The Strange Case of Hiwa Abdul Rahman Rashul (Part 1)
[Today Emptywheel has a special treat in the form of a guest post from one of our very longtime commenters, William Ockham. Marcy alluded to this right before she left. WO really drilled deep into this story and has produced a great article. As the title suggests, there will also be a Part II that will delve into the implications. Give WO some love and participation in comments, and in light of the special nature of this post, please stay on topic for this one; if there are other issues, please feel free to use the previous post on the Bates Contempt Decision for those. Thank you. – bmaz]
In June 2004, Hiwa Abdul Rahman Rashul had his 15 minutes of fame when Secretary of Defense Donald Rumsfeld answered questions at a press conference about the detainee known to American soldiers only as Triple X, the first ghost detainee transferred from CIA custody to the U.S. military. Rashul was suspected of being a member of Ansar al-Islam, a violent Kurdish Sunni Islamist movement opposed to the dominant Kurdish groups of northeastern Iraq. The real story of Hiwa Abdul Rahman Rashul wasn’t his terrorist past or his time as a ghost detainee of the DOD, but his treatment by the CIA in between.
Part 1: Did the DOJ cover up what its own OLC ruled was a war crime committed by the CIA?
The Office of Legal Counsel in the Bush Administration’s Department of Justice has had a notoriously broad view of the Executive Branch’s ability to define our obligations under the Geneva Conventions. But if the OLC under Goldsmith and Bradbury decided that the CIA had engaged in a grave breach of the Geneva Conventions (and even John Yoo agreed), and the CIA OIG had made a criminal referral to the DOJ, wouldn’t you expect a prosecution? Recently released CIA documents suggest that such a referral was made, but no prosecution occurred. Perhaps the very public complicity of Donald Rumsfeld, Alberto Gonzales, and George Tenet played a role in the decision not to prosecute. But I’m getting ahead of myself. First, I want to make it clear that I’m using the term ‘war crime’ in the very narrow sense of a violation of U.S.C. § 2441.
The Crime
Return with me now to those thrilling days of yester-year, that is, the summer of 2003. Dana Priest (in a story from October 2004) and Jane Mayer (The Dark Side) are our narrators. Mayer’s account (in bold) appears to derive directly from Jack Goldsmith:
Hiwa Abdul Rahman Rashul, a suspected member of the Iraqi Al-Ansar [sic] terrorist group, was captured by Kurdish soldiers in June or July of 2003 and turned over to the CIA, which whisked him to Afghanistan for interrogation.
As he [Jack Goldsmith] awaited Senate confirmation in the summer of 2003, he received an urgent phone call from Patrick Philbin… Senior officials had to know right away if it was legal to move Iraqi terror suspects outside the country for interrogation… He was obliged to say he really wasn’t sure what the answer was.
In October, White House counsel Alberto R. Gonzales asked the Office of Legal Counsel to write an opinion on "protected persons" in Iraq and rule on the status of Rashul, according to another U.S. government official involved in the deliberations. [Mayer reports that the call from Gonzales came within the first two hours of Goldsmith’s first day on the job and that he was given until the end of the week to answer the question.]
Goldsmith, then head of the office, ruled that Rashul was a "protected person" under the Fourth Geneva Convention and therefore had to be brought back to Iraq, several intelligence and defense officials said.
The CIA was not happy with the decision, according to two intelligence officials. It promptly brought Rashul back and suspended any other transfers out of the country.
Therein lies the tale. The U.S., as the Occupying Power of Iraq, was forbidden from transferring "protected persons" to locations outside of Iraq by Article 49 of GC-IV. Article 147 declares violations of Article 49 as ‘grave breaches’. Any grave breach of the GC-IV committed by a U.S. national is a violation of the 1996 War Crimes Act (U.S.C 2441). These violations, unlike violations of Common Article 3, were not affected by the limitations and retroactive immunity provisions of the Military Commissions Act and the Detainee Treatment Act.
The Cover-up
What happened when Rashul was returned to Iraq only made things worse for the U.S. When the existence of ‘ghost detainees’ in Iraq came to light in the aftermath of Abu Ghraib, Rashul’s story came out and the U. S. government chose to respond publicly. In the words of Donald Rumsfeld, speaking publicly on June 16, 2004:
I was requested by the Director of Central Intelligence to take custody of an Iraqi national who was believed to be a high-ranking member of Ansar al-Islam. And we did so. We were asked to not immediately register the individual. And we did that… And we’re in the process of registering him with the ICRC at the present time.
Rumsfeld was being a little disingenuous about the process. Let’s pick up Rashul’s story as told by Edward T. Pound, writing for U.S. News and World Report:
Rashul was returned to Iraq on October 29 [2003]. On November 18, Lt. Gen. Ricardo Sanchez, the top U.S. commander in Iraq, issued a classified order directing guards with the 800th Military Police Brigade to hide Rashul. The order was coded "Flash Red," meaning, says one military source, that it was "hot." It says that Sanchez’s command "accepts custody and detains Hiwa Abdul Rahman Rashul, a high-ranking Ansar al-Islam member." The order required extraordinary secrecy. Rashul’s name could not be disclosed to the Red Cross or to a foreign government. It prohibited the Army from entering Rashul’s name in any electronic prisoner database.
Other requirements of the order include:
Rashul will "remain segregated and isolated from the remainder of the detainee population. Under no circumstances will his presence be made known to the detainee population . . . "
"Only military personnel and debriefers will have access to the detainee. . . . Knowledge of the presence of this detainee will be strictly limited on a need-to-know basis."
"Any reports from interrogations or debriefings will contain only the minimum amount of source information . . . . No source reference will be made to identify [Rashul’s] status, membership in Ansar al-Islam, or other terrorist group."
Despite all this secrecy, Rashul has been interrogated only once–and then only briefly, a Pentagon official says.
Despite claims from administration officials that the CIA and DOD ‘dropped the ball’ by failing to register Rashul, it seems more likely that there was never any plan to register Rashul with ICRC and expose the fact that a grave breach of the Geneva Convention had occurred. Rumsfeld’s statements (and those of his lackey Daniel Dell’Orto) implicate Rumsfeld and Tenet in a conspiracy to cover up this war crime. Unfortunately, Rashul’s story seems to drop off the radar after June 2004 just as quickly as it burst on the scene the day before Rumsfeld’s news conference. Even Dana Priest’s story from October 2004 and Mayer’s recent book don’t deal with any fallout from this episode after June 2004.
The Consequences (or lack thereof)
We’ve been left wondering what, if anything, happened. Until now. Thanks to the FOIA efforts of the ACLU, the Center for Constitutional Justice, Amnesty International, and Washington Square Legal Services, the CIA has been forced to release over 100 documents, most of them heavily redacted, about its ghost detention system. In addition, the CIA has released a Vaughn index of 250 representative documents (out of 7000) that they are withholding. Even with just this tip of the information iceberg, it is possible to trace the course of an internal investigation into the CIA’s ghost detention activities in Iraq and, more importantly, the OIG’s actions in the Rashul case.
The first document I want to highlight is an email from an OIG employee to John Helgerson, the CIA’s Inspector General (and a huge, redacted, CC list). [Side note: The CIA uses Lotus Notes, but when I quote from the emails I’ll use a standard format rather than trying to reproduce the idiosyncratic Notes interface. Also, the sender’s department is generally not redacted, even when the name is.]
Sent: 08/30/04 03:45 PM
From: [redacted] OIG
To: John L. Helgerson [other recipients redacted]
Cc: [Many recipients redacted]
Subject: Geneva Convention – Summary of relevant provisions
John, et al. – attached is a collection of provisions drawn from the Geneva Convention that governs treatment of civilians in occupied territories that I thought most relevant based upon my limited understanding of the INV [Investigation] Staff’s current work. I have included text from each of the selected provisions and explanations I thought useful drawn largely from a commentary published by the International Committee of the Red Cross a few years after the Convention was developed. I have tried to keep the summary short, but it is still imposing, and it is intended to be a starting point for understanding, discussion, and further research on the meaning and reach of the various provisions. [redacted] has been involved in researching the Convention and the two of us shall continue to develop background material for the investigations. Please let me know if you have specific questions that require further insight.
[redacted]
[Attachment – MS Word Icon]
Geneva Convention IV Summary.doc
The attachment is exactly what it says. It is a thirteen-page document formatted as a table in landscape orientation. Both the email and attachment came from paper copies (i.e. they have handwritten markings). The attachment has only one marking. On the next to the last page, in the entry for Article 147, Grave Breaches, in the phrase "Unlawful deportation or transfer or unlawful confinement of a Protected Person", the second occurrence of the word "unlawful" is circled.
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The next email I want to point out is also addressed to John Helgerson and sent 2 months later. It is probably by the same person as the first email, although the name is redacted on both.
Sent: 10/29/04 04:08 PM
From: [redacted] OIG
To: John L. Helgerson
Cc: [Many recipients redacted]
Subject: Geneva Convention Summary
John – At long last, I am sending you the attached memo in response to your request for a working summary relating the geneva convention to the matter of the ghost detainees. This may not look like much, but I have tried to keep it to bare minimum and avoid obscure Latin phrases, legal citations, etc. It may not stand up to scrutiny as more facts are developed, understanding increases, and the positions of OGC and the rest of the US Government become more clear. I am sure that [redaction of approximately ½ of a line] will be able to expand on and correct it, and to answer any follow-on questions you may have as a result. With that, and the soon-to-be-completed draft of an employee review policy, I will become a ghost employee.
[Attachment – MS Word Icon] [Attachment – MS Word Icon]
Geneva Convention Summary.doc Geneva Convention IV Matrix.doc
The Geneva Convention IV Matrix.doc is virtually identical to the file that was attached to the August email and is numbered with the same document tracking number as this email. Initially, I thought that the one page summary described in the email was missing, but it was included a few pages later in the document dump. All the issues raised by Rashul’s treatment are covered and, as you can see in this image, the words ‘individual’ and ‘mass transfers’ are underlined in the sentence describing Article 49.
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These two emails sent directly to Helgerson clearly indicate that the CIA IG is conducting a serious and consequential investigation. The synopsis of the Conventions is specific to the facts of Rashul’s case.
The final piece of the puzzle is delivered by a CIA redactor’s error. Two weeks after the second email to Helgerson, there was a heavily redacted email exchange between the CIA’s Office of General Counsel (OGC), and lawyers in the Counter-Terrorism Center (CTC/LGL) and the Near East Division (NE/LGL). The exchange turns up a couple of different times within the document dump. The whole exchange would have been incomprehensible except for the fact that the subject of the email appears eight times and it is only redacted seven times. The subject was ‘Hiwa Crimes Referral’. Hiwa is an unusual name so there is no doubt that this email exchange refers to Hiwa Abdul Rahman Rashul. Here’s the exchange, in chronological order:
11/10/04 05:28pm
From: [redacted] OGC
To: [redacted]
CC: [redacted]
Subject: Hiwa Crimes Referral
I have told the DCI and subsequently the DDO. I told them you would tell the CTC and NE management. I know that you will do it in a way that will be frank, realistic but not overly alarmist.
11/10/04 06:27pm (responding to the above)
From: [redacted] CTC/LGL
To: [redacted]
CC: [redacted]
[redacted] and I informed the D/CTC and DD/CTC.
11/11/04 10:49am (responding to initial email)
From: [redacted] NE/LGL
To: [redacted]
CC: [redacted]
Just want to sure that I have your okay to inform [redacted] of the matter. I think he is entitled to know, even though he is currently detailed outside the building.
11/12/04 08:07am (responding the request above)
From: [redacted] OGC
To: [redacted]
CC: [redacted]
OK.
There’s no evidence that the DOJ ever took action on this referral even thought it was important enough the CIA’s legal staff felt the need to personally notify, in a frank but not overly alarmist way, the new DCI (Porter Goss had just started less than 3 weeks before the referral), the DDO (head of the CIA covert operations directorate), the management of the Counter-Terrorism Center, and the head of the Near East division (the unit responsible for Iraq, Afghanistan, etc.). There’s also no declination of prosecution for this case, although the document dump includes one for another referral from the CIA OIG.
