan got 8 years and 22 other Americans got 5 years. Utterly remarkable!  The only problem is none of the defendants showed up for trial and the Italy was unwilling to ask for their extradition.

Despite this, the convictions are really earth shattering news although the New York Times asserts they will have “little practical effect.”  Just ask the 23 convicted operatives if they agree with that sentiment. They are considered fugitives in 25 countries of the European Schengen area and subject to arrest. Upon arrest they will be sent to Italy to serve out their jail sentences. Already one of those convicted is suing the United States claiming she should have had received diplomatic immunity.(See list of 24 below.) And I wonder what those agents think about Stephen R. Kappes, who at the time of the kidnapping was the assistant director of the CIA’s clandestine branch and is said to have planned the rendition? He was not a defendant, having not been in Italy, but is currently Obama’s second ranking CIA official. So he is off the hook, at least for the moment, and can still enjoy Rome and Paris. So no wonder a U.S. spokesmen said the administration was “disappointed” in the verdicts.

Just think about the message these convictions send for the future even if these agents do not spend a day in jail. If you were a CIA agent, would you kidnap again? Would you waterboard?  This is why prosecutions work. They act as a deterrence. No matter what happens now, no matter what the Obama administration does to get rid of these convictions e.g. getting Italy to give clemency, a clear message has been sent.  Committing human rights atrocities even if done in the name of national security and for the most powerful state in the world does not give you immunity. I don’t think all such law breaking will cease, not by a long shot. However, the Italian courts have taken a powerful first step toward giving substance to the expression that no one is above the law.

The lesson the Obama administration should learn is that unless and until it holds U.S. officials accountable, other counties will.


The Schengen countries where U.S. officials will be arrested:

Austria Belgium Czech Republic Denmark Estonia Finland France Germany Greece Hungary Iceland Italy Latvia Lithuania Luxembourg Malta Netherlands Norway Poland Portugal Slovakia Slovenia Spain Sweden   Switzerland

You Have Been Weighed On the Scales and Found Wanting: Preventive Detention and Military Commissions

Tuesday, May 5th, 2009

Michael Ratner  May 5, 2009

Last week was a week of bad portents if we are trying to divine the direction of the Obama administration regarding some fundamental human rights questions, particularly regarding the treatment of detainees at Guantanamo.

One of Obama’s earliest acts was to order that Guantanamo be closed within one year. The executive order laid out three options as to how to deal with the remaining 245 detainees: try them, repatriate them or hold them in some other legal way.  We at CCR opposed a three option solution to Guantanamo. We believe there only two options: trials or repatriation. We oppose any form of preventive detention which is what Guantanamo is today. We oppose putting a legal wrapping on Guantanamo no matter where it is located or who does the wrapping. We remained hopeful that the third option, preventive detention, would not be a choice.   We may be losing that fight. On April 30th Defense Secretary Gates said that as many as 100 Guantanamo detainees could end up held without trial in the United States.  A day before Attorney General Holder had this to say in Berlin:

“We have to determine what would be our basis for holding that person that would to the world appear to be fair and that would in fact be fair,” he said. “How could you ensure that due process was being served by the detention of such a person?”

The answer Mr. Holder is you can’t.  All the due process in the world does not diminish the fundamental human rights violation in jailing someone, possibly forever, without charging or convicting him of a crime.  Big Brother may be alive and well in the new administration.

As another one of his earliest acts Obama suspended the military commissions at Guantanamo. He did so for a period of four months.  It was better than letting them continue, but not much better. For what was to come after the four months?  At CCR we were worried. Why did he not end them, get rid of them all together? After all, they were entirely discredited. In seven years there were only two minor trials and evidence derived from abuse and torture was still permitted. Why should there be any kind of special courts in a democracy with a 225 year history of regular trials in regularly constituted courts—U.S. federal courts. The main reason for special courts is that it is easier to convict people when the rules are made up after the fact: the rules are bent toward conviction.

In a depressing and infuriating revelation in the New York Times on May 2, the revival of military commissions is stated as almost a sure thing.  The reason according to some administration lawyers is that it would be difficult to prosecute defendants in regular courts because they had been brutalized and because prosecutors want to use hearsay evidence. That is some reason. Let’s just put it starkly. Such trials would be an abomination, an abomination approved by our new President. 

