Posts

Happy “Dirty Your Hands” by Partnering with Bashar al-Assad Day

/8 Comments/in , , , /by

The Colbert Report
Get More: Colbert Report Full Episodes,Video Archive

 

As I noted last week, 12 years ago today, President Bush signed the Memorandum of Notification that governed — and as of last year, at least, still governs — our war on terror.

Part of that MON, according to Bob Woodward’s Bush at War, includes partnering with “rogue regimes” like Syria on intelligence collection.

[Tenet] called for initiating intelligence contact with some rogue states such as Libya and Syria that he said might be helpful in trying to destroy al Qaeda. For the CIA to obtain helpful information against the terrorists, they might have to get their hands dirty.

After signing that MON, Bush’s own regime sent people like Maher Arar off to be tortured by Bashar al-Assad’s government.

The same guy we almost went to war against last week because he’s so barbaric, we partnered with, in a policy set by the President, outsourcing our torture.

As of May 25, 2012, the government was still relying on this MON (probably, at a minimum, to cover the drone and other method assassinations that aren’t covered by any AUMF).

I already noted all this; I wasn’t going to otherwise call out the anniversary of the day the “Gloves Came Off.”

But then I saw this clip of Philip Mudd on Colbert. About halfway through, Mudd says we have to fight Syria because Assad is,

a tyrant who has a reckless abandon when he murders innocents. At what point do you draw a line and say we are not just US citizens, we’re global citizens?

Mudd then goes on to answer a question about whether he tortured prisoners by saying he was Deputy Director of the Counterterrorism Center, which held and tortured prisoners.

He doesn’t regret that, he says.

He then goes on to admit he signed papers to render prisoners.

Mudd: If you’re asking if I’m responsible for some of that, the answer’s yes.

Colbert: Alright, you think that was the right thing to do.

Mudd: Yes.

Colbert: And we renditioned some of those people to Syria.

Mudd: Uh, I think the answer’s yes, I don’t [shakes head]

Colbert: OK

Mudd: We rendered a lot of people.

At what point do you draw a line, says this man, who can’t even remember that Syria was indeed one of the countries we outsourced our torture to, even the torture of an innocent man. We must be global citizens, not just American citizens, he says, and doing anything else is a sign of cowardice.

And yet, this intelligence expert can’t even figure out why Assad thinks he can get away with murdering his own people.

American Dirty Hands and Chain of Command

/15 Comments/in , , /by

[Tenet] called for initiating intelligence contact with some rogue states such as Libya and Syria that he said might be helpful in trying to destroy al Qaeda. For the CIA to obtain helpful information against the terrorists, they might have to get their hands dirty. — Bob Woodward, Bush at War

On September 15, 2001, George Tenet presented Cofer Black’s plan to respond to 9/11 to George Bush. It included rendering suspects to allied torturers including Egypt, partnering with rogue regimes including Bashar al-Assad’s, and ultimately capturing and torturing suspects ourselves.

On September 17, 2001, George Bush implemented that plan by signing a Memorandum of Notification reflecting vague outlines of it.

George Bush’s signature on that document led directly the torture of Ibn Sheikh al-Libi in Omar Suleiman’s hands and Binyam Mohammed’s torture in Pakistani custody, both before DOJ’s Office of Legal Counsel gave its sanction to torture. In addition, it led to Maher Arar’s torture in Assad’s hands outside the terms permissible in our rendition program.

Yet as these details of George Bush’s personal implication in torture became clear, President Obama hid it, both with repeated state secrets invocations and by hiding official confirmation of the existence of that document with Bush’s signature on it. The Administration succeeded in hiding that official confirmation by arguing — just last year! — that it was still relying on that document that also endorsed partnering with Assad. (There’s reason to believe that that document which authorized partnering with Assad also served to authorize some of our drone assassinations, including at least the first attempt against Anwar al-Awlaki.)

Meanwhile, the most independent assessment of the August 21 chemical weapons strike — from Human Rights Watch — still has the same gap as every other case does: while it concludes the CW were launched by Assad’s regime, it provides no evidence that it was launched on his orders.