This leaves us with one very important question: On what basis did the DOJ refuse prosecution? This is as clear-cut a case of a war crime as you can possibly get. Rashul was an Iraqi national taken into the custody the ‘Occupying Power’ in Iraq. That makes him a ‘protected person’. There are no exceptions. Even spies and saboteurs have to be treated as ‘protected persons’ until they receive an administrative hearing. ‘Protected Persons’ can not be transferred to another country. To do so is a ‘grave breach’ and therefore a war crime under U.S. law. Under the Geneva Conventions, we have a positive duty to prosecute this crime.
Next up in Part 2, we’ll look at why this matters.
William of Ockham! Wonderful piece of detection.
Gosh, if there is one part of the system that seems to be working pretty well it is the FOIA requests.
I bet LBJ never realized the FOIA would be a major part of his legacy, but Bill Moyers is justifiable proud of his own role in getting it pushed through.
But FOIA is being weakened by Bush with intent to gut it further.
FOIA needs to be strengthened and modified such that NO President can redefine any part of it away, nor restrict it in any administrative way. It must be written to stand as an ABSOLUTE set of rules for information release that cannot be sidestepped by any creative or reinterpretive means whatsoever.
That was actually going to be my next question. How could Dick and Karl have missed FOIA?
A post by WO- alright! Great stuff to read w/the morning coffee. Thx for guest posting, & doing such a thorough write up on this important topic.
Off to read Pt. 1; looking forward to Pt. 2.
Wow. What a way to start the week. And I have no time to day to fish out my copy of “Ghost Plane” to follow along, either. [sigh]
I suspect they parsed the issue of territory with many transfers, relying not only on agreements that NATO and NATO-friendly countries authorized transit by air over their borders, but upon the notion that these same entities were also part of the same “territory.” With such a loosey-goosey understanding, there were far fewer ex-territory transfers, yes?
Save for those to Thailand, the Indian Ocean, Egypt and Mauritania…
[OT, semi-related — did anybody notice that little coup they had in Mauritania?]
The essential problem that had with this guy, in particular, was that he was an Iraqi captured in Iraq. We had very specific duties as the Occupying Power under the Geneva Conventions. This situation is as clear-cut as war crime gets. Not even Jack ‘Law of the Seas’ Goldsmith (h/t Bmaz on that name) could figure out a way around it. Believe it or not, John Yoo agrees with me on this one.
Rayne,
Please do check your copy of ‘Ghost Plane’. I don’t have that book and I’d love to know if there is anything that relates to this episode in it. In particular, does it record any information about rendition flights out of Iraq in the summer of 2003? Nobody seems to know exactly when Rashul was disappeared from Iraq.
Sorry to be so long in getting back — it’s that four-letter word, work, you know?
Re: Ghost Plane — Rashul is not mentioned that I’m aware of, can’t find any citation in index and I don’t remember reading about him.
But Grey provides all the dates, flight numbers, dep/arr info on ghost flights in an appendix, and there are several flights ex: Iraq during 2003 (none before that year, beginning in June that year).
21 jun 03 ORBS Baghdad to EDDF Frankfurt
03 jul 03 ORBS Baghdad to OAKB Kabul
06 sep 03 ORBI Baghdad to EDDF Frankfurt
21 sep 03 ORBI Baghdad to UTTT Tashkent
29 oct 03 ORBI Baghdad to LPPR Porto
17 dec 03 ORBI Baghdad to OAKB Kabul
Each of these flights is a single leg in a flight plan. The first one in Jun03, for instance, began in Washington, went to Frankfurt, then Kuwait; there is no recorded flight from Kuwait to Iraq in that plan, then the next leg is Iraq to Frankfurt, then home again jiggety-jig to DC.
Of course, there’s a chance Rashul was “ghosted” on a military transport rather than on a CIA plane; only had to dope him up, slap diapers on him, make him look like he was injured and ship him to Germany first, then transfer him in a doped-up state to a flight headed to Afghanistan.
Grey’s book also makes it very clear that in the case of non-Iraqis they were leaning heavily on the premise that some other entity would actually be in custody of ghosted detainees, even though flying on US-owned/operated flights and moving in many cases to US-owned/operated facilities. Plausible deniability and all that, you know? Even the planes might be denied as operated/owned by contractors.
Rayne,
Thanks. After your comment I found http://ghostplane.net. I’m fairly sure that Rashul was on this flight from Baghdad to Kabul:
And his return flight was:
William
Welcome to the weedy section of the Lake. It seems that you fit quite well here. Looking forward to part 2.
I’m half way through Jane Mayer’s book and all I keep thinking of while reading it is why aren’t these people in jail? It’s all laid out in print in a book for everyone to read, and the criminals are sitting in their offices or expensive restaurants having nice meals and toking on their cigars while they all should be behind bars.
WO has been here for quite some time
OT friends
It seems that Firefox is having insect problems. Malicious ones. Those using it might want to switch browsers until it’s fixed.
Good work.
Ace investigative reporting…
Great work, William!
Consider the following for evidence of a guilty conscience related to Geneva violations… none other than Cheney himself on Larry King Live! He called this a “war,” and he called them “prisoners of war.” GOT GENEVA CONVENTIONS?
Two years ago, Cheney appeared on Larry King. He stepped in it big time, but few people caught it. I alerted Rude Pundit and he wrote about it.
an excerpt:
Then Cheney made this statement: “In a sense, when you’re at war, you keep prisoners of war until the war is over with.” So, like, if, in a sense, the Gitmo campers are “prisoners of war,” then, in a sense, don’t they get Geneva Conventions protections?
Cheney and Gonzales have been playing a semantics game to justify torture, since “war” was never formally declared. It’s pretty obvious why they chose to embark upon the path of war without ever formally declaring it – so they could not be held accountable for the War Crimes they knew they’d be committing.
Bush tells us every day that we’re at war. Cheney and Gonzales tell us that we’re not REALLY at war.
Problem is, Cheney is on tape stating not only that we are at war, but that we are holding “prisoners of war.”
The Geneva Conventions DO APPLY, and Cheney is guilty of war Crimes.
http://transcripts.cnn.com/TRA…..kl.01.html
KING: They specifically said, though, it was Guantanamo. They compared it to a gulag.
D. CHENEY: Not true. Guantanamo’s been operated, I think, in a very sane and sound fashion by the U.S. military. Remember who’s down there. These are people that were picked up off the battlefield in Afghanistan and other places in the global war on terror. These are individuals who have been actively involved as the enemy, if you will, trying to kill Americans. That we need to have a place where we can keep them. In a sense, when you’re at war, you keep prisoners of war until the war is over with.”
So this is the war without end, and these prisoners will be held forever?
http://www.newyorker.com/fact/…..227fa_fact
New Yorker
From the article:
Yoo believed that the President’s role as Commander-in-Chief gave him virtually unlimited authority to decide whether America should respond militarily to a terror attack, and, if so, what kind of force to use. “Those decisions, under our Constitution, are for the President alone to make,” he wrote in a law article.
A top Administration official told me that Yoo, Addington, and a few other lawyers had essentially “hijacked policy” after September 11th. “They thought, Now we can put our views into practice. We have the ability to write them into binding law. It was just shocking. These memos were presented as faits accomplis.”
In Yoo’s opinion, he wrote that at Guantánamo cruel, inhumane, and degrading treatment of detainees could be authorized, with few restrictions.
“The memo espoused an extreme and virtually unlimited theory of the extent of the President’s Commander-in-Chief authority,”
So this same approach was used across the board. Addington effectively sought to obtain “legal opinions” which were in fact illegal, with the specific intent to provide Bush and Cheney with sufficient legal cover to behave as Dictators and Kings, as there were virtually no laws that applied to them, as determined by edict.
This is where we stand today. There is not one single law that applies to Bush or Cheney. They have found lawyers who were willing to craft opinions stating that they were above the law, and in so doing, have subverted the Constitution of the United States.
This activity was intentional, willful and treasonous.
They were sworn to uphold the constitution.
Given this information, others in a position to do something about it (who also swore under oath to protect the Constitution against all enemies Foreign and DOMESTIC) now have an obligation to fulfill.
They must call for the impeachment of this administration. It is their legal obligation given the evidence before them.
Given that Paraguay does not have an extradition treaty, it’s clear that Bush’s acquisition of property there is in anticipation of being pursued for his war crimes.
Any decent president who respected the Law, upon receiving Yoo’s memo(s), would have immediately called up Yoo and told him that however cute his logic was that he was FIRED.
That idea probably never entered Dubya’s pea-like brain.
WO,
Excellent investigative work. Thank you.
Boy, was that telling language…
second “unlawful” circled
Yep. Agree.
Downing St. Memos and Nuremberg: Illegality of the Iraq War
My most recent article on The Last Ditch website is “The Downing Street memos and Nuremberg: The illegality of the war on Iraq” at http://www.thornwalker.com/ditch/snieg_downing.htm which presents how the US attack on Iraq was illegal by the standards of the Nuremberg trial and current international law. While this was pretty obvious before the release of the Downing St. memos, those leaked memos confirm it completely.
Some excerpts:
The American Establishment has conventionally praised and invoked the 1945-46 Nuremberg trial of the Nazi leadership as a model for bringing international criminals to justice. But what if the same standards applied at Nuremberg were also applied to current U.S. policy? And a parallel trial were convened? In such a proceeding, would American leaders fare any better than the captured German leadership?
When people today think of Nazi criminality they think of the mass extermination of Jews: gas chambers, human soap, millions of bodies turned to ash in factory-like death camps. But the fact, which has largely been tossed down the memory hole, is that the extermination of Jews was not the fundamental Nazi crime cited at Nuremberg. Nor was it even the murder of noncombatant gentiles in addition to Jews. Rather, the major crime was the making of “aggressive war” — also referred to as “crimes against peace.”
It is plain, then, that people knowledgeable about international law considered the attack on Iraq to be illegal long before the Downing Street memos came to light in 2005. But the leaked memos further confirm the war’s illegality.
First, they confirm that the Bush administration had decided to attack Iraq and overthrow Saddam before Blix’s inspectors ever set foot in Iraq. In short, not finding any WMDs would not prevent a U.S. attack
But no matter how positively the United States advertises itself and its motives, it has violated the same precepts of international law for which the Nazi leaders, and even some men who were not among the chief leaders, were severely punished. Not to worry, though: the United States can get away with its violations of international law. Unlike Nazi Germany, it has yet to be conquered by its enemies.
But none of that is of any importance to America’s current leadership . . . . Judging from the American example, we must conclude that the only punishable “crime” in the struggle among nation-states is to lose a war.
In light of that rule, it is easy to understand why other countries scramble to equip themselves with the most powerful weapons they can lay their hands on.
For the entire article see: http://www.thornwalker.com/ditch/snieg_downing.htm
So, the individual who did the redactions on these docs is party to the crime.
Not really. In researching this post, I found an interesting link to article in which a CIA redactor discusses the process and technology they use. I’ll dig up the link in a bit. In all likelihood, the person doing the redacting was focused on the requirements of the FOIA statute, not the Geneva Convention.
On the other hand, there is the possibility that the redactor is something of a hero, if the ‘error’ was really a bit of bureaucratic warfare by someone who wanted the story to come out. I hope I don’t get that person in trouble with this comment.
Here’s the article I mentioned about redaction. The technology part is:
A “thank you” then to the redactor… a hero of sorts…history made by a redactor…
Again, great work WO.
Guess we need to keep eyes open for quick firings and demotions over the next few days…
That individual seems to have missed one most significant line.
(I’m not qualified to judge who can redact what, although like almost everyone else by now, I think the epidemic of overclassification has got to be checked somehow.)
Signing statements, redacting, delaying without reason, mis-remembering,
talking in circles, using knowingly false legal opinions to assert
bullshit, deleting e-mails, commuting sentences to protect one’s arse, thumbing your nose at Congress, and failing to impeach, are all fucking criminal activites in a democratic and civil society, in my opinion….