Although not directly related to Guantanamo, but one that could have an effect on the issues outlined above is the appointment of a new Supreme Court justice. I was dismayed to read all of the verbiage coming out of pundits that he will choose a pragmatist and not a “larger than life liberal.” Let’s hope it is not true and let’s try to make sure it won’t come to pass. Why did the Republicans with too much Democratic support (no filibuster) have no trouble shoving two arch conservatives down our throats?  I don’t get it.




Granting Immunity Makes Obama Complicit NYT Blog

Friday, April 17th, 2009

Michael Ratner is president of the Center for Constitutional Rights and author of “The Prosecution of Donald Rumsfeld: A Prosecution by Book.” Yes, it is good that President Obama ordered the release of four more of the torture memos issued by the Office of Legal Counsel during the Bush administration. The inhuman interrogation techniques those memos authorized which include waterboarding, walling (in which a person is slammed against a wall), confinement in a small box and sleep deprivation clearly constitute torture and other crimes under U.S. law. There is nothing abstract about the techniques: they are initially focused on one individual and even discuss his psychological weakness in language similar to the novel 1984 — although in this case, it’s bugs, not rats.

Since when did legal advice make torture into a lawful and permissible interrogation technique?

Yet President Obama goes out of his way to praise those who engaged in these unlawful practices and assures them they will not be prosecuted. In part, he asserts that the C.I.A. personnel were following, in good faith, legal advice. But since when did legal advice make torture into a lawful and permissible interrogation technique?

Torture is torture and all the legal window dressing in the world cannot hide its essence: the infliction of pain and suffering on human beings. If legal advice can protect torturers, no official anywhere can ever be prosecuted. Legal advice then becomes a get out-of-jail free card and will be employed by every petty dictatorship to protect its abusers.

In making the decision not to prosecute, President Obama is acting as jury, judge and prosecutor. It is not his decision to make. Whether or not to prosecute law breakers is not a political decision. Laws were broken and crimes were committed. If we are truly a nation of laws as he is fond of saying, a prosecutor needs to be appointed and the decisions regarding the guilt of those involved in the torture program should be decided in a court of law.

Prosecuting those involved in the torture program, particularly the officials who conceived, authorized and ordered the torture program is not “retribution” or “laying blame for the past” as President Obama says. It is about insuring that we will not again become a nation that employs in torture. The prohibition on torture should not be dependent on who is president or on the stroke of a pen. We prosecute those who break laws to deter lawbreaking. President Obama, by granting impunity to torturers, becomes complicit with their actions. History will not judge him kindly.



Leahy “Truth Commission:” An Excuse for Non-prosecution. Ratner DN! Interview

Sunday, March 8th, 2009

Excerpt of DN! Interview on “Truth Commissions.”    March 5, 2009

AMY GOODMAN: Human rights attorney Michael Ratner joins us now in the firehouse studio, president of the Center for Constitutional Rights, author of the book The Trial of Donald Rumsfeld, among others.

Welcome to Democracy Now! I want to talk about the secret memos. Let’s start with this hearing that has been called by Patrick Leahy, chair of the Senate Judiciary Committee, calling for an investigation into Bush administration crimes.

MICHAEL RATNER: You know, I won’t say I’m exactly biased here, but I think essentially that the Leahy commission is an excuse for non-prosecution. It’s essentially saying, “Let’s put some stuff on the public record. Let’s immunize people. And then,” as he even said, “let’s turn the page and go forward.” That’s really an excuse for non-prosecution. And in the face of what we’ve seen in this country, which is essentially a coup d’etat, a presidential dictatorship and torture, it’s essentially a mouse-like reaction to what we’ve seen. And it’s being set up really by a liberal establishment that is really, in some ways, in many ways, on the same page as the establishment that actually carried out these laws. And it’s saying, “OK, let’s expose it, and then let’s move on.”

And he even says, he says what we’re going to do with the truth commission is we’re going to look and see what mistakes were made. I mean, just ask the hundred people who were tortured in the secret sites about what mistakes were made, or ask the 750 people at Guantanamo, or ask the people at Abu Ghraib. This is not about mistakes. This is about fundamental lawbreaking, about the disposal of the Constitution, and about the end of treaties. So I think, actually, that Leahy’s current proposal is extremely dangerous. I call it the lame commission or basically an excuse for non-prosecution.