The evidence examined by Human Rights Watch strongly suggests that the August 21 chemical weapon attacks on Eastern and Western Ghouta were carried out by government forces. Our basis for this finding is:

  • The large-scale nature of the attacks, involving at least a dozen surface-to-surface rockets affecting two different neighborhoods in Damascus countryside situated 16 kilometers apart, and surrounded by major Syrian government military positions.
  • One of the types of rockets used in the attack, the 330mm rocket system – likely Syrian produced, which appear to be have been used in a number of alleged chemical weapon attacks, has been filmed in at least two instances in the hands of government forces. The second type of rocket, the Soviet-produced 140mm rocket, which can carry Sarin, is listed as a weapon known to be in Syrian government weapon stocks. Both rockets have never been reported to be in the possession of the opposition. Nor is there any footage or other evidence that the armed opposition has the vehicle-mounted launchers needed to fire these rockets.
  • The August 21 attacks were a sophisticated military attack, requiring large amounts of nerve agent (each 330mm warhead is estimated to contain between 50 and 60 liters of agent), specialized procedures to load the warheads with the nerve agent, and specialized launchers to launch the rockets

Obviously Assad has not yet publicly named — much less condemned — anyone within his regime for doing this (but then, only about 14 Americans have ever paid a price the systematic torture authorized by that Bush signature). If this deal with the Russians actually happens, naming and prosecuting the persons responsible for the August 21 attack should be part of the agreement. 

But there is a fundamental problem with America launching a war against Assad for the August CW attack based on chain of command arguments (or “common sense,” as its most recent incarnation has it). That’s because, with all the legal problems surrounding any intervention on our part (especially without UN sanction, which may change under the Russian deal), there are such clear and ongoing instances where, even with clear evidence of human rights violations done under nothing but Presidential authorization, the US doesn’t hold its own responsible.

There was a time when US violations of human rights norms weren’t so clearly documented (though the definitely existed). But now that they are, to claim we have the moral authority to hold Bashar al-Assad responsible based on a chain of command argument when we won’t even hold our own responsible for partnering with him in human rights crimes is particularly problematic.

As human rights hypocrites ourselves, that makes us not even global policemen, but rather simple enforcers when it serves our geopolitical interests.

Please support the Emptywheel fundraiser.

Obama Looking for Structures to Ensure He Abides by Rule of Law

/19 Comments/in , , , , , /by


Noah Shachtman does a good job of fact checking Obama’s claims about his drone program in a recent interview with Jessica Yellin.

But I’d like to push further on his comments about Obama’s claims to give Anwar al-Awlaki and Samir Khan (to say nothing of Abdulrahman al-Awlaki) due process by pointing to the way he ends this bit:

Our most powerful tool over the long term to reduce the terrorist threat is to live up to our values and to be able to shape public opinion not just here but around the world that senseless violence is not a way to resolve political differences. And so it’s very important for the President and for the entire culture of our national security team to continually ask tough questions about, are we doing the right thing? Are we abiding by rule of law? Are we abiding by due process? And then set up structures and institutional checks so that you avoid any kind of slippery slope into a place where we’re not being true to who we are.

Having started by saying that drones are just a tool, he ends up by saying that we will vanquish terrorism by upholding our values–rule of law and due process.

And then the Constitution Professor President describes “set[ting] up structures and institutional checks” to make sure that we deliver rule of law and due process.

This, from the guy whose Administration refused to litigate a suit from Anwar al-Awlaki’s father to make sure it was upholding the standards Obama claimed in this interview in Awlaki’s case.

This, from the guy whose Administration has claimed state secrets to make sure no court can review the claims of people who have been rendered or tortured or illegally wiretapped.

This, from the guy who wouldn’t do the politically difficult things to have Khalid Sheikh Mohammed tried–and surely, convicted–before a civilian court in NYC.

He’s looking for structures and institutional checks to make sure we don’t go down that slippery slope where we forget rule of law. And yet his Administration has repeatedly avoided the one mandated by the Constitution: courts.

Which, according to his own logic, means he’s not using the tool that would best work to keep us safe from terrorism.