Bush Seeks Immunity for Violating War Crimes Act
http://www.warcrimeswatch.org
Published on Friday, November 3, 2006 by The Nation
War Criminals, Beware
by Jeremy Brecher and Brendan Smith
On November 14 a group of lawyers and other experts will come before the German federal prosecutor and ask him to open a criminal investigation targeting Donald Rumsfeld, Alberto Gonzales and other key Bush Administration figures for war crimes. The recent passage of the Military Commissions Act provides a central argument for the legal action, under the doctrine of universal jurisdiction: It demonstrates the intent of the Bush Administration to immunize itself legally from prosecution in the United States, even for the most serious crimes.
The Military Commissions Act of 2006, which the President promoted and recently signed into law, provides retroactive immunity for civilians who violated the War Crimes Act, including officials of the Bush Administration. Such an attempt to provide immunity for their crimes, it will be argued, is in itself evidence of an effort to block prosecution of those crimes. Indeed, according to Scott Horton, chair of the International Law Committee of the New York City Bar Association, when Yugoslavia sought to immunize senior government officials, the United States declared the act itself to be evidence of such a conspiracy.
“The United States declared the act itself to be evidence of such a conspiracy.”
“The United States declared the act itself to be evidence of such a conspiracy.”
“The United States declared the act itself to be evidence of such a conspiracy.”
Pot, meet kettle.
William Ockham, I always seek out your comments. It’s great to see a post.
http://static1.firedoglake.com…..erline.gif
Underline
Me too.
EW sure knows who to leave in control of her blogroom (learn so much here. Thanks again to WO and BMaz. Have all ready spread the last two post by the two of you.
ARCHITECT OF WAR CRIMES – Alberto Gonzales
The concerns raised about Gonzales relate primarily to his role in the formulation of the Bush administration’s position on two key aspects of the “war on terror”: the decision not to apply the Geneva Conventions to the conflict between the United States and al-Qaeda, and a memorandum from the Justice Department’s Office of Legal Counsel that set out a highly permissive interpretation of the laws relating to torture or coercive interrogation by government agents.
At the beginning of 2002, the Bush administration was in the midst of a fierce dispute about the legal framework that should govern suspected terrorists seized during the war in Afghanistan – the first of whom had already been sent for detention and interrogation at the Guantanamo Bay naval base. On January 25, Gonzales sent a memorandum to the President arguing in favour of a determination that the Geneva Conventions of 1949 – the cornerstone of the law of international armed conflict – were not applicable to U.S. military operations against al-Qaeda or Taliban fighters. Gonzales argued that the advantages of a decision not to apply the Geneva Conventions were that it “preserves flexibility” and “substantially reduces the threat of domestic criminal prosecution” for actions taken by U.S. troops or other agents.
Elaborating these positions, Gonzales wrote that the war against terrorism was a new kind of war that placed a premium on “the ability to quickly obtain information from captured terrorists…and the need to try terrorists for war crimes such as wantonly killing civilians.” He added that in his judgement, “this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners.”
Gonzales also argued that it would be advantageous to reduce the likelihood of U.S. forces being prosecuted “by prosecutors and independent counsels who may in the future decide to pursue unwarranted charges” under the War Crimes Act (the domestic statute that criminalizes violations of the Geneva Conventions).
http://www.crimesofwar.org/onn…..zales.html
Law Of War Torture Memos analysis
The people who did this knew it was illegal. The Nazis established the Nacht und Nebel program to move trouble-makers and resistance fighters from occupied countries, including Poland and France, to Germany, where they disappeared into labor camps and concentration camps, or were just killed. The point of the program was to frighten the people in those lands. The lawyers part of the Nuremberg trials includes a detailed discussion of this matter, and the lawyers were convicted for war crimes because of their participation. This is from the Alstoetter Case (I can’t give a good cite):
The German Army refused to participate, because the commanding officers were unwilling to violate the laws of war.
Exactly. I’m afraid people will look at this and think it’s like getting Al Capone on tax evasion. On the contrary, this is a war crime for good reason. It’s part and parcel of the evil (I just don’t have any other word for it) that is torture, illegal detention, and oppression.
W.O.
Folks like you, EW, BMaz and others here give me hope and respect for the rule of law. Thank you.
“any grave breach of the GC-IV committed by a “U.S. National” is a violation of the 1996 War Crimes Act (U.S.C. 2441)
“only military personnel and debriefers will have access to the prisoner”
I clearly remember Col Janis Karpinski stating that the “debriefers” that she saw at Abu Gharib were outside torture “contractors”
If the individuals moving these prisoners of war (or those interrogating and torturing these POW’s) (refuse to use the Bush administrations revised term for POW’s) were not “U.S. Nationals” this would seem to complicate holding those responsible for the war crimes accountable.
By having outside “contractors” remove prisoners from the country they were captured in and outside torture “contractors” conducting the interrogations. This firewall appears to have protected those up the line damn well?
Col Karpinski
http://www.democracynow.org/20…..ormer_head
“But if the OLC under Goldsmith and Bradbury decided that the CIA had engaged in a grave breach of the Geneva Conventions (and even John Yoo agreed), and the CIA OIG had made a criminal referral to the DOJ, wouldn’t you expect a prosecution?”
IF THE DOJ WERE APPLYING THE LAW TO THESE INDIVIDUALS THE WAY THEY APPLY THEM TO THE PEASANTS OF THIS COUNTRY. ONE WOULD EXPECT A “PROSECUTION”
Is it too much to expect “equal justice under the law”? Sure as hell looks like it.
Recently released CIA documents suggest t
OT: Musharraf resigns. Haven’t read post yet.
WO
A dear friend Peggy Gish is still in Iraq. She has gone back and forth to Iraq since before the invasion (accumulative time on the ground there close to four years). The group she is there with “Christian Peace Maker Team” began to interview Abu Gharib prisoners (released) and family members of prisoners the summer of 2003. On Peggy’s first return she talked about the reports the CPT team had put together and how they had gone to U.S. military officials during the summer of 2003 with these reports only to be completely brushed off by the U.S. military. On her first return trip I was able to get her on Talk of the Nation (as a 20 minute guest) and on the Diane Rehm show as a call in on a program that Seymour Hersh was the guest. Hersh began to use the CPT information and reports in his articles.
Wonder how much the CPT team heard about these “ghost flights” and “ghost
prisoners”
The Christian Peacemakers Team, a U.S.-based advocacy group, documented 72 cases of abuse at U.S.-run prisons in Iraq between May 31 and Dec. 20. It reported its findings to L. Paul Bremer III, the occupation’s top civilian official, in a letter dated Jan. 9 and to Lt. Gen. Ricardo Sanchez, commander of military forces, in a letter a day earlier.
ACCORDING TO PEGGY THEY TRIED THEIR BEST TO HAND OVER THEIR FINDINGS MUCH EARLIER THAN THIS
http://articles.latimes.com/20…..fg-abuse18
http://www.motherjones.com/com…..akers.html
I have enormous respect for the CPT folks who demonstrate the courage of their convictions in a very profound way. I have no doubt that U.S. military officials tried to dodge them. They played the same games with ICRC.
Peggy and Art Gish both members of CPT are two of my heroes ( I feel honored to know them personally). They have renewed my faith that there are really “walk your talk” Christians out there in the world. Not the ones who hide behind a cross around their necks and scream “kill them all” (have witnessed this too many times to count)
Peggy and Art have stood in front of our court house for 25 years in Athens Ohio. Standing up for peace in the middle east. Art has been to Israel around 15 times with CPT and Peggy well her story and her actions bring tears to my eyes and inspire many of us who know her and CPT’s work.
Peggy was in Baghdad when the U.S. invaded Iraq
Peggy was also kidnapped in Iraq (those of us in Athens who were aware that Peggy had been kidnapped were asked not to talk about this for months until Peggy was willing to talk about the kidnapping)
She looked into the eyes of her captors and said “that she would forgive them”
Peggy and CPT Be Not Afraid
http://2007.soulofathens.com/#story/BeNotAfraid
http://2007.soulofathens.com/#story/BeNotAfraid
Had a chilling thought as i read this:
In the waning days of this administration, as we’ve seen memories fail to recall who did what and when, and email systems experience missing data from key periods, I fear that those ghost detainees not yet accounted for will be “deleted” like so many troubling email messages or documents. Life is cheap to these people. And laws are meaningless because they believe they know better than the rest of us.
Cheney called it “work[ing] the dark side, if you will”.
Excuse me. Have to hurl.
“Fixin’ a traffic ticket. No harm, no foul, nobody got hurt. That’s how we’re gonna look at this. Right? Now tell Judy to type her pretty little ass off, Scoot.”
Even imagining Dickie Cheney’s perspective on such matters makes the gag reflex work overtime. It makes one think that all state bars should review the licenses of every lawyer still working for George W. Bush. Because there’s are differences between zealously representing a criminal defendant, aiding and abetting the commission of a crime, and between that representation and demonstrating a complete disregard for the law and legal profession. That the likes of Alberto Gonzales will never recognize it almost proves the point.
Morning folks. Truly wonderful post WO. Very nice. I have inserted a brief introduction at the top, but want to remind everyone already here to stay on topic here. if there are other issues, please feel free to use the previous post on the Bates Contempt Decision for those. And that, ahem, means you too Plunger. I don’t want you to suffer the unfortunate fate of the “host”, who didn’t quite seem to figure out the program.
Thanks everyone, and don’t forget to give WO some love with that Digg thingy. Marcy and I really don’t bother with that usually – for one thing, it seems uncouth to ask for yourself; and for another, it simply isn’t necessary on every post – but WO has a special piece here, and it is exclusive to EW. We really want to get word out and about so as to get this story picked up. Thanks again for the sterling job i know you all will do in discussing this.
So we have lawyers who know a crime has been committed? Do not lawyers have the legal obligation to report a crime?
And how would one do that in a “frank, realistic but not overly alarmist” way?
There’s a line for the ages.
I should have added, the same lawyers are aware of the fact that after criminal referral was made, prosecution did not happen. Why did the same knowledgeable lawyers not go public about this?
not when they take an “allegiance” to the “barnacle” branch, instead of the constitution
Great post, WO!
This kind of digging through FOIA-dumped documents reminds me of the Kremlinologists in the 1970s and 80s trying to decipher the internal political disputes in the Soviet Union by watching who was standing next to whom (or who was *gasp* missing . . .) on the platform at various parades and state events.
From the post:
Does the absence of DOJ action on this *also* constitute a war crime, per the GC, by making certain individuals within the DOJ active participants in covering it up? That is, does a failure to prosecute a war crime when it comes to the attention of the Powers That Be constitute a separate war crime?
I think the absence of a prosecution is more likely to be viewed as evidence that the American government is unwilling or incapable of making available a domestic process through which the aggrieved can seek justice, making it easier for a foreign state or international tribunal to assert war crimes jurisdiction.
Bmaz has often said that the odds of a foreign war crimes prosecution being successfully launched are nil. Scott Horton is not so convinced, though the odds are quite low because of the US’ continuing, if depleted reach. These crimes have long statutes of limitation, some, like murder, have none. With the return of a multi-polar international world — Russia, obviously, China, Brazil, India and the EU — conflicts that the US could have once swatted away will take more concerted effort to contain. Some may just be ten pounds of manure in a five pound bag and prove too much for the stitching to contain.
Peterr,
I’ll address this at more length in part 2, but you raise an important question. We really need to know more about what happened in the Justice Department with this referral. I’m certainly not a lawyer, but I would think that prosecutorial discretion is more limited in a case like this because the Geneva Conventions include a specific positive duty to prosecute war crimes. The CIA OIG made referrals with respect to violations of the Convention Against Torture, but there were OLC opinions which, no matter how specious, served as a reason not to prosecute. They don’t have a ‘golden shield’ in this case.
A pleasure to read your post here, WilliamOckham. Thank you.