JUAN GONZALEZ: And you think that there’s no essential difference between him and the Obama—the White House position at this point?

MICHAEL RATNER: You know, I don’t think he would be out there without the Obama administration at least saying this is maybe a way to go. Look at, there’s a lot of pressure in this country right now for prosecutions. I mean, the polls indicate that people want to see a criminal investigation. We’ve had open—open and notorious admissions of waterboarding by people like Cheney. And we know that waterboarding is torture, even according to Obama.

So, how do you diffuse that pressure? And one way you diffuse it is you set up a, quote, “truth commission” that’s going to give immunity to people. And then, as Leahy himself says—the word he used, I think, is that he objects to those “fixated” on prosecution. Well, you know, it’s a legal requirement that you prosecute torturers in your country. And yet, he calls us “fixated” on it and wants to make this excuse. So I think this is, in a way—you don’t know this—but in conjunction with the Obama administration saying, “Let’s do this. It will dispose of, you know, the human rights groups in the world and others. And let’s go forward.”

JUAN GONZALEZ: And your assessment of these latest memos that the Justice Department has released, in terms of the further proof that they show possible criminal actions?

MICHAEL RATNER: I’m glad you said that, Juan, “further proof,” because, you know, we’ve known a lot of this from the beginning. You know, I remember, actually, six weeks after 9/11 writing an article called “Moving Toward a Police State (Or Have We Arrived?)” And we’ve certainly seen the effects of these memos. We’ve seen the military arrest Jose Padilla in the United States. We’ve seen them do that to al-Marri. We’ve seen torture. We’ve seen secret sites. We’ve seen warrantless wiretapping.

But what we see in these memos—and I recommend them to everybody, because you read these, you are seeing essentially the legal underpinnings of a police state or a dictatorship of the president. There’s no doubt about it. That’s what it is, and it’s not theoretical. These were the actual building blocks of what we had in this country for eight years, in which—and the one you mentioned when we opened, Juan, that what happened here was one of these memos said the military could operate in the United States, and operate in the United States despite the Posse Comitatus law, which prohibits the military from operating in the United States. And when it operates—this is really extraordinary—they can arrest and detain—“arrest” is not the right word—kidnap anyone they want and send them to a detention place anywhere in the world without any kind of law.

And then, on top of that, they can disregard the First Amendment. So this conversation we’re having right now, they could say, “Well, this is harmful to the national security of the United States”—that’s what these memos say—“this type of conversation is harmful, and we can ban this conversation.” And then they could put the military at the door to the firehouse and come in and say the Fourth Amendment, the one that protects us against unlawful searches, that the military could walk in here, search all of us and see if we have anything they don’t like on us. So, no First Amendment, no Fourth Amendment, no Fifth Amendment—essentially, the end of the Constitution and 225 years of constitutional history. In the face of this, this kind of memo, we’re seeing Leahy say, “Let’s see what kind of mistakes were made.”

AMY GOODMAN: Why was Posse Comitatus first put into effect, first passed?

MICHAEL RATNER: You know, that’s a good question. I don’t remember, Amy. It’s unfortunate I don’t remember. But it had to do—it goes back to our constitutional—the original convention, I mean, the original Constitution, that one of the biggest fears is that you don’t want the military operating in a democracy, because the military is not trained in constitutional rights. They’re trained to go in and kill and destroy, and that’s what they do in a country. And so, it was really—it came out of really the amendments that said you can’t quarter soldiers in your houses, all those kind—that kind of push that we don’t want the military enforcing law in this country.

AMY GOODMAN: Go on through the memos that have now been released.

MICHAEL RATNER: Well, I said that the key memo is this one that we’ve been discussing, this one that the military can operate in the United States. I mean, as I said, that’s really—you know, I used to talk about Fuehrer’s law when I talked about the President. Everybody thought I’m exaggerating. Fuehrer’s law is what the Fuehrer, Hitler, said; that’s the law. And what these memos do is essentially say that what Bush says is the law. So that’s memo number one.

