ACLU: “No Prohibition against Monstrous Conduct” without Ajudication of Torture

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The ACLU just finished up a conference call on the status of accountability for torture. Jameel Jaffer talked about accountability generally, Ben Wizner gave an update on the Jeppesen lawsuit (which he will argue next Tuesday, Alex Abdo gave an update on the torture FOIA, and Christopher Anders gave an update on the long-awaited OPR report.

While there were a range of questions, most of the answers converged on one theme best summed up by an answer explaining the cost to our judicial system in holding up the legal judgments on torture. Until we have a binding decision on these cases, Ben Wizner argued, there is “no prohibition against monstrous conduct.”

To a later question, Chris Anders talked about the significant repercussions this has around the world: so long as we don’t hold anyone accountable for torture, then other countries “do not have to be accountable for their actions.”

Here are some comments from Obama’s speech in Oslo today:

To begin with, I believe that all nations — strong and weak alike — must adhere to standards that govern the use of force.

[snip]

Furthermore, America — in fact, no nation — can insist that others follow the rules of the road if we refuse to follow them ourselves.

[snip]

Where force is necessary, we have a moral and strategic interest in binding ourselves to certain rules of conduct.  And even as we confront a vicious adversary that abides by no rules, I believe the United States of America must remain a standard bearer in the conduct of war.  That is what makes us different from those whom we fight.  That is a source of our strength.  That is why I prohibited torture.  That is why I ordered the prison at Guantanamo Bay closed.  And that is why I have reaffirmed America’s commitment to abide by the Geneva Conventions.  We lose ourselves when we compromise the very ideals that we fight to defend.  (Applause.)  And we honor — we honor those ideals by upholding them not when it’s easy, but when it is hard.

[snip]

First, in dealing with those nations that break rules and laws, I believe that we must develop alternatives to violence that are tough enough to actually change behavior — for if we want a lasting peace, then the words of the international community must mean something.  Those regimes that break the rules must be held accountable.

Obama talked a lot about consequences today. But he fails to demand any for his own government. And until he does, that means torture will still be used.

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41 replies
  2. bobschacht says:

    Thanks for covering the ACLU conference call!
    I’d like to hear more about the individual updates by
    * Ben Wizner on the Jeppesen lawsuit (which he will argue next Tuesday),
    * Alex Abdo on the torture FOIA, and
    * Christopher Anders on the long-awaited OPR report.
    Can you tell us anything more about those?
    Will there be notes on this posted on the ACLU website? I just checked, and there doesn’t seem to be anything there yet.

    Bob in AZ

  4. earlofhuntingdon says:

    Glennzilla notes that, as reported yesterday in the NYT, the ACLU lost its top donor, apparently owing to the Wall Street meltdown. According to Glenn, that’s a $20 million annual hole, about a quarter of their budget.

    If anyone was interested, but assumed the ACLU was too well-heeled to donate to them, that’s no longer the case. They and the EFF have done yeoman’s service during the Bush and Obama years. If anyone is looking for a good cause, beyond FDL, they couldn’t go wrong adding the ACLU and the EFF to their gift-giving list.

  5. Mary says:

    I still can’t get over the incongruity of Obama picking up his peace prize while the ACLU is having to sponsor conference calls to discuss, not only how long torture and torture-killings will go unchecked and unpunished by Obama’s DOJ, but how long the torture victims will continue to be held in their (perhaps) former torture chambers by Obama.

    OT, but kind of related on the consequences front, the Conrad Black appeal is going to be worth watching
    http://tpmmuckraker.talkingpointsmemo.com/2009/12/supremes_could_weaken_key_anti-corruption_law_that.php?ref=mblt

    I have very mixed feelings about the theft of honest services approach, especially as it has been used. This one’s not a simple one.

      • skdadl says:

        I’ve been trying to hold back this nitpick, but since you raise the topic:

        Furthermore, America — in fact, no nation — can insist that others follow the rules of the road if we refuse to follow them ourselves.

        If that’s a transcript, it’s a pretty unfortunate logical muddle. Literally, “America can” but “no nation can” (and while I know there are some people who think that way, I doubt that’s what the White House meant to convey).

        • earlofhuntingdon says:

          That is a muddled statement. If Rove had drafted it, I would say it means that America can enforce standards on others it refuses to apply to itself – nay, that it will got to war to avoid allowing others to apply them to America. It’s sloppy at best. For a gifted speaker to use that construction, it suggests a Freudian slip that the speaker doesn’t mean what he’s saying. I’d call it, the lost negative speech.