As I understand it, WO, LHP and bmaz weigh in, prosecutors have considerable discretion in determining which crimes to prosecute. Locally, that might range from traffic tickets to the murder of a city council member. The latter is likely to be prosecuted by a top hand, the former dealt with administratively or bargained out.
Above-the-table issues include time, staffing and budget, difficulty of obtaining evidence, its age and reliability, etc. Informal issues include the ambitions of the prosecutor and those affected by a prosecution — or the refusal to have one.
In this case, it doesn’t take much to imagine David Addington, working for a constitutional cipher but the political heavyweight of this administration, breathing down the neck of a Gumby-like, nerve-wracked-because-over-his-head Alberto Gonzales. He, in turn, would have undoubtedly pressured Ashcroft to keep a lid on all this — in the interests of “national security” sayeth the shadow man lighting up a filtered Morley.
Can’t have some snotty nosed wet Republican prosecutors making public our snatch-grab-and-torture policies, much less the “useful” intelligence thereby obtained. Nor could we allow — in an election year, no less — the washing of our dirty linen in public (unless Karl can make it look like it’s the Democrats’ silk drawers).
All of which suggests that Mikey Mukasey’s finger in the dike holding back the flood waters of this administration’s malfeasance and illegality, ought to be getting cold, wet and inadequate. Something tells me his retirement is likely to be as fraught as Dickie Cheney’s, but a lot more sleepless.
Dugg.
Excellent work, William. Thanks.
Will the next Department of Justice have access to the clean emails?
We are witnessing a contempt for international law and American national law by corporate fascists at the helm, even in light of warnings by dutiful Americans. The corpo fascists empowered by America’s oil addiction will stop at nothing to protect their way of doing business. This is driving all we see, the perpetuation of the fossil fuel produced energy.
The sad reality is we are all enslaved when energy is treated as a commodity to be controlled for profit by interests who while turning a blind eye violate well settled law in the lust for profit and power, at all cost! The application of Occam’s Razor to the present set of facts as laid out by WO can lead to only one conclusion?
“Rashul was suspected of being a member of Ansar al-Islam, a violent Kurdish Sunni Islamist movement opposed to the dominant Kurdish groups of northeastern Iraq.”
http://uk.reuters.com/article/…..5320070908
“The deal covers exploration activity in the Dihok area, and Hunt Oil Co. of the Kurdistan Region will begin geological survey and seismic work by the end of 2007 and has plans to drill an exploration well in 2008, a statement from the Kurdistan Regional Government said.”
Was Rashul removed from this Kurdish area for his continued presence represented an impediment and potential threat to Hunt Oil’s interests in the Kurdish area? Could this have been the motive, which has resulted in the alleged and if true egregious violation of U.S.C. § 2441?
Google this: “hunt oil company Dihok area” A few hits!
http://www.google.com/search?q…..=firefox-a
Hunt Oil
Hunt Oil Company is a leading independent energy company, with oil exploration … contract covering exploration in the Dihok area of the Kurdistan Region …
http://www.huntoil.com/ – 2k – Cached – Similar pages
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[PDF]
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File Format: PDF/Adobe Acrobat – View as HTML
(KRG) together with Hunt Oil Company of the Kurdistan Region, … Sharing Contract (PSC) covering petroleum exploration activities in the Dihok area of the …
http://www.huntoil.com/webshare/press…..ract07.pdf – Similar pages
More results from http://www.huntoil.com »
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UPDATE 1-Iraq Kurdish region signs oil deal with U.S. Hunt …
Sep 8, 2007 … The deal covers exploration activity in the Dihok area, and Hunt Oil Co. of the Kurdistan Region will begin geological survey and seismic …
uk.reuters.com/article/oilRpt/idUKL0865925320070908 – 62k – Cached – Similar pages
Iraq seen abandoning most short-term oil contracts (back to those secret energy policy meetings by Cheney’s “barnacle” branch)
http://www.guardian.co.uk/busi…..le/7732082
http://www.guardian.co.uk/worl…..inians.oil
http://www.alsumaria.tv/en/Iraq-News/1-21329-.html
Great post (and bmaz, same for the last couple of posts).
This is on a topic that has been making me nuts for years now. This is why we now have such a difficult issue re: GITMO and why we have perfected the Kangaroo hearing for the tens of thousands we’ve stuck into concentrated popluation camps in Afghanistan and Iraq.
But I think you need to modify a bit on whether or not Cap’n Jack truly determined there was a war crime involved, or whether he anted up in the Strip The Law of Meaning poker game.
The known “draft memo” from March of 2004 on Article 49 and the ability to disappear protected persons into black site torture interrogation bears Goldsmith’s name. Apparently someone came up with the weasel route (the circling of “unlawful that you note above seems consistent with that as well) that, as long as OLC says it is legal to violate Article 49, then it isn’t “unlawful” to violate Article 49 for the purposes of “grave breach” and “war crimes” determinations. And what better hero to push paper to cover up crimes than Goldmsith?
So suddenly there appears a memo where Goldsmith says sure, since they’ve already done it so I’ll say it’s ok, but then I’ll play both sides by saying that they can’t keep ‘em long. The man must be a magnet for hats and rabbits, not necessarily in that order.
But this story broadens out far beyond just Rashul. When you mention, correctly, that even spies have to be treated as protected persons until they receive an administrative hearing – that lays bare the GITMO problem. Everyone was shipped without such hearings in their places of original detention. Only years later did someone think of rigging up some “Combatant Status Review Tribunals” to hold at GITMO, not at the place of detention, to try, like Goldmsith’s memo tried, to cleanse the crime.
This is why everyone at GITMO *had* to be found in their CSRT to be guilty of being an enemy combatant and why they just conducted a new CSRT to get the needed determination in the few instances where they didn’t get the result they wanted originally. The furthest they would ever go was to find someon “no longer an enemy combatant”
This is why the Democrats in Congress were so appalling in their willingness to both suspend habeas for those at GITMO, and more shockingly even than that – to statorily declare that the CSRT determinations from the kangaroo hearings were irrebuttably conclusive as to status.
And this is why the DC Appeals ruling on the Uighur case has some really significant ramifications. Becuase the circuit court held, unanimously, that the plaintiff there had NEVER BEEN A COMBATANT.
That means there was an Article 49 violation and a war crime committed when he was shipped to GITMO. Even with as much and as many cover ups as they have tried to cook up on the actual abuse that occured after the original war crime (the shipment) and the difficulty that victims may have in establishing that treatment, the shipment speaks for itself on the crime.
So the real reason for the reluctance by gov to allow names to be released becomes much more apparent. If they could only have kept secret who they had there as well, before dumping some of them back (like el-Masri) or handing some of them off for proxy torture (like Arar) or permanently disappearing them (like KSM’s children) or killing them (like the ‘young detainee’ frozen to death referred to in one of Priest’s stories), the could have disappeared the evidence of that proves the Article 49 war crimes.
Not to worry, though. Obama wants to be sure and let bygones by bygones. So it doesn’t matter how well anything is laid out or spelled out. The Democratic presumptive has made it pretty clear that he buys into the Republican posit that Justice is a political whim.
What Mary said. And what she said @53 too. You may already be familiar with my impression of the good Captain Jack, He of the Law of the Sea, Goldsmith……
Mary, do you have a link to the March 4, 2004 draft memo?
It’s discussed in the Dana Priest article I linked to in the post:
http://www.washingtonpost.com/…..ge=printer
I don’t think the opinion has ever been released.
Thanks, Mary…This helps clarify my question: Why isn’t each and every transfer of a ‘protected’ individual from one country to another a violation of Article 49…a war crime?
The key fact in Rashul’s case is that the U.S. acknowledged that it was an ‘Occupying Power’ under the meaning of the Geneva Conventions. Occupying Powers have very specific duties and responsibilities to the people of Occupied territories.
So in Iraq the Bush administration spends in one month what they have spent in Afghanistan in six and a half years.
One of the Fulbright Scholars (from Afghanistan) father (who fought against the Russians and is up the line in the military in Afghanistan) believes that the Bush administration has no desire to really help in Afghanistan.
You raise important points. The Bush/Cheney Administration claim that the whole of the Geneva Conventions don’t apply to Afghanistan is the real danger to them from the standpoint of international tribunals. If that defense crumbles (and it’s pretty weak), they are on the hook for the systematic criminal regime they instituted there. I wonder if the ICRC ever ventured an opinion on whether the U.S. was an Occupying Power in Afghanistan.
I disagree with you about the draft OLC opinion from March 2004. Goldsmith says it was never officially issued and, for once, I believe him. There’s a mass of circumstantial evidence that leads me to believe they never got an OLC opinion justifying the transfer of Iraqis to anywhere outside the country.
From what I heard from the Fulbright scholars from Afghanistan that I was able to have several years of conversations with. The majority of the people of Afghanistan sure feel that the U.S. is an occupying force.
These students said that the government of Afghanistan asked early on for documents proving that OBL was responsible or involved in s 9/11. According to these students no documents have ever been received by the Afghanistan government from the Bush administration having to do with these requests
You must consider that the government isn’t just carrying out a one-dimensional policy of getting the guys who got us.
Getting rid of the Taliban allows the poppies to start growing again and when drugs enter America the Republicans can arrest and convict poor stupid black drug dealers & users who will never be allowed to vote for a Democrat. That’s a long-term policy which impoverishes the world for their small, but very important, political goal.
The world is very much in turmoil because of the economic-political fight for power in America.
If we left Afghanistan and the Taliban returned to rule, then the poppies fields would be razed. If we left Iraq, then there’s no telling how much oil they might produce and sell for Euros, thereby destroying the dollar and decreasing oil prices to ruin the profits of Exxon. If we don’t have a president who takes us to war, then how are they ever going to use up all the military equipment to make room for new purchases which enrich the military industrial complex who give soooo much campaign money to Republicans.
None of this is an accident or because of stupid people. There are connections to political goals.
This stance by Obama and many Republicans and Democrats will not work unless they are satisfied with a spiritually and morally bankrupt nation. That may be the case. “ghost flights” for a nation filled with a ghost.
forgot to add “economically” bankrupt
49 – and FOIA is and remains subject to manipulation by a corrupt AG. Ashcroft started to cover up ball rolling by redefining how FOIA would be treated.
In what universe is the legal analysis of legal opinions “classified?” And notice that no one anywhere has ever been associated with being the “classifying authority” on the Yoo memo’s released this year. DOD’s acting Gen Counsel anted up as the declassification authority, but Congress has never hauled his butt up to tell them who classified to start with and thereby prevented those memos from seeing light for years?
Later days – excellent post though.
wow
WilliamOckham
patriot
nuff said
Oh now you show up. So, where were you a couple of days ago when we had to clean some mess out of the aisles and straighten up the house?
OT: Emptywheel, Glenzilla, and others have been poking huge holes in the FBI’s case against alleged Anthrax assassin, Bruce Ivins. But, per today’s Glenzilla:
And so the empire strikes back.
Oops! Apologoes, bmaz. I posted that comment before I read your stay-on-topic request.
This lame response comes from the biggest “conspiracy theorists” in the world, the Bush administration thugs and lackeys. The liars who brought the world the false WMD intelligence that was stuffed down the throats of the American people via our MSM’s airwaves, Niger Documents, and the UN presentation by Colin Powell.
The biggest conspiracy theory of the century (so far) WMD’s in Iraq
Also, notice that Priest’s article came out on October 24, 2004. The second email to Helgerson that I quote in the post is date October 29, 2004. In part it says:
If the March 2004 memo was still a draft at the time of the Wapo article, I really doubt that it could have been finalized before the referral was made on Nov. 10, 2004.
Sweet!
second “unlawful” circled.
Well done Ockham, but I think you missed an important point which makes even more clear the gravity of both the violations and of the coveraup. (I haven’t read the comments, so if I reprise what someone else said, please forgive me….)