There’s another memo here on extraordinary rendition. We’ve discussed it here before. That’s where you send people overseas for torture. You nab them or grab them in Pakistan or Afghanistan, send them to another country where it’s more likely than not where they’ll be tortured. And these memos go through why that may—the argument they make is that that’s not against the law, that the Convention Against Torture doesn’t apply and the anti-torture statute, you know, can be avoided by not having the intent to carry out torture. So they essentially authorize sending people—sending people for torture.

Then, two of the memos—and this is pretty interesting—actually concerned Jose Padilla. Jose Padilla, you remember, got off the plane in Chicago, the so-called dirty bomber, never charged with that, and when he’s in the prison, the military comes to the prison door. They knock. Maybe they knock. And they say, “Give us Jose Padilla.” And they grab him. This is in America. This is in the United States. And they take him, and for five years they put him in a military brig. Two of the memos justify and say the President had the power to do that to Jose Padilla, an American citizen living in the United States, that the military could come in—could come in and get him.

Then, a couple of these memos go to what—parts that we haven’t yet seen exposed, which I think will be a broad and vast intelligence effort in the United States, surveillance effort, done by the Department of Defense, under the auspices of these memos, to essentially surveil and look into what all of us are doing in the United States. That hasn’t come out yet completely, but it’s going to be in these memos.

And there’s another memo on the warrantless wiretapping that essentially says the commander-in-chief can carry out warrantless wiretapping as his commander-in-chief power.

And let’s look at what these memos were built on. You know, first you have the question of, are we at war at all? So, first you have this questionable proposition, this questionable proposition that the war against al-Qaeda, so-called war against al-Qaeda, or the global war on terror, is a war at all. Or shouldn’t this be really a legal operation in which people are arrested and charged? So, my position, of course, is this should have been done under law. But so, they first make a questionable assumption about war, and then, once they call it a war, they then say, “Well, the President’s the commander-in-chief, and under war, commander-in-chief power, he can do whatever he wants.” So even if this had been the Second World War, he couldn’t have the power that he’s asserting here.

I have to say that, you know, to see these memos, to put it into that they were actually instrumentalized—this is not just theoretical; this is what was happening here for eight years, essentially a dictatorship—and then to see the response of many of the Democrats here to saying, “Oh, let’s just expose it and turn the page,” I mean, what we’re saying is that’s the way it’s going to happen again, because unless you prosecute people, there is no deterrence for not doing this again. And it’s out there, it’s public. If you’re going to do a commission—and I’m opposed completely to the Leahy type—if you’re going to do one, you can’t bury the issue of prosecution. You have to appoint a special prosecutor and make sure a commission of inquiry works together, because a commission can tear up and finish up prosecutions by giving immunity.

JUAN GONZALEZ: And Michael, the prime author of these memos, John Yoo, what happened to him? He went back for awhile, left the Bush administration, went back to Berkeley, law school, to teach. What’s happened with him since?

MICHAEL RATNER: Well, first of all, I think that these memos, these most recent ones, shred any semblance, any scintilla of reputation that John Yoo ever had that he was, you know, doing something in essentially an honest way. I mean, this finishes his reputation. I think the only—the questions we’re faced with are, is he going to be disbarred, and is he going to be prosecuted?

And it’s interesting. You know, two of the memos, which I didn’t mention, were issued by Steven Bradbury, who was head of the office that John Yoo was formerly in, the Office of Legal Counsel. And those memos are the—they were done within a few weeks of the Bush administration leaving office, in fact, one within a week of him leaving office, essentially, in a relatively mealy-mouthed way, saying he cautions against looking at the Yoo memos, that they shouldn’t—the OLC doesn’t really agree with them anymore. But he has a footnote in there saying—to protect the John Yoos of the world—saying, “I think all of those prior memos,” referring to the John Yoo memos, “were done—did not violate professional responsibility,” because it’s recognized that currently there’s an investigation going on of John Yoo, and I think it’s very—and Bradbury, himself—and I think it’s very likely that that’s going to come out and say certainly disciplinary, if not disbarment, for those guys. So I think Yoo is facing that and, as I said, prosecution.