        • skdadl says:

          I haven’t watched Obama’s Nobel speech yet, but I did watch the end of his press conference with the Norwegian PM. The last question, put very politely, was still a challenge, more or less asking Obama how he was going to live up to the prize. I thought that would be a good opportunity for him, but the answer he gave was so long and twisty and complicated that I think everyone lost the thread and ended up hoping he’d stop soon.

        • earlofhuntingdon says:

          What a great technique – play into the image of being an egghead to avoid answering an unanswerable question. His most prominent policies, which will carry him through the 2010 and 2012 elections – most notably, his war in Afghanistan (the admitted strategic goals for which are as amorphous as any Bush put together for Iraq) – do not live up to the Prize’s aspirations.

    • bmaz says:

      It is not a simple one, but it is indeed a vague and overbroad statute that is nothing but a prosecutors amorphous wet dream. I think it is toast, and likely rightly so.

      • Mary says:

        I think you’re right – TPM’s piece said the Blago charges are being refiled in the court does shoot down t.o.h.s. Still, as the ineffable Deb Howell explained, if you’re pissing off the conservative and the moderate-but-let’s-call-them-liberal justices, you must be doing something right. *g*

        Or not.

        Siegelman’s case would be impacted as well.

        • bmaz says:

          As to Siegelman, maybe, but two of the honest services counts were already bounced on the appeal; and, even if the remaining honest services counts were to go away, that still leaves him convicted of the top counts on the indictment, which were bribery and obstruction. I guess he could argue entitled to a new trial because of taint from the honest services counts that would then be gone, but that seems unlikely to carry the day.

  7. Mary says:

    Funny in a mayaswelllaughascry way:

    Andy Borowitz piece up at Huffpo
    Obama Sends Predator Drone To Pick Up Peace Prize

    “We know there’s a possibility that the predator drone might miss Norway altogether and instead hit Finland,” said White House press spokesman Robert Gibbs. “Having said that, an unmanned plane is still more accurate than one manned by a couple of Northwest pilots.”

    • earlofhuntingdon says:

      Yup, commented on that a few days ago. The choice seems exceptionally cynical, given his biased, if popular, coverage. No one else was available from the new media?

  9. bmaz says:

    I related somewhat breaking news:

    A federal judge has found the Defense Department in contempt of court for failing to videotape the testimony of a prisoner held at Guantanamo Bay.

    U.S. District Judge Gladys Kessler is demanding a detailed explanation of why the Pentagon failed to conduct the taping as she had directed.

    The detainee, Mohammed Al-Adahi of Yemen, is challenging his indefinite detention at the prison in Cuba.

    The judge said she wanted the proceeding with the detainee videotaped to provide the public and the news media the greatest possible portion of Al-Adahi’s testimony.

    In August, Kessler ordered the government to take all possible steps to arrange for the release of Al-Adahi

    .

  10. CTuttle says:

    How does this… “Furthermore, America — in fact, no nation — can insist that others follow the rules of the road if we refuse to follow them ourselves.”

    Comport with this…?

    US refuses to allow UN inspectors to investigate its(ours) WMDs… …Outlining the new US administration’s strategy on the issue, Tauscher said Washington believed that compliance to the treaty could be encouraged through “enhanced transparency… and pursuing compliance diplomacy to address concerns.”

    What transparency…?

    • Jim White says:

      I just put up a diary relating to the American exceptionalism in the speech. It doesn’t use the poorly constructed phrase you point out, but it does concentrate on his call for “accountability” when regimes break the rules when he is clearly avoiding accountability for US torture.

  11. Leen says:

    way ot but please help us pressure Voinovich. Folks in Ohio are making a concerted effort

    SINGLE PAYER ADVOCATES HAVE ENTERED THE OFFICE OF SENATOR VOINOVICH AND ARE DEMANDING THAT HE SUPPORT AN EXPANSION OF MEDICARE! CALL NOW AND MAKE THE FOLLOWING DEMANDS! PHONE NUMBERS, FAX NUMBERS, AND SCRIPTS BELOW:

    Senator Voinovich
    1-866-220-0044 (Congressional Switchboard – Toll Free)
    216-522-7095 (Cleveland Office)
    216-522-7097 (Cleveland Fax)