You say (my boldface):
The rub is this: registering a prisoner with the ICRC and allowing the IRCR access to the prisoner is not only “standard operating procedure”, but it is also, under Geneva III and Geneva IV, required. I reproduce relevant articles from Geneva III and Geneva IV below the break-line.
Thus, the mere decision to “ghost” any detainee would be a violation of Geneva III or Geneva IV (depending on whether the detainee was a prisoner of war – Geneva III – or a non-military person taken into custody in an occupied country – Geneva IV) ab initio. Given the conditions under which the detainee in question was held and the reasons for “ghosting” him – to facilitate extended, secret interrogation by, among things, manipulating his food, water, sleep and other conditions of confinement, and the occasional trip to the waterboard for some torture, all being done in the former penitentiary of Abu Ghraib – “ghosting” him was a war crime from jump.
Moreover, the order to “ghost” him had to be given in the way it was given because it goes contrary to the entire machine the military had built (pre-Bush II), regarding treating prisoners and detainees. The military system was designed to operate to effect the many provisions of the Geneva Conventions and all the soldiers had been trained to perform according to them. Under Bush, they were being required to violate their training.
So, I think you need to delve a little more deeply into the circumstances and such….
Sorry for the long comment, but I think you’ll find it helpful.
–
This is an important point. I wonder if there is some weird theory out there that the CIA isn’t bound by the Geneva Conventions? That might explain something I never understood about the Detainee Treatment Act, which doesn’t restrict the CIA.
Hard to see how Bush gets there, since the Geneva Conventions bind countries, not just their governments or individual agencies of them.
I should also have said, however, that the US position is that the GC’s are not “self-executing”, do not create enforceable individual rights themselves, but require implementing legislation to create such rights. Hence, it would be US legislation, such as the 1996 War Crimes Act that creates enforceable rights and obligations. That may be true for individuals, but as I say, it’s hard to see how that could let individual agencies of a government off the hook without violating the treaty(-ies).
If there were such a “weird theory” out there that the CIA somehow was not covered, the following would be true:
(1) the theory would not be worth the paper it’s written on, since
(2) The Conventions still would apply, because the US military was being directed to participate in illegal treatment.
That provision was lobbied in by Cheney himself.
The DTA and MCA, like the FISA Amendments Act, are bizarre patchworks of loopholes hidden among verbage that appears to strengthen the prohibitions against evil. All three are exercises in deliberate obfuscation. But there is some question as to how good those loopholes really are.
And, with the recent elections in Paraguay, BushCo’s options are diminishing.
The CIA’s Office of General Counsel certainly believes that the Geneva Conventions apply to the CIA. David Addington, not so much.
Well, yeah, I think that is right, but I don’t see how such is inconsistent with the text of the post.
I wasn’t saying anything was inconsistent with the main post. What I was trying to say (and came up a bit short) was that while what Ockham was talking about was accurate, he seemed to be missing the larger point.
That larger point was three-fold. First, that the mere request for a legal clarification on whether the captive could have been moved out of Iraq should have indicated a more trenchant inquiry into exactly where and how the captive was being held (and whether those conditions violated Geneva). Second, that the coverup was already on-going by the time Goldsmith became involved – the DoD had “ghosted” the captive and thereby violated Geneva from about a week into his captivity, and wanted to go further along the lines of violating Geneva by moving the captive out of the country. And they knew they were violating Geneva. Third, that the military was being forced to act explicitly contrary to decades of training – which should have been raising alarms all along the chain – and which is why the orders were so closely held.
Yep. All excellent points. In fairness to WO, I don’t think he missed it so much as the complete volume of his work on this was so long that we asked him to do it in two parts, so Marcy and I may bear a scunch of that burden.
Bingo. You’ve just written the first main point to my follow-up post. Now I know how ew feels. I’ve done that to her a couple of times.
I have a couple of minor factual corrections (mostly irrelevant to your analysis) to what you’ve written. Rashul wasn’t held at Abu Ghraib; he was held at Camp Cropper. Also, it was initially the CIA who ghosted Rashul. Goldsmith’s October 2003 Opinion precipitated Rashul’s return to Iraq where he appears to have spent 3 more weeks in CIA custody before he was turned over to DOD.
This certainly seems to be cropping up as a recurring theme the past year or so.
I can’t quite imagine what the JAGs and Moro must have gone through trying to document this disaster and figure out how to try and put the brakes on.
Thx all…
Folks,
Thank you all for your kind comments. One thing I will say about doing this post is that my already great respect for our lovely hostess has increased even more. I’m amazed at the quality and quantity of work she does here.
I’m going to be out of pocket for an hour or more while I do the work that pays the bills at Casa Ockham. Carry on.
WO
The legume is under one of the three 1/2-shells, is a difficult carnival pursuit with ICRC, one which GlennFine’s “A Review of the FBI’s Involvement in and Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan, and Iraq“, May 2008*, mentions with respect to the AbuGhraib scandal at p.257=300/438; without dwelling upon the topic, merely acknowledging ICRC has good reason to complain. A related matter recently has stirred Gordon Brown’s circle to act, there being a somewhat classically Continental distaste for some diplomatese in communications concerning what might have happened ‘only once’ and only for ‘two’** “detainees” at a refueling port** in the Indian Ocean which US leases from UK. One Reprieve link to a foreign language newspaper has some interesting remarks by Iberian ‘activist judge’ Baltasar Garzón concerning one of the disappeared people for whom a $2MM USD bounty was paid prior to the ongoing disappearance status; the individual concerned evidently was a bioChemWmd consultant to the terrists, with dual citizenship, Syria, Spain. Maybe Fine’s document relates to the Hiwa abduction, as the timeframes match, albeit vaguely; I would wonder if Fine’s archive has more than the generalities in the final report, though maybe some of this is what WO has unearthed in the post, and Fine confined the focus in his compendium only to comportment by fbi. The other material in these brief notes simply indicates a possible continuation of the technique even in these times of more reporting about the incidents.
____
*The link is to the preOCR version.
**Linked document is 4pp and in typical fashion for that advocacy organization is undated, however, its link-thru’s reveal the likely publication date is likely within the past ~three weeks.
***Article publication date three weeks ago.
Taking long, slow, deep breaths…
Will have to re-read this post later; too much to absorb in rapid scan.
Great to see your post here, WO.
And I think it’s time for me to re-read Philip Zimbardo’s thoughts on the role institutions and social structures to enable and promote evil:
http://www.wired.com/science/d…..d_zimbardo
Good catch, WO! Thanks a bunch!
Now to read the comments while waiting for Part II!
Bob in HI
OK, now I read it, and Ms. EW could not have done better.
55 – I was gone for awhile, but still, this was a much harder task than I expected. I found this multiple places, once upon a time, but now it is much harder, even the wapo link that I ended up with isn’t from a google or wapo search, both of which I did, but from a footnote link in this 2005 CRS report (U.S. Treatment of Prisoners In Iraq: Selected Legal Issues
http://www.fas.org/sgp/crs/mideast/RL32395.pdf
Here a link to the actual memo though:
http://www.washingtonpost.com/…..031904.pdf
He starts on his firmest piece of swampland, with illegal immigrants, but then basically spreads funguslike to the point where anyone can be disappeared (and this he opines, even with his extant knowledge of ongoing torture in black sites and with Arar’s lawsuit pending) as long as a) the military hasn’t charged them with anything already and b) it’s not a permanent torture relocation.
Many thanks for this. I didn’t know that it was available.
58 – Whether Goldsmith says it was “issued” or not, he definitely drafted it, put it out there as his opinion as head of OLC, and circulated it. He sent it to Haynes, Bellinger & Muller knowing it was what they wanted (a greenlight) even though it didn’t go as far (forever disappearance) as they wanted. And he had to cc Taft. Fromt he little I’ve seen of Taft’s work, I have to think he had to have had contempt for Goldsmith’s draft.
But more than that, there was apparently a prior “interim advice” that was signed out in some fashion, from Oct 2003. That advice, which is referenced in the draft memo, isn’t something that can be as easily escaped.
Also, with respect to Afghanistan, there is a bit of a common perception that the Geneva Conventions were somehow suspended for all purposes there, but even with Bush’s order and the legal opinions supporting it, that isn’t the case. Instead, what Bush ordered and what the underlying memos supported, in whatever competent or less so fashion, was that the GCWs were suspended as to al-Qaeda and the Taliban, not as to the nation of Afghanistan in general (a signatory) or to civilian non-combatants.
This is why Powell and Taft took an approach early on that was very consistent with the GCWs with respect to al-Qaeda and Taliban fighters captured – – i.e., that they were entitled to the administrative hearing to determine status, and only after that could be treated as illegal combatants and not covered.
e.g., http://www.hereinreality.com/a….._memo.html
This was the horrible loophole in the Yoo/Goldmsith/Bybee/Flanigan/Haynes/Muller inspired approach – that you could only justify suspension of the GCWs in even a very junvenile, irrational fashion, IF the detained were, indeed, al-Qaeda or Taliban. But once you started offering bounties, and also cruising the world airports and streets in search of stray foreigners to kidnap, and you then (with no hearing to determine if these people were, indeed, al-Qaeda or Taliban) disappeared them to GITMO or blacksites, even under the President’s order and the then existing legal opinions, you had committed a war crime if the person you shipped off wasn’t, actually, al-Qaeda or Taliban.
This is why I have said over and over that, with the MCA, Congress attempted to go further than even Bush and OLC and the loyal Bushies lawyers had gone. Bc all those lawyers between them had not issued, and could not issue, any kind of opinion that said that if someone was not a member of the Taliban or al-Qaeda, they could still be legally bought or kidnapped and shipped and disappeared into out-country abuse.
Enter Congress and the MCA – which pretty much did that very thing. The kangaroo CSRTs that had finally occured at GITMO, after years, had definitely had pre-ordained outcomes bc any other outcome made the jailers at GITMO war criminals. As the Uighur case indicates, and as the Kurnaz case and any number of other cases indicated, any court who looked at the information for most of these detainees would easily find that they had not ever been members of al-Qaeda or Taliban – the only designations that, even under the OLC and Bush orders justified the purchase/kidnap and disappearance of these people to GITMO.
So the MCA came along and did what Bush and OLC could not – it granted sainthood to the holdings of “enemy combatant” status by the CSRTs. First it included in its definition of “unlawful enemy combatant” anyone who had been “determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the secretary of Defense.” Later, it made such as CSRT’s holding on status dispositive. Then, as a final spit in the face, Congress pretended to grant the Cir Ct the ability to review CSRT findings (although they were still dispositive pending such review in terms of how detainees could be treated) but said the Cir Ct could only review whether or not the CSRT followed the procedures that Bush and Rumsfeld told it to follow, not whether those procedures were adequate and not whether or not the holding by the Tribunal was clearly wrong.
This, despite the fact that prior to the MCA, every Democrat in Congress who was paying attention had to have known about the Kurnaz case, if nothing else.
That’s why nothing about GITMO has been done in a fashion that makes sense and why no one wants those wrongfully detained there to end up on US soil with access to US courts. They were pretty clearly victims of US war crimes. And everything you can find demonstrates that beginning at least by December 2001/Jan 2002, complaints were coming in that treatment at GITMO violated the GCWs and beginning by at least mid-2002, everyone in the loop with the administration was fully aware that at least 1/3, and very likely 1/2 or more, of the detainees had NOTHING to do with the Taliban or Al-Qaeda. Of the remaining and dwindling numbers, many were only things like cooks or errand runners, who they could not claim to be actual members of the Taliban or Al-Qaeda, even if they had some association (like cooking) for them.
So Congress with the MCA then went and stood everything on its head by saying that it was sufficent to be treated as an unlawful enemy combatant if you “provided material support” to — uh, not just the Taliban or al-Qaeda, but to anyone or group that the Executive could claim to be terrorists.