Lost Among the Findings in Syria

/7 Comments/in , , /by

The Neocons have been pressuring Obama to do something in Syria. So it’s thoroughly unsurprising that we’re officially learning what we’ve known for months: the CIA has been involved in Syria. According to Mark Hosenball the Finding Obama signed authorizing such actions permits us to collaborate at a “secret” command center on or close to our air base at Incirlik.

A U.S. government source acknowledged that under provisions of the presidential finding, the United States was collaborating with a secret command center operated by Turkey and its allies.

[snip]

This “nerve center” is in Adana, a city in southern Turkey about 60 miles from the Syrian border, which is also home to Incirlik, a U.S. air base where U.S. military and intelligence agencies maintain a substantial presence.

The Finding doesn’t authorize arming the rebels (though Hosenball’s sources seem unsure about the general scope of the Finding), but NBC has reported that the Saudis and Qataris have already armed them with shoulder-launched missiles.

It’s just like old times! The US partnering with Saudis to get shoulder-launched missiles into the hands of rebels with dubious loyalties. Whatever could go wrong with that?

There are two details about this that deserve notice.

What happened to the leak hawks in Congress?

First, this story is based on the leak of a covert Finding–precisely the kind of leak that Congress has gone on the warpath against. Hosenball attributes his reporting to US sources–an attribution that can (though doesn’t necessarily) refer to Congressional sources.

U.S. sources familiar with the matter said.

[snip]

A U.S. government source acknowledged

And while he notes–and names–the Senators who have been pressuring Obama to do precisely what he has been doing for months, Hosenball doesn’t name the members of Congress who are opposed to such an action.

Some U.S. lawmakers, such as Republican Senators John McCain and Lindsey Graham, have criticized Obama for moving too slowly to assist the rebels and have suggested the U.S. government should become directly involved in arming Assad’s opponents.

Other lawmakers have suggested caution, saying too little is known about the many rebel groups.

In short, chances are not insignificant that a Congressional source leaked the contents of a Finding authorizing covert operations.

And yet … crickets!

Those same Senate Intelligence Committee leak hawks who have authorized a range of stupid actions to prevent leaks seem unperturbed by a leak revealing information that is as sensitive as the leaks they’re demanding be investigated.

How does anti-Assad Finding relate to the Assad-cooperation authorized under the Gloves Come Off Memorandum of Notification?

Then there’s this. In his description of all the things included in the Gloves Come Off Memorandum of Notification authorizing the war on terror, Bob Woodward said cooperation with Syria (and Libya) were included.

[George Tenet] called for initiating intelligence contact with some rogue states such as Libya and Syria that he said might be helpful in trying to destroy al Qaeda. For the CIA to obtain helpful information against the terrorists, they might have to get their hands dirty. (Bush at War 77)

We know the MON included such cooperation with Libya because liberated documents have reflected cooperation on renditions. And Maher Arar, who was rendered to Syria and tortured, can tell you all about what our cooperation with Syria entailed.

The thing is, the MON authorizing cooperation with Syria remains in effect. We know that to be true because Judge Richard Wesley, in enabling the government to keep all mention of this MON secret a few months ago, stated it pertained to “active intelligence activity.” Rather than writing a new MON–one that doesn’t give CIA carte blanche in deciding the limits of things like targeted killings–Obama is still relying on this MON for things like killing American citizens.

So does that mean the CIA is at once authorized to share intelligence with Bashar al-Assad (under the Gloves Come Off MON) and help rebels overthrow and probably kill him (under this new Finding)?

Probably, there is a very simple explanation for this (and for the fact that we helped to kill Moammar Qaddafi, as well). Probably, the new FInding (and whatever Finding authorized the activities our spooks engaged in in Libya) simply includes language canceling the prior language authorizing cooperation with Assad. So no big deal, really.

Still, doesn’t that give lie to the Administration’s seeming treatment of that 11 year old MON as inviolate? That is, if this Finding renders (heh) part of that MON meaningless, then maybe it wouldn’t be so hard for Obama to write a new MON, one that involved actual oversight.

Larry Thompson: From Rendering Maher Arar to Pushing Pop to Teaching Lawyers

/in /by

Oh is Mary going to love this.