Now, his geographical travels, of course, have been—as you said, he went to Berkeley, which, as he described a couple of days ago at a speech in Orange County, is made up of a bunch of hippies and radicals. That’s his former law school, or it’s still his law school. And there’s been a push to get rid of him at the law school. I think he finally realizes he can’t stay there, so he’s teaching at some—I guess a very conservative law school in Orange County, which is, of course, the heart of law schools and others that are very conservative. So he’s slowly being cornered, slowly being cornered.

One thing I should say about Yoo and even about the Leahy hearings, the one—you know, while I think they’re a bad idea, I think one thing that could come out of them, which Rivkin, the conservative commentator, made a good point on—he says, “Look at, you’re going to expose the stuff on the record.” And then, while he didn’t use the name of the Center for Constitutional Rights, he said, “Then people are going to be able to prosecute these guys in Europe, because the evidence is all out there.” And that’s correct. As more and more information comes out and these memos come out, we’re going to continue to pursue efforts in Europe and pursue prosecution at home. The Center actually currently has a campaign, if people go to our website, to actually tell Leahy, “This is not enough. We want prosecution.”

AMY GOODMAN: Where is Donald Rumsfeld?

MICHAEL RATNER: Well, you know, he and Rice, right? They’re—you know, what is California? What is it? Like a magnet for right-wingers? You know, they’re both at the—what is it now?—on the campus of Stanford. What’s it called? The Hoover Institution? Yeah. So they’re there, or they’re going there, Rice and Rumsfeld, and they’re going to be some kind of scholars-in-residence at Stanford at the Hoover Institution. And there’s apparently a protest that was starting either yesterday or today objecting to that. So, you know, maybe we can all get them into a corner of Orange County and actually give them their own country and just put prison walls around it. You know, I’m not sure, Amy.

AMY GOODMAN: And are there other countries that are pursuing a possible prosecution against any of these Bush administration officials?

MICHAEL RATNER: Well, I think right now what’s happening is they’re going to wait and see what Obama does. If Obama doesn’t do anything in the next few months, I think there’s going to be a huge push in Europe. At the same time, there is stuff going on in Europe, and that’s—when there’s conduct or illegalities on the country itself, they don’t have to wait for the United States. So, you have an investigation, that we’ve talked about here, in Italy of the CIA agents going on who kidnapped an Egyptian cleric of the street. In Spain, you have a—

AMY GOODMAN: Explain that. You have CIA officers being tried in absentia in Italy.

MICHAEL RATNER: That’s correct. There were twenty-four CIA officers involved in a conspiracy to kidnap an Egyptian cleric off the streets of Milan. There’s an independent prosecutor in Italy who has been running a trial now for probably a year or more, in which testimony is being taken on what those CIA agents have done. I think there’s arrest warrants issued for a number of those people throughout Europe. So that’s one relatively successful effort in Italy. And again, if you look at it, they actually kidnapped someone and violated the sovereignty of Italy, so they went after them.

Spain, likewise, has an investigation going on with a court, a judge, because the rendition flights landed in Majorca, they landed in Spain. And so, Spain looked, and its territory has been violated. So that’s going on.

But I think, overall, what we’re seeing here is—I mean, from my perspective, we’re seeing actually more push for prosecutions than I actually expected, that the American public, it seems, is not really giving the sort of Obama line, “Let’s look forward and not backward.” Of course, to me, prosecutions is looking forward, because that’s how you prevent torture in the future. So I think we’re seeing a much greater push. I do think, though, that, as I want to say, that the combination of the memos and Leahy should just really send a message to America that we’ve got to make these guys accountable.

JUAN GONZALEZ: What about the—do you have any hopes for any more independent investigations going on in the House at all? Or in—

MICHAEL RATNER: Oh, I think that’s a good question. You know, I think Conyers has a better take on this than Leahy. Conyers does want a commission or an investigation set up, but his material also talks about accountability and prosecutions. I think if you had a commission here—not a commission; I would never call this a truth commission. I mean, this is not—this is not South Africa. This is not, you know, an emerging democracy from, you know, Chile or something. This is—supposedly was a functioning democracy. In that case, you don’t need, quote, “a truth commission.” What you need is a commission of inquiry that’s going to lead to prosecutions. And I think that’s much more what Conyers is looking for. I’m sure he’s in favor of prosecutions. And, you know, there’s a huge effort, a grassroots effort, out there, as petitions—hundreds of thousands of people have signed this stuff.