I must not articulate this point very well, bc it’s one that I’ve tried to make for years and only a rare Obsidian Wings or similar commentor joins in to say “yep” but not only to I pretty firmly believe it to be correct (that all the shipments to GITMO of non-combatants were war crimes and that allowing them to take place without competent and adequate status hearings was horrific lawyering) but I also think it helps make a lot of the insanity about system there easier to understand. Why would they continue to hold, forever, someone when they had 100s of pages from numerous intelligence sources all certifying that this guy had no terrorist ties? Why would they have a CSRT hearing finding him to be an unlawful enemy combatant when their only counterpoint to all those hundreds of pages is some guy at GITMO saying that the detainee must be a terrorist bc he prays during the pledge of allegiance? Why the huge fights on releases of names, etc.?
Bc the war crime was right there in plain sight and they all knew it. Congress included. The Democrats like Harry Reid in Congress “extra included”
We now know that everything going to Bush had to go through Addington first, and that Addington’s response to being informed in no uncertain terms that there were numerous “mistakes” at GITMO was that the President wasn’t going to revisit his determination that everyone there was an unlawful enemy combatant (which already tells you what the CSRTs were worth – Addington had decided what they had to say and they were run to say what he wanted).
We know that if they did anything else, they’d have admitted to numerous war crimes, bc no argument had ever been floated, even by the most loyal of the loyal Bushies, that said the civilian non-combatant population of Afghanistan could be treated as having fewer rights than livestock on its way to becoming deadstock.
Only Congress could, and did, step in to say it was AOK to kidnap and torture civilians and then continue to hold them forever in black site abuse, as long as there was a CSRT determination as to their status, even if it took place years later and even if it was based, not on their membership in al-Qaeda or the Taliban, but on some amorphous standard of providing support.
Rambly comment, sorry, but no time to organize it better.
PS – Note that there is also supposed to be a:
“Memorandum for William J. Haynes II. General Counsel, Department of Defense, from Jay S. Bybee, Assistant Attorney General, Re:The President’s Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations” (March 13, 2002) that is referred to in Memorandum for Alberto R. Gonzales, Counsel to the President, from: Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel,
Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A
(August 1, 2002)
that would bear a lot of examination if anyone were actually looking to proceeding with actions.
But with Bybee firmly sitting in an Appellate court seat, even years after all his torture opinions have come to light (Yoo’s name notwithstanding) it’s pretty clear the only thing going on, ever, is some political game show.
Mary,
Thanks for making these points over and over again. Your persistence is making a difference! Keep up the good work.
I can’t find the original source (Mr. Google can’t seem to help), but I take refuge in the old quote that “The wheels of justice move slowly, but they grind exceedingly fine.” I hope that proves true in this case, and in many other similar cases.
Bob in HI
Can’t yet find your source, but I’m sure your search will be improved by an accurate quote. The quote, and I suspect is 19th Century English, is, I think “The wheels of justice may grind slowly, but they grind exceeding fine.” The reference is to millwheels. Do let us all know if you find it.
“Bc the war crime was right there in plain sight and they all knew it. Congress included. The Democrats like Harry Reid in Congress “extra included”
You explain one again why we keep hearing both Democrats and Republicans sing their theme songs “move on” “nothing here” “time to turn the page” “our nation needs to move forward” “that was then this is now” yada yada yada.
Even Obama has been repeating these mantras for months.
There is no way to truly move forward without ACCOUNTABILITY
No way
Mary, your comments on this post have broken open an understanding of these issues that I have dimly intuited but not really grasped. When the MCA passed I felt as if the darkness were really closing in, and now I know why. Thank you.
And thanks to WO and the many incisive commenters.
I have questions about the sequence of events with Hiwa Rashul that I’ll reserve until part 2’s available. But I’m so grateful for this post, for the Freedom of Information Act (let it temper your irritation with Ralph Nader, Dems!), and for the intertubes…
Likely, I should read Clement’s Hamdan brief on the quaintness issue, again, yet, at one time found the following linked Aspen Institute legislative history of the 1994 US congressional consideration of some of the torcha updates to the Geneva conventions an interesting gloss. Finding time to study the Congressional Record usually is beyond the budget in my time allocations, though the post is an important topic. I wonder how much of the law on the intell ‘exemption’ from treaty obligations might reside in some ‘classified annex’, and whether the Feingold Whitehouse proposed law which attempts to narrow the conditions for making laws ’secret law’ will address that aspect of the US policy on torcha. I also wonder whether Chief Justice Roberts, and the subsequently approved Associate Justice Sam Alito are as eager as one supreme to register votes on the side of institutionalizing torcha; my guess would be there is only one vote on Scotus for torcha. I would imagine any frontal approach to remonstrating inventors and propagators of various US government sponsored torcha paradigms likely would be diverted to Scotus, though WO’s isolative technique is an interesting alternative, somewhat like a PatrickFitzgerald, concretize all facts in the simplest possible way and accepting an easy victory as worthwhile, an approach that might have potential to halt further US institutionalization of torcha, though I suspect the recent epidemic derived from an earlier incubus, only now more widescale and administered on steroids. One of the salient asymmetries of US deployment of torcha against terrists is, smart as some of the victims’ organizations leadership might be, their very statelessness sets them at a disadvantage in approaching legal fora, although there are arguably hundreds of pro bono advocates bridging that gap in the US torcha cases. I expect the DTAcsrt executions to commence in bulk the week of US elections 2008; timing like that seemed part of the plans for the lunar reconnaisance orbiter recently postponed from a 2008 completion date to a 2009 next nearest opportunity.
Extraordinary work, Ockham.
As an aside, Article 49 of Geneva-IV not only prohibits expulsions out of occupied territories but also mandates that
IOW, the Article that nails the rendering of Rashul as a war crime is also the Article that nails the illegality of all Israeli settlements in the Occupied Territories.
Well well well, I never would’ve thought of that. Isn’t that something.
70 – yep And remember the once upon a time McCain who pretended to be upset about the ghost detainees? And the revelations that no one could say how many there were and numbers from single to triple digit were all floated in what were supposed to pass for hearings?
81 – The problem is, there are so many points that all weave together that to try to do a decent job with them all, without losing people on the way, is pretty hard. I think WO did a great job with this particular piece of the story and you have done an very nice job highlighting that there are other pieces, some of which may be important border and corner pieces.
75 – I think some of that ties to the fact that the CIA isn’t bound by the UCMJ, and isn’t subject in general to the jurisdiction of courts martial. A lot of what was done by BOTH CIA and DOD was in direct violation of the UCMJ. No question on the UCMJ front – OLC doesn’t even pretend to get around that. Instead, for DOD, they rely solely and 100% on the Beaver memo concept that as long as the UCMJ violations are authorized by a superior officer, it’s ok. That was mindboggling and shot down by the S Ct in Hamdan, but even so, no one has faced any charges for, nor has there been investigation of, the widespread MI violations of the UCMJ. It is without question that the memos already on the record indicate that MI was given the OK by Haynes and Rumsfeld to repeatedly violate the UCMJ. I think that McCain and Graham, to give them a little due which may not really be due for them, did want to fix the military part – especially since the Beaver approach basically put a soldier in the position of refusing to follow a “legal” order (per Beaver) to violate the UCMJ, as long as that order came from a superior officer. It was incredibly bad, institutionally, for the military.
CIA was not bound by UCMJ and arguably only had to worry with domestic laws per se. And Congress were all Le Carre readers and 24 watchers, who all want to live in the land where all kinds of CIA kidnap, tortures and murders can take place with no worry about things like laws, just whether the “other” bad guys retaliate. This particular Congress believes in torture and loves to be told a story, and they have no real concern for whether or not the tortured or killed were terrorists or not -it’s a vicarious thrill sport for them.
And while the GCWs and TCA are not self executing, the TVA (and maybe some of the tort statues) is out there as well as the War Crimes Act. The TVA might provide a source of recovery if a court that will accept that kidnapping and disappearing a protected person into abusive detention where the govt had formally suspended the application of any legal or military code protections whatsoever in their treatment — meets the standards for TVA recovery.
But we’ve gone on so long now with no one (maybe Chris Dodd, Feingold and Leahy a little, but basically no one) expressing any interest in accountability that I tend to think it’s been lost for good.
[In case it wasn’t clear from above, while Goldsmith’s Oct interim advice precipitated Rashul being returned, bc he opined he couldn’t be held forever, I’ve never seen (although it could be) that the interim advice including the holding that it was a war crime to take him out of country originally and, to the contrary, I’m pretty sure I’ve seen that he couched it in an O’Connoresque – ‘well, I won’t give a blank check ya know, but it’s ok to do it for awhile’ ]
95 – Either I google very differently than I used to google, or it’s been scrubbed some. I’m sure it was much easier to a year or more ago than it is now.
William !
This calls for a
Bud LightSpeckled HenMighty fine post WilliamOckham! And the commentary is of equal laudability.
As I’ve read through all, I can’t help but find it sorrowful that while the FISA Debacle has garnered so much worthwhile attention, these War Crimes which violate both the letter and spirit of any decent human standard of behavior up to and beyond even the Geneva Conventions seem to have so little impact on our country’s discourse.
We are justifiably angered when our rights are violated as is the case under the FISA Debacle.
We are as a nation, apparently, less concerned when it is others whose rights, and even whose very lives are violated.
This is in no way unique to just America, but it is sad commentary no less.
“this is in no way unique to just America but it is sad commentary no less”
You would have a tough time convincing the 5 million Iraqi refugees and the families of the over one million Iraqi people who died during the sanctions and the over a million (Lancet Report) that have died as a direct result of the invasion of that.
For the 97% most part, we are a nation totally unconcerned with anyone’s rights–ours or others. We sure have stripped ‘em.
WO, you are almost always substantive and cogent. Therefore I read all of your comments (and now posts) with anticipation, and have not been disappointed. Eager to see more.
Many thanks, WO.
Congrats, WO! Great debut post.
From now on, I’ll have to be sure to read the bylines carefully. I was into the comments section before I realized I was not reading an emptywheel or bmaz original.
While we’re talking war crimes, wondering what the going penalty is for it these days. Would like to know what at the minimum scares the neocon republicans and our complicit dems enough to run from their constitutional duties. We all know already that Scooter is afraid of a single day in jail.
Mary, thanks for the memo. I can see why it was apparently not issued, the reasoning is ugly.
You know, it strikes me that from the exploits of Yoo, Goldsmith, Bybee, Sunstein and Obama, maybe the term “Constitutional Scholar” doesn’t mean what I always thought it meant. This has been another episode of of the serial drama defining deviancy down brought to you by the fine folks at Bushco.
Sunstein is a constitutional scholar–like him or not. Obama has never been characterized as one by anyone I have read nor himself.
I wouldn’t put the rest of the people you know anywhere near Sunstein. I’ve never seen anyone regard them as constitutional scholars.
That should have read not “you know” but I wouldn’t put the rest of the people you named, Bybee or Goldsmith in a category as constitutional scholars by any criteria.
The memo says there is another memo
deconstructingdefining the term “protected person”. Here is the definition:I’m not seeing that one, but I bet it’s a doozy.
That looks like it was written by Monty Python. Jeebus. Sadly, that probably is the sane part of the memo.
WO, I’m not sure why you are believing that the memo wasn’t implemented, is it because it is marked DRAFT?
http://www.humanrightsfirst.or…..s_Gonz.pdf
It seemed to me (I blogged about that memo a couple of months ago), that this policy of separating foreign nationals off and calling them immigration violations, and then holding the prisoners who couldn’t be so designated as not yet accused so they could be transported, actually got its start in the field, at Kohat and Haripur prisons in Pakistan as the people fleeing the U.S. invasion in Afghanistan were spilling over the border. Goldsmith then worked on the language and justifications. I didn’t get the feeling this was a draft that was floated as a possibility, as Goldsmith says, but rather a legal creation to formalize what was already being done by the CIA, now that it was needed in Iraq.
Anyway, there’s the address of the memo, some people were having trouble finding it. Some of this stuff has new relevance with the Aafia Siddiqui case, since it seems like the Pakistanis were at first under the impression that she had relinquished her Pakistani citizenship (becoming American) at the time when she was supposed to have been first nabbed, and may have had to start dancing fancy footwork once they realized she was Pakistani.