As she has tirelessly reminded us over the years, Larry Thompson, the former Deputy Attorney General who signed off on Maher Arar’s rendition to Syria to be tortured, has spent the last 7 years at PepsiCo serving as their General Counsel.

But he’s got a new job: as a law professor at University of Georgia.

Now, it appears he’ll just be teaching corporate law and white collar crime and not–like John Yoo at Berkeley–constitutional law.

But it’s yet another example of a top Bush lawyer who, after abusing the rule of law while in government, is being rewarded with a job teaching the next generation of lawyers.

Here’s what the Center for Constitutional Rights had to say about the move (remember they’ve represented Arar):

The Center for Constitutional Rights is profoundly concerned at the news that the University of Georgia School of Law has hired former Deputy Attorney General Larry Thompson as a permanent member of its law school faculty.  Mr. Thompson played a prominent role in the extraordinary rendition of our client, Maher Arar, to Syria where he was tortured and detained for a year.  Mr. Arar’s case caused international outrage that led the Canadian government to launch a public inquiry, exonerate him of any wrongdoing, acknowledge their role in his treatment, and compensate him.  It would be shocking if the Law School were aware of Mr. Thompson’s role in this case and hired him nonetheless.  The notion that Mr. Thompson should be held out as a model for future law students when in fact he should be, at a bare minimum, investigated for his role in Mr. Arar’s rendition to torture is astonishing.  We call on the Law School to investigate and reconsider its appointment of Mr. Thompson accordingly.  Anything short of a full investigation into this matter would bring into question the integrity of The University of Georgia School of Law.

SCOTUS Denies Cert for Maher Arar

/57 Comments/in /by

Apparently, this country has deemed it okay to take an innocent Canadian citizen transiting through US airports and instead send them to a third country to be tortured. That seems to be the lesson from SCOTUS’ decision to deny Maher Arar cert in his suit against the US. From a CCR press release on the decision:

Today, the United States Supreme Court decided not to hear the Center for Constitutional Rights (CCR) case on behalf of Canadian citizen Maher Arar against U.S. officials for their role in sending him to Syria to be tortured and detained for a year.

The decision of the U.S. Court of Appeals for the Second Circuit, which the Supreme Court declined to review, was decided on the legal ground that Congress, not the courts, must authorize a remedy. As a result, the substance of Mr. Arar’s case, first filed in January 2004, has never been heard and now never will be.

Mr. Arar said, “Today’s decision eliminates my last bit of hope in the judicial system of the United States. When it comes to ‘national security’ matters the judicial system has willingly abandoned its sacred role of ensuring that no one is above the law. My case and other cases brought by human beings who were tortured have been thrown out by U.S. courts based on dubious government claims. Unless the American people stand up for justice they will soon see their hard-won civil liberties taken away from them as well.”

Last month, the Obama administration chose to weigh in on Mr. Arar’s case for the first time. The Obama administration could have settled the case, recognizing the wrongs done to Mr. Arar as Canada has done. (Canada conducted a full investigation, admitting wrongdoing, exonerated Mr. Arar, apologized, and paid him $10 million in damages for their part in his injuries.) Yet the Obama administration chose to come to the defense of Bush administration officials, arguing that even if they conspired to send Maher Arar to torture, they should not be held accountable by the judiciary.

Said CCR cooperating attorney David Cole, “The courts have regrettably refused to right the egregious wrong done to Maher Arar. But the courts have never questioned that a wrong was done. They have simply said that it is up to the political branches to fashion a remedy. We are deeply disappointed that the courts have shirked their responsibility. But this decision only underscores the moral responsibility of those to whom the courts deferred – President Obama and Congress – to do the right thing and redress Arar’s injuries.”

Lower courts concluded that Mr. Arar’s suit raised too many sensitive foreign policy and secrecy issues to allow his case to proceed, and that therefore it was the role of the political branches to authorize a remedy.

The decision does not bode well for either state secrets cases or for suits trying to hold Bush Administration officials responsible for torture (such as the Yoo appeal being heard in the 9th Circuit today).

Which I guess means we’ve officially become a country that finds protecting those who commit torture more important than justice for those who were tortured.