    “I am calling as a constituent from Ohio and I am demanding that Senator Voinovich vote for the Sander’s amendment, a national single payer plan. As a self proclaimed fiscal hawk, Senator Voinovich should realize that this is the only method that will provide health care to ALL Americans while saving costs. Some inner city school districts in Ohio could save up to 28 million dollars a year on their health care costs. Medicare for All would also create approximately 2.6 million jobs, slightly less than the total number of jobs lost in 2008. In the Senator’s last term in Congress, he should stand up for this moral issue, and realize that health care is a human right. A group of activists in Cleveland are currently sitting in outside the Senator’s office to demand that Sen. Voinovich support the Sanders amendment, and that he donate the $582,516 he received from the insurance and pharmaceutical industries during the 2008 election cycle to The Free Clinic of Greater Cleveland. They will remain at the federal building until Senator Voinovich agrees to these terms or law enforcement removes them. The Senator works for them, and we all say Medicare for ALL, support the Sander’s amendment!”

    Senator Sherrod Brown
    1-866-220-0044 (Congressional Switchboard – Toll Free)
    202-228-6321 (Washington DC Fax)
    216-522-7272 (Cleveland Office)
    216-522-2239 (Cleveland Fax)

    “I am calling as a constituent from Ohio, and I’d like to thank Senator Brown for cosponsoring the Sander’s amendment for a national single payer health care plan. Medicare for All is the only way to provide health care to everyone in America and cut health care costs. We hope to see Senator Brown continue to advocate for real health care reform.”

    Once you have made a round of calls, start at the top and make them again! Our goal is to make sure that our legislators know that we support single payer Medicare for All, and any less will not do. Thanks for all of the great work you do!

    Yours in solidarity,

    Drew Smith
    Coordinator
    Mobilize Ohio Movement
    http://www.mobilizeohio.org

    “Of all the forms of inequality, injustice in health is the most shocking and the most inhumane.”
    -Dr. Martin Luther King Jr.

  12. earlofhuntingdon says:

    Perhaps Mr. Obama isn’t so sure that foreigners will respect his inconsistencies the way Americans do. In Norway,:

    Some Norwegians are incensed over what they view as [Mr. Obama’s] shabby response to the prize by skipping several events. The White House has cancelled many of the events peace prize laureates traditionally submit to, including a dinner with the Norwegian Nobel committee, a press conference, a television interview, appearances at a children’s event promoting peace and a music concert, as well as a visit to an exhibition in his honour at the Nobel peace centre. He has also turned down a lunch invitation from the King of Norway.

    Was that for reasons of personal security or to protect the freedom not to hear questions he doesn’t want to answer?

  13. earlofhuntingdon says:

    Some governments, even small “c” conservative ones, have the decency to inquire into past governmental wrongdoing.

    RCMP Probes Federal [Canadian government] Role in Arar Torture

    The Star has learned the RCMP began an investigation in 2006 into whether charges against Canadian officials were warranted in the case of Maher Arar, a Canadian who was rendered to a Syrian prison, where he was tortured….

    The prospect of facing charges is “not far-fetched at all,” said [Gar] Pardy.

    Pardy, a former Canadian ambassador, has led a campaign now joined by almost three dozen former heads of mission defending Richard Colvin, the diplomat-turned-whistleblower in the detainee scandal, who has faced withering attacks on his credibility by the governing Conservatives.

    Project Prism, an investigation into the actions of Canadian government officials who might have had knowledge of or were negligent in the torture ordeal of Arar, was launched following a complaint by Toronto-based lawyer Marlys Edwardh. Edwardh was one of Arar’s team of lawyers. That investigation is believed to be ongoing.

    The RCMP, like the American FBI, is quite protective and conservative. But it does its job, for all that.

    • skdadl says:

      Now, that is a very interesting piece of reporting, eoh. I admire Gar Pardy tremendously, agree with what he’s doing right now, but he’s obviously the one spurring the Star on in that story, and I think he’s trying to put the spurs to the RCMP too.

      After the O’Connor inquiry, the Mounties did have a responsibility to look at the actions of a number of Canadian agents and officials who should have at least suspected that Arar was being tortured at Far’Falastin prison in Damascus, our ambassador of the day famously having testified that, gosh, nope, that just never occurred to him.

      The same issue has arisen in at least a dozen other cases where our agents and representatives have at least played along passively in situations where Canadians were being kidnapped and tortured, or were facing secret legal processes here that appear to have run for some time on tainted testimony from torture victims, or were stranded overseas for similar suspect reasons. Geneva requires state agents to act to prevent abuse, not just wait until they have proof, and yet our governments and mandarins and intel guys have been claiming innocence in one case after another of blatant abuse.