Hey there, thanks for stopping by. Heh heh, I think we are all being hamstrung by yet another disingenuous semantical shell game from the Administration. Ockham used the term “issued”. Mary @91 used “issued” as well, but also used the term “circulated”. You have used the term “implemented”. I think all of thos, and probably some more, have been bandied about by the Administration. I guess it depends on what the definition of “issued” is. Or “circulated”. Or “implemented”.
The enabling statute that codifies the power of the AG for designation of authority is 28 U.S.C. § 510, and 28 U.S.C. §§ 511-513 describes those entities that the AG is supposed to advise. The delegation of authority for these functions, from AG to the OLC, is contained in 28 C.F.R. § 0.25. The DOJ itself describes the function of the OLC regarding opinions as follows:
So exactly how the terms issued, circulated and/or implemented relate to the key terms in the OLC mission statement, “render” and “formal”, who knows. You almost get the impression that Bushco is intentionally being ambiguous and non-committal about whether this was and active formal opinion or not because their whole scheme is so patently fraudulent that they are not yet sure which position, draft or formal, is more favorable for the unknown position they may later be in.
“issued”, “circulated” or “implemented” Fixing the law to suit their needs. Did they break the law? Did they ignore the Geneva Convention?
Christ AllMighty when the peasants watch the Bush administration break, fix, issue, implement one crime after another and not be held accountable by Congress in any serious way for any of it what do they thing that does to the morality of this country?( what ever moral code is left in tack).
Can the ICC step up to the plate and hold these thugs accountable for ignoring the Geneva Convention laws if our DOJ keeps casting their responsibility off to the side?
Here’s one place where you won’t find out. It’s another year and another Woodward book where the administration cooperated. They’ll talk to Woodward, but they aren’t under oath and there’s no transcript so it gets Woodwardized for public consumption. Shills and slaves come in all shapes and sizes from the WaPo:
Bob Woodward to reveal ‘The War Within’
A big shout out to Condi Rice, former Stanford Provost, and fake “Russian scholar” who is spending the last 4.5 months in the administration taking the intro course in Russian Behavior 101:
Russian Forces Detain Georgian Soldiers at Port and entrench SS-21s in Ossetia after Fake Scholar Rice forges agreement
Woodward sure has been quiet after he got caught undermining the Plame outing and investigation on Larry King Live and a few other places. All the while knowing he was one of the journalist to have her identity revealed to him.
There is something very fishy about Woodward. I thought his efforts undermine Plame and that investigation said a great deal about Woodward and what sure appears to be an agenda
In a technical sense, I agree with WO that if Goldsmith has really said (was it under oath?) that the memo was not (I’ll use “finalized”) that may be something Goldsmith can try to wiggle around and about.
Many years back I was in a big firm practice and the process there was that memos were not considered the final, end product until they were “signed out” (which generally meant initialling rather than actually signing). IOW, there was so much work product going back and forth between so many people who did not work all that closely with each other that there was every chance that a draft of a memo that was looking at options might, for example, cover only 3 of the 4 statutes someone was researching, with the 4th statute, when they added it, completly changing analysis and conclusion. So there had to be a way to make sure that no one (esp a lawyer who didn’t practice in that area normally) didn’t get a copy of a work in process and rely on it as an end product.
I would guess that, with the size of DOJ, they have some kind of similar process. So that there is a technical argument about whether or not the memo was in a “reliance” form or not. However, if the Oct “interim advice” had been that it was OK to transport out for interrogation as long as it was for a limited period of time (a really stupid, useless analysis unless what you were actually doing was trying to provide cover for what was already done when it clearly was wrong) – and if the later circulated “draft” took the same position and if OLC, after giving the interim advice, not in draft form but with the caveat that it was “interim” then came back with a multipage draft memo it circulated to all the players …
AND
…if the draft memo also provided cover and was never in the days, weeks, months and years that followed supplanted by a finalized, “signed out” memo that took a contrary position, I think Goldsmith would have a hard time arguing that his “advice” and encouragement to those involved in Article 49 violations was contrary to his “draft”
It’s a bit of a equitable/laches approach I guess – if he sits on the draft memo without changing or supplanting it up to and through the point where he leaves OLC (with no one else working on a *formal* opinion to supplant it either), he pretty much is velcroed to it IMO. But that’s just my opinion and I’m not a fan.
And the bizarre concept of “if you violate Art 49, but only for *awhile* it’s not really the same as violating it – if you send a body back for burial that’s ok too” is just made up gobbledygook, esp when he know that the ONLY reason for transport was to engage in even more significant abuse than he already knew his pal Haynes was authorizing on site.
If you look through all the things that have been done through the lens of the fact that, beginning prior to the Jan 2002 memo Gonzales gave to Bush, they were all talking about the fact that they were involved in the widescale, and widening, commission of and conspiracy to commit and conspiracy to evade prosecution and obstruct justice for the commission – of war crimes, and that some of those crimes, like Art 49 violations, would be extremely difficult to cover up without totally disappearing people and records, it gives a different perspective to things like the fight over the release of names, why the CSRTs were set up as kangaroo cts, why there were the “no longer an enemy combatant” determinations, etc. Add in that there’s no sol on murder, and that there were definitely torture deaths, and the whole thing gets less fuzzy.
I still think the main reason el-Masri finally got out wasn’t bc of their final decisions that he wasn’t “that” el-Masri, but rather that, after knowing that he wasn’t “that” el-Masri for awhile, they realized that so many outside of agency people were aware of their actions (all the people in Macedonia, for example) that the cat would walk back to them too easily if he didn’t show back up. Making him look like a crazy guy after what they did to him was just the psycho-sadist cherry on top.
Not good people. None of them. We aren’t talking here about a month or two of craziness immediately after 9/11 for which some remorse was shown later – we’re talking about years and years of going home every night, knowing people are suffering the worst of depravities because of you, your advice, your efforts to cover up, etc. and, far from losing sleep over it and trying to bring it to an end, getting up every day and coming up with new ways to cover up and encourage more depravity.
With all Goldsmith knows and knew then, his op ed on the glories of GITMO after he went to Harvard is just flat out creepy. Not a good man. IMO, fwiw.
Just to clarify something: The idea in the memo isn’t that you can transport someone and it’s okay only for a while. The “for a while” concept comes from Jack Goldsmith’s “old fashioned” notion that prisoners have to be accused of crimes (maybe he didn’t fit in with the administration because he had a repressed belief in habeas corpus or something).
What he opined (argued, created the cover for, or whatever) was that a civilian prisoner wasn’t entitled to the Article 49 right not to be transferred until they had been accused of a crime. He thought that meant a temporary transfer because he assumed they eventually would be accused. The administration has, in sharp contrast, been of the opinion that no accusations are ever necessary. His opinion in that part of the draft (the other part deals with what “deport” means because it sets up “foreign fighters” for illegal immigration and the treatment Chertoff and predecessors have meted out for immigration detainees) is very much like that of Scalia on torture: that the prohibition on cruel and unusual punishment doesn’t start until the actual punishment of a prisoner starts, which is after the trial, and that it doesn’t apply to cruel treatment that is used to extract information.
BTW, I don’t agree with some of Jane Mayer’s analysis of who had major influences on crafting these runarounds on international law. She characterizes it as all flowing from the War Council, which is okay, but she characterizes Gonzales as a quiet, less intelligent member who was dominated. In point of fact, Bush and Gonzales came in to office with a grudge against international law, stemming from a run-in over executing foreign prisoners when Bush was governor of Texas (and Gonzales ran his death penalty recommendations board). I think there is a reason this president and this White House Counsel assembled this crew of Geneva haters, and part of it was revenge.
ondelette and Mary,
My primary argument is this. In October 2003, Goldsmith put out a formal OLC opinion that said the Geneva Conventions prohibited transferring protected persons outside of Iraq. It’s possible that there was some dancing around on the issue of definite versus indefinite, but I doubt it, based on what happened after his opinion (they brought Rashul back and hid him). Ultimately, the March 2004 opinion is irrelevant in Rashul’s case because it is clearly after the fact. This Harvard Law Review article lays out the conventional thinking behind how OLC opinions confer legal immunity. None of the arguments really work when the opinion is ex post facto.
Regarding that Harvard Law Review article – who wrote that brain numbingly long superficial statement of the obvious? That thing has all the marks of a couple of 1L or 2L students with free unlimited Lexis/Nexis/Westlaw accounts and no clue. That article doesn’t accomplish squat, and is squat for authority for our discussion point here. It just has a squat problem.
I did say conventional thinking. I think the article appropriately represents the level of legal discourse about the whole issue.
Again, the amount of time that you and some of the commenters spend researching and the level of research is truly commendable here. You make this an awfully good place to stretch and learn.
You are prescient, and correct, sir. Here’s the way it works.
I wanted to know who wrote it as well, so I called HLR:
June 2008 Harvard Law Review
All of the articles listed in the link which are shown as “Notes” are collective/collaborative efforts of students in all years at the law school. That’s why the article is not labled as to author, although “Jennifer” said that there has been a lot of discussion that they should list the authors, and she said of course they do give themselves credit for the articles “when applying for a job” [knowing that the future potential employers ain’t taking the time to read the articles so much as they are supposed to be impressed that it’s the Harvard Law Review.
I have heard there is a guy applying for President of the U.S. who was President of the Harvard Law Review although not a constitutional law scholar, whose VP candidate is Joe Biden.
But we do hope he can do something to repair the Constitution and that subject would not only make a great 100 page law review article, but an analysis of whether he did if given the chance and could get Congress to help him will be the subject of a number of books.
So which airports are ORBS and ORBI? Both in Baghdad, but distinctly different call signs.
Wondered if this makes a difference as to where they hid him and which entity had custody…
Not good people. None of them. We aren’t talking here about a month or two of craziness immediately after 9/11 for which some remorse was shown later – we’re talking about years and years of going home every night, knowing people are suffering the worst of depravities because of you, your advice, your efforts to cover up, etc. and, far from losing sleep over it and trying to bring it to an end, getting up every day and coming up with new ways to cover up and encourage more depravity.
Once again we’re on parallel tracks. Despite how grateful I am for her reporting, I’m made very, very uneasy by Jane Mayer’s setting up Goldsmith and others as heroes and her ‘craziness after 9/11′ theme.
o/t new story on Ivins
http://www.fredericknewspost.c…..ryID=78992
Nothing really, really new. But it continues that there has been no definitive proof that Ivins did it.
This has been a great working thread with some typically excellent digging and nice research and organization by WO with some hard working help by the commenters.
As to anthrax, DOJ held a conference yesterday, after holding a “private” conference to do their kabuki of leaking more misinformation to gullible people who have all the scientific background of a chipmunk, including Daschle, and the bottom lines are these:
1) They have done nothing whatsoever to link Dr. Ivins to the mailings that can be called evidence. However, they have done what they would not dare do in a court of law which is to backtrack and change their story several times.
2) They have done nothing whatsoever to scientifically convince anyone that they have nailed the anthrax strains to a crime except to announce with a superficial flourish that they have a cutting edge new genetic method of IDing anthrax. They have produced no methodology, but said distinguished scientists contributed to it. They have not given any significant new evidence, and they refuse to.
I have all kinds of ideas for new drugs/and procedures and any doc has them from the time they start med school–as do people in general but we see the limitations a little more clearly so we may (or not) have more ideas.
However, putting them together and convincing the people that can help me make them (can’t be done in my kitchen) to put them into R&D is a whole other paradigm.
Once in a while, someone comes a long and makes that hop–60 minutes featured someone who did it significantly with cancer (shown twice) but that doesn’t happen often and he worked for years.
3) If you’re reading Eric Lichtblau and his partner and your reading Carrie Johnson and her partner and saying “Wow” that’s WaPO and that’s NY Times–I have some good advice.
Don’t do it. You’re really being suckered.