Elena Kagan and Maher Arar

/72 Comments/in /by

Remember how I suggested one of the bright sides of Elena Kagen’s nomination to SCOTUS would make Republican heads explode when they realize Hamdan lawyer Neal Katyal may be Acting Solicitor General?

Well, keep your eye out for splattered fearmonger brains, because Katyal just signed a document as the Acting Solicitor General.

Though perhaps their heads won’t explode.

Because, as Lyle Denniston points out, Katyal’s assumption of the Acting role here significantly diminishes Maher Arar’s chances of getting his suit against the federal government for his rendition to Syria and torture heard by the Supreme Court.

The Supreme Court has not yet scheduled Arar’s case for its initial examination.  The Justices are expected to do so, however, before the current Term ends in late June.  Justice Sonia Sotomayor, who as a Second Circuit judge had taken part in the lower court’s en banc hearing (but not its decision) has not yet indicated whether she would take part in the case as it proceeds in the Supreme Court.  So far, the Court has not issued any orders in the case that would show whether she had opted to take part.  Her recusal, however, appears likely.

If the Court were to grant review of the case, it would not be heard and decided until the next Term, starting Oct. 4.  Justice John Paul Stevens will no longer be on the Court then, and Kagan, if approved by the Senate, could be on the bench by then.

The Court’s changing membership, and the prospect that Justice Sotomayor would not participate in the Arar case, might not only have an impact on how the Court would rule if it took on the case, but may well influence whether it is willing to grant review at all.   If, as expected, the case is put to an initial vote this Term on the question of review, the Justices could be deterred from voting to grant because of the possibility of a 4-4 split were the case to be decided. assuming Sotomayor’s recusal.  (Justice Stevens is expected to be on hand for that initial vote.)

If the case were granted, the question would arise whether a new Justice Kagan (assuming Senate confirmation) would take part in the decision.  Although she did not sign the U.S. brief filed Wednesday, it seems highly likely that she had participated in internal discussions of the position the government would take in that brief, and thus might feel compelled to disqualify herself from its consideration by the Court.  That would raise the prospect of a 4-3 split, with the Court’s four most conservative Justices in the majority.  That is a prospect that perhaps could lead those four to vote for review, but could lead the Court’s more liberal Justices to refrain from supporting review.  (Both a 4-4 split, without Sotomayor, and a 4-3 split, without Sotomayor and Kagan, would probably result only if Justice Anthony M. Kennedy declined to side with his more conservative colleagues and voted with the more liberal Justices.)

This elaborates on a point that Michael Isikoff already wrote about–the way in which Kagan’s nomination and probable confirmation increases the chances that SCOTUS will back Bush and Obama Administration policies on counterterrorism.

Whatever her merits as the next Supreme Court justice, Elena Kagan’s selection provides a hidden benefit for President Obama’s national-security team: it significantly boosts its chances of prevailing in controversial claims to the court involving the war on terrorism.

The reason: Kagan will inevitably have to recuse herself from an array of cases where she has already signed off on positions staked out by the Obama administration relating to the detention of terror suspects and the reach of executive power. As a result, the seat occupied by Justice John Paul Stevens—the most forceful advocate on the court for curbing presidential power—will be replaced by a justice who, on some major cases over the next few years, won’t be voting at all.

“If you are litigating on behalf of Bagram detainees, the skies just got a lot darker today,” said Ben Wittes, a legal-affairs analyst at the Brookings Institution.

Now, there is an exception to this premise: those cases coming out of the 9th Circuit (which might include the Jeppesen suit, the al-Haramain case, and the Padilla-Yoo suit). If the 9th circuit rules in favor of the plaintiffs in any of these cases, and Kagan’s likely recusal were to create a tie in SCOTUS (assuming Kennedy voted with the liberal judges, which might be even more likely for cases coming through the 9th), that would leave the 9th circuit decision intact.

Nevertheless, none of that is going to help Maher Arar obtain some kind of justice for his kidnapping and torture at the hands of Americans.

Oh, and on whether or not the fearmongers’ heads will explode at Katyal’s involvement? The brief signed by Katyal contends that the torture of Arar is incidental to this suit.