      So now we have another of those, the prisoner transfers in Afghanistan, and for once the evidence is overwhelming the government, and the press and public are paying attention.

      To me, what our CSIS and DFAIT agents have done in several cases where they’ve turned up on site, sometimes conducted interrogations of imprisoned Canadians, and then they and their political masters have done nothing to seek the release of those citizens, have instead shared with the U.S. whatever they learned from their interviews and then just toddled on home — to me, all that is worse, or was worse, than the incompetent bungling that has obviously gone on with prisoner transfers in Afghanistan. And yet day after day, month after month, our PM and defence minister have insisted that there has never been proof, never a scintilla of proof, that any prisoner once in our custody has been handed on to abuse. First of all, that’s not the standard, as people like Pardy have been trying to hammer home, and second … now there is proof.

      I still want to see us go back to Khadr and Arar and the dozen other shocking cases where intentional complicity seems to me even more obvious. But you go to the press with the scandal you’ve got, I guess, and for now, the prisoner transfers are what we’ve got.

      • earlofhuntingdon says:

        I don’t doubt that Bush heavily pressured other governments to cooperate in his illegal wars and torture. Given his defense of state secrets in the UK – threatening to cut off intel cooperation if his secrets are revealed – Mr. Obama seems as capable as any other Chicago pol in doing the same. It’s the ready agreement and a failure to resist, document and investigate when conditions change that are troubling. As powerful as is the US, orbits around other centers of gravity are now sustainable. (True, though, Canada and Mexico are uniquely vulnerable to US pressure.)

    • earlofhuntingdon says:

      Of course, there are investigations designed to reveal, punish and prevent wrongdoing, and investigations designed to hide, enable and allow the repetition of wrongdoing. I have no idea which the RCMP is engaged in here.

  14. WTFOver says:

    ACLU: Obama Has Constructed “A Legal Framework For Impunity”

    http://www.prospect.org/csnc/blogs/tapped_archive?month=12&year=2009&base_name=aclu_obama_has_constructed_a_l

    The ACLU just held a conference call which establishes the civil liberties community’s emerging take on the Obama administration: namely that while Obama has rejected some of the past administration’s excesses, it has continued to shield government lawbreakers from accountability. The call focused on the White House’s decision not to pursue investigations against the architects of the Bush administration’s torture policy. The administration was also criticized for blocking civil suits filed by torture victims and continuing to withhold material relevant to Freedom of Information Act requests regarding torture.

  15. Jeff Kaye says:

    I read Obama’s Nobel speech. What a self-serving load of crap! He hopes no one will notice that, with all his talk of “just wars”, the U.S. was an aggressor nation that invaded Iraq. Obama says that war is “winding down.” There is no discussion of accountability for that crime. And we’re simply supposed to take the word of the aggressor nation that the war is “winding down”? I have my doubts.

    As for torture, the truth is the United States is still a torturing nation. I laid out the case that the Army Field Manual for interrogation — which the Obama administration has officially embraced — is in violation of the Geneva Conventions and the Convention Against Torture, a position supported by the Center for Constitutional Rights and others. (See CCR’s statement: “Close Torture Loopholes in the Army Field Manual”.)

    Furthermore, reliable reports in the press, which EW has highlighted here, demonstrate that abuse still continues at black sites run by Special Operations, or at least at the large black site run at Bagram. Meanwhile, the Obama administration seeks to perpetuate indefinite detention, which in itself is a form of cruel, inhumane, and degrading treatment that one could say was itself a form of torture.

    As the ACLU notes at their Accountability website, we are just now beginning to understand the full scope of the torture program. There is no reason, I’d add, to believe that aspects of that torture program, and the agencies and individuals involved, are not still in place now, despite the supposed prohibition on torture. As a well-known member of the military who recently contacted me made clear, it’s very possible that the U.S. is hiding behind purported differences between torture and “abuse”, or cruel, inhumane and degrading treatment (CIDT), and the Obama prohibition on torture is not necessarily a prohibition on CIDT. (Both, btw, are banned by the Convention Against Torture.)

    What’s past is prologue…

  16. worldwidehappiness says:

    Obama said:

    I believe the United States of America must remain a standard bearer in the conduct of war.

    I think war should be illegal.

    There should be an international police force for stopping war, dictatorship, and terrorism.

  17. alinaustex says:

    Could the Canadian inquiry lead to American officials being called to testify -and if so would there be any requirement that said officials testify ?
    May we all find a few dollars to send the ACLU -they are a truly a Blessing for all us who hold dear our civil liberties…

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