Lichtblau who is a very experienced reporter who covered DOJ for several years and covered various law enfocement agencies (US attorneys sometimes go into court claiming that they are law enforcement and I’ve seen them penalized heavily for that misperception when trying to withold discovery; they aren’t actually) who specializes in terrorism and the law’s nexus with it should know better. He doesn’t appear to.
Glenn Greenwald has eaten his lunch several times and well he should.
Carrie Johnson and her partner at WaPO have been even more incompetent and made fools of themselves. What those two have done is to parrot every single thesis of DOJ’s breathlessly, not even stopping to notice that they have never analyzed the quality of what DOJ has proferred in the person of Jeff Taylor, but that every time Johnson writes a new column she parrots a new even more disingenuous theory by DOJ without analyzing it.
CNN (Chicken Noodle Network that is considerably crappier as a news organization than either MSNBC or in real fact, Jon Stewart so people are correct to regard him on a par with the other networks and they actually do–Stewart has more ability to analyze in his little finger than any of the current highly paid news anchors and my puppy can out anayze Katie Couric:
Glenn Greenwald took her apart yesterday as well he should.
Doubts over the anthrax case intensify — except among much of the media
CNN mindlessly though flamboyantly trumpeted the FBI’s story of Ivins’ administrative leave all day as though it were definitive proof that Ivins used that leave in order to drive to New Jersey that day and mail the anthrax letters.
But almost immediately after the FBI leaked this theory as to when and how Ivins traveled to New Jersey undetected, it was pointed out in several online venues, including here, that this timeline made no sense whatsoever — that, indeed, the FBI’s own theories were self-contradictory.
So what did the FBI do in response to that rather devastating hole in its theory being pointed out? It just leaked a completely different story to the Post about when and how Ivins mailed the September 18 letters from New Jersey. Here’s the FBI’s new version, from the Post on Thursday:
That the FBI is still, to this day, radically changing its story on such a vital issue — namely, how and when Bruce Ivins traveled to New Jersey, twice, without detection and mailed the anthrax letters — is a testament to how precarious the FBI’s case is. They stood up in public two weeks ago, refused to show anyone the evidence they possess, but nonetheless proclaimed that they know that Ivins was the anthrax attacker, and that he acted alone, beyond any reasonable doubt. Yet their own theory as to how and when he sent the letters was squarely negated by their own claims, and so they had to re-leak their theory to the Post once that glaring deficiency, which they apparently overlooked, was pointed out online.
This isn’t some side issue or small, obscure detail. Being able to link an accused to the scene of the crime is the centerpiece of any case. That’s why the FBI leaked its “administrative leave” theory to the Post and other media, which then spent all day highlighting the “incriminating fact.” Yet the FBI’s own theory made no sense and was immediately debunked, and so, in response, they just changed their theory to some completely different set of speculations the way political pundits have new “breaking news” every five minutes about who the likely Vice Presidential picks are. Does that behavior allow anyone to have confidence in what the FBI is saying?
Hell No. And the Anthrax evidence presented by the FBI yesterday was just as lacking.
Doubts over the anthrax case intensify — except among much of the media
Congratulations to Pakistan’s newest prime lobbyist–one Harriet Miers. There should have been a law passed long ago that if you are in contempt of Congress, you immediately are disbarred and you can’t practice law or lobby until the issue is resolved by the two branches of government purporting to resolve it.
Former Supreme Court Nominee Miers Now Lobbying for Pakistan
Gotta love this gem from the Harvard Law Review.
Give me immunity or give me death
“There are almost a million lawyers in the United States. Not
all of them are competent; not all are honest. If unreasonable advice
of counsel could automatically excuse criminal behavior, criminals
would have a straight and sure path to immunity.”14
WO @107, the departure flight is mentioned with the same date and plane number, on p.13/36 of the Reprieve whitepaper “Scottish Involvement in Extraordinary Rendition” apparent publication August 23, 2007, regarding Scotish refueling sites for ghostplanes, with respect to a different terrist, one who likely is to face execution.
Forgot to mention did another shift in Denver late yesterday for the Dems. Worked with another Republican (of course worked with many others) a WWII Vet who jumped from the Republican ship quite a while back who is voting for Obama. Third Republican in two days that I have talked with who jumped ship and are volunteering for the Dems. Yes Yes Yes
William Ockham, I should emphasize that my quarrel is only with the perception of Jack Goldsmith as an appalled spectator to the shenanigans of the War Council and their efforts to subvert international law. I think your timeline on Rashul is probably quite correct and very devastating. But I tried to do the when did the document come and when did the illegal actions come thing several times now, and it turns out as information seeps out, every time line is similar to yours with Rashul.
The conduct begins.
The administration wishes to make the conduct the norm.
They solicit an opinion from OLC, who is led to believe that the conduct is only being contemplated.
The OLC writes a memorandum.
Written policies flow from the memorandum.
The matter then becomes public, someone (in the Rashul case, you) puts together what really happened, and the administration falls back on the OLC memo and one of the various doctrines in the HLR paper, or perhaps just on stonewalling or the inertia of investigating bodies. People point to the fact that the OLC memoes can’t possibly be what they claim to be if they are written after the fact, and the administration bullies its way through on public perception and the fact that few people read such fine points.
Would it hold up in court? No. That’s why the evasive action was taken on Rashul, because those who could be prosecuted got worried. Will it hold up in the court of public opinion? Well, have you seen anyone prosecuted yet?
When it is John Yoo caught in this web, there is a lot less forgiveness than when it is Jack Goldsmith. But careful analysis of his comments and the time line indicate that Yoo probably thought that the administration wouldn’t torture in advance of his legal opinion, which they did. When he gave them the green light on Abu Zubaydah, he seems clearly to not have known they’d already proceeded through the intersection while the light was still red. Most likely, John Bolton believed they wouldn’t touch Abu Zubaydah until he’d got them out of the ICC, but they seem to have jumped that gun, if only by a week or two, as well. It’s obvious that the executing personnel (Sanchez in your case, the CIA in the black sites cases) didn’t believe that all they had to do to avoid prosecution was to rely on a legal opinion out of the OLC, or a withdrawal from a treaty. So Sanchez hid the guy from the Red Cross, and Tenet demanded that the NSC or the President sign off on each and every interrogation.
That HLR paper is particularly naive with respect to John Yoo both writing for the OLC and sitting on the War Council formulating administration policy at the same time. The paper gives a view of an OLC that commands respect and holds itself to impeccable standards. The record, on all of this War on Terror work, is of an office that behaved exactly like a corrupt in-house corporate lawyer who believes that his primary job is not to create objective advice but to remember who signs his paycheck.
It’s worth mentioning that internationally, two foreign judiciaries have been sacked over this U.S. behavior: in Pakistan and Afghanistan. In Pakistan, habeas pleas which demanded that missing prisoners be produced in court and charged were the cause of the suspension of the constitution and sacking of the chief justice of the SJC. When the Supreme Court of Afghanistan sentenced returning Gitmo prisoners to time served (just like was done with Hamdan a couple of weeks ago), the court was sacked on pressure from the U.S., and the justices went into hiding after being charged with treason.
I’m just reading along, riveted. Thank you very much.
Tangentially, Pete’s link about Harriet Miers @ 124 drew me up short. It doesn’t surprise me to read that her firm has been lobbying for Zardari, but the government of Pakistan itself? Post-Musharraf? I have no idea how to read that.
Your posts have been very helpful for me in sorting out these characters and timelines. As you can see, student written law reviews and other law reviews on OLC authority are on shaky ground, and often not objective post 911:
OLC and Student Edited Law Reviews
Peter Spiro and Comments
Executive Branch Avoidence and the Need for Congressional Notification Columbia Law Review
If Congress had been notified in time to be part of the decision making process, we aren’t likely to hear about it.
Guidelines for the President’s Legal Advisors Former OLC Attorneys
New Study Challenges Administration’s “War on Terrorism” (Full Text of Rand Report Below
How Terrorist Groups End
NEW POST ALERT:
The Gitmo Shrinks Find Their Super Ego And Cowboy Up
Texas Executes a Mexican Citizen Despite a Breach of the Vienna Convention: A Decision that Undermines America’s International Standing and Commitment to the Rule of Law by Former S.Ct. Blackmun Law Clerk Edward Lazarus
120 “In October 2003, Goldsmith put out a formal OLC opinion that said the Geneva Conventions prohibited transferring protected persons outside of Iraq.”
That’s where I think we are coming at things differently. Bc as I see it, he didn’t do that. I may be mistaken and may have missed a loop, but my understanding is that what he did was to say that the people that were being disappeared out of country for interrogation were, after all, “protected persons.” But he allowed for the Article 49 violations against protected persons as long as the military didn’t have formal charges pending against them. Do you have a formal opinion link where he ruled they had to be returned? That would be contrary to his later draft, which says nothing like that.
122/126 – Looks like you were pretty prescient bmaz. It’s a Note.
134 – Nice comment. There is, in particular, a very big problem with anyone attempting any kind of reliance on OLC opinions that were secret. OLC has more than one function, but when it comes to setting forth the legal boundaries being established by the AG, which are meant to act as law within the Executive branch, they have to do it publically- the United States and common law have no “secret laws” history and never really adopted the underlying rationale for star chambers.
This isn’t directly apropos of anything, but since this is getting into epu land I’ll tack it on here:
http://www.washingtonpost.com/…..01257.html
This is an op ed piece by Goldmsith, from August of 2006, priming the election pumps with his wise words on GITMO. Read the piece with the keeping in mind the things that Goldsmith, if he was competent, had to hve known about after all his involvement with Haynes, Yoo, Comey, Ashcroft, etc. That since Jan of 2002, GITMO had been the source of abuse complaints. The torture of Zubaydah and others. Waterboarding. That Priest reported “young detainee” tortured to death by hypothermia and stress positions. KSM’s disappearing children. Maher Arar’s shipment to torture, el-Masri being disappeared, likely many others. Dilawar having his legs pulverized. The systemic corruption of DOD and particularly DOD Military Intelligence, the reasons behind the refusal to follow up on Taguba’s recommendation to investigate MI and what it had wrought. Children as young as 11 or so at GITMO, alll the mistranslations or non-existant translations, all the human trafficking transactions, and on and on and on.
Per Goldsmith: “Terrorist trials are both unnecessary and unwise.”
Regarding military commissions: “Even if they can be made to work, skeptics will still regard them as kangaroo courts”
Yep – those skeptics like the guys kicking Hartmann out on his butt.
Really, the only problem, per Goldsmith, is that you lock up village bakers with no habeas and no involvement in terrorism for the rest of their lives – but hey, maybe not, yaneverknow. “The main concern with military detentions is that the war will last a long time, perhaps indefinitely. If so, detention could mean a life sentence. We don’t yet know whether this concern is warranted”
He leaps over tall buildings and declares that the US system of waterboarding, disappearing civilians and torturing Uighur refugees, has ensured American security and respected human rights – in a way that Europe’s criminal trial approach has not. All baseless, but when you are base enough yourself, baseless is just another point on your personal continuim.
Oh well.
We are on the same track. She has to show some deference to her sources who had their own take and slant, but no one who just goes nuts for a bit after 9/11 would be so remorselessly and relentlessly cruel to all the victims they helped create and so cold blooded on coverups for so long.
And it’s not like it was a contained evil. It was invasive and spread everywhere. But for the ability to torture al-libi and lie without compunction bc of the DOJ approved misuses of state secrets and classification authorities, Iraq would not have been invaded; Bin Laden would likely have been caught; Fallujah would still stand; more than a million refugees would still have homes, thousands of American soldiers would not have brain injuries, lost limbs and lost lives; Blackwater would not have gone on killing sprees etc etc etc. They all made sure that they buried as much of the truth as they could and helped get Bush re-elected at any cost.
I guess if we still had a criminal justice system, the analogy you could give is that none of them will allocute, none of them shows remorse, and all continue in their chosen paths of obstruction.
There are some heroes – someone like Mora for example, and Dan Coleman. But I don’t agree with Mayer on some of her other picks.