This case does not concern the propriety of torture or whether it should be “countenance[d]” by the courts. Pet. 14. Torture is flatly illegal and the government has repudiated it in the strongest terms. Federal law makes it a criminal offense to engage in torture, to attempt to commit torture, or to conspire to commit torture outside the United States. See 18 U.S.C. 2340A. The President has stated unequivocally that the United States does not engage in torture. See May 21, 2009 Remarks by the President on National Security; cf. Exec. Order No. 13,491, § 3, 74 Fed. Reg. 4894 (Jan. 22, 2009) (directing that individuals detained during armed conflict “shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture)).”

I’m particularly bemused by Katyal’s reliance on Obama’s repudiation of torture. I realize that Obama’s repudiation is somewhat more credible than the many times that Bush claimed we did not torture (though less and less so of late). But it would seem particularly relevant that even while Bush was proclaiming his opposition to torture, detainees in our custody and held overseas at our behest were being tortured during precisely the same time period that Arar was rendered to be tortured in Syria.

Nevertheless, Hamdan attorney and now Acting Solicitor General Neal Katyal says that the issue is not Arar’s torture, but narrow questions of whether Arar can even ask for some relief in the US Courts.

Maher Arar Gets A(nother) Day in Court

/in /by

On June 30, the 2nd District Court of Appeals rejected Maher Arar’s suit against the US government for sending him to Syria to be tortured. That decision came almost a month after the Dpartment of Homeland Security Inspector General released a report showing–even in its redacted form–that Arar had repeatedly warned that he would be tortured if sent to Syria, and that the INS folks knew that there was a high likelihood that Arar was right.

Perhaps it took the judges on the Appeals Court some time to really digest the report, because today they announced the entire court will rehear his appeal.

The Second Circuit Court of Appeals issued an extremely rare order that the case of Canadian rendition victim Maher Arar would be heard en banc by all of the active judges on the Second Circuit on December 9, 2008. For the court to issue the order sua sponte, that is, of its own accord without either party submitting papers requesting a rehearing, is even more rare.

“We are very encouraged,” said CCR attorney Maria LaHood. “For the court to take such extraordinary action on its own indicates the importance the judges place on the case and means that Maher may finally see justice in this country. As the dissenting judge noted, the majority’s opinion gave federal officials the license to ‘violate constitutional rights with virtual impunity.’ Now the court has the opportunity to uphold the law and hold accountable the U.S. officials who sent Maher to be tortured.”

One more thing may factor into this reversal. Recall that, when the DHS IG testified on the report, he said he was reopening his investigation into Arar’s rendition.

Interestingly, in his own testimony today, the Homeland Security IG states that "we have reopened our review into the Mr. Arar matter because, less than a month ago, we received additional information that contradicts one of the conclusions in our report. As such, we are in the process of conducting additional interviews to determine the validity of this information to the extent we can."

So maybe, pursuant to that reopened investigation, the Appeals Court knows of new information?

Is it possible that Arar will yet have the opportunity to prove his case against Larry Thompson and others, who sent him to be tortured in Syria?

The DHS Report on Maher Arar

/38 Comments/in /by

Marty Lederman links to the DHS OIG report on Maher Arar’s transfer to and subsequent torture in Syria. It’s really really ugly reading, even though they’ve obviously redacted a lot of the paragraphs that ought to reveal the decision making process by which we decided sending Arar home to Canada or even to Switzerland so instead sent him to be tortured (many of the redacted paragraphs are marked with "U’s,"
signifying they’re unclassified).

Anyway, some more light reading to bring with me on my trip to Minneaplis this weekend for the Media Reform Conference.

In the meantime, I’m struck by this bit from Marty:

Interestingly, in his own testimony today, the Homeland Security IG states that "we have reopened our review into the Mr. Arar matter because, less than a month ago, we received additional information that contradicts one of the conclusions in our report. As such, we are in the process of conducting additional interviews to determine the validity of this information to the extent we can."

It’s not clear what the IG is treating as conclusions. But one of the big issues in the report–predictably–was how the hell it was that DOJ reviewed Syria’s human rights record and didn’t notice (right, yeah) that Arar was likely to be tortured. So I’m curious if the IG learned some new details about that decision-making process.