Tortured Confession Evidence Tossed In First Day Of Hamdan Trial

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The Bushco Torture Brigade is on a bad luck streak in dancing school. Four beatdowns by the Supreme Court on the legality/Constitutionality of their torture and trial program is beyond bad. Four drubbings of this type for a Presidential Administration, during a supposed time of war, is simply unheard of.

When Bushco got the ruling late last week that they could proceed with their first gulag trial against Salim Hamdan, they were ecstatic. Smug in the self satisfaction that the first show trial, of the many they have been pining for, would not be further delayed, Hamdan was rushed to the Guantanamo dock and the trial commenced this morning. So far, so good.

But wait, there’s more; and it’s not good for Bushco’s cherished show trial dreams. Not even one full day into the show, and even the hand selected military judge, Keith Allred, is sending Bushco up the proverbial creek without their torture evidence paddle. From the CBC:

Judge Keith Allred, the navy captain presiding at the trial, decided Monday to bar evidence obtained from Hamdan by interrogators under “highly coercive” conditions in Afghanistan, saying prosecutors cannot use statements he made shortly after his capture at the Bagram air base and Panshir in Afghanistan.

Hamdan has said he endured beatings and solitary confinement at those locations.

The judge left the door open for the prosecution to use other statements Hamdan gave elsewhere in Afghanistan and at Guantanamo.

Michael Berrigan, the deputy chief defence counsel, described the ruling as a major blow to the tribunal system that allows hearsay and evidence obtained through coercion.

“It’s a very significant ruling because these prosecutions are built to make full advantage of statements obtained from detainees,” he said.

Berrigan is exactly right, this is a major blow. And it is a blow with far reaching consequences too, because it sets the tone, in an absolutely blistering manner, for the considerations on the Habeas petitions about to be considered by Royce Lamberth’s designated judge, Tom Hogan. What will the government do now? Ah, well…

Prosecutors are considering whether to appeal the judge’s ruling — a development that could halt the trial of Salim Hamdan that began earlier Monday after years of delays and legal setbacks.

“We need to evaluate … to what extent it has an impact on our ability to fully portray his criminality in this case, but also what it might set out Read more →

Bush Doesn’t Want to Be Forbidden to Torture, Even If You Don’t Tell the Terrorists

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In yesterday’s chat about detainee treatment, I asked Carl Levin if he had suggestions for ways to improve intelligence oversight.

Which raises another good point.

Senator Levin, what can we do to improve intelligence oversight? Just before this chat started, Trent Franks proposed calling Speaker Pelosi and Jane Harman before HJC to testify about how they reacted in briefings on interrogation methods. There’s also the example of FISA.

What can we do to enable Administrations to present information to Congress in classified fashion–but make it possible for those Members of Congress on oversight positions to do something if they find the Administration policies are illegal?

Senator Levin responded:

Congress has three powers that can be used: they can pass a law, even in classified form as a classified annex to an unclassified bill (such as the intelligence authorization bill), second, the power of the purse which can be carried out in a classified or unclassified manner, and third there is of course our oversight power and responsibility. [my emphasis]

To which Jim White astutely asked this question:

What did you think of his mentioning of the ability of Congress to pass classified annex to the public versions of bills. Should we be hoping that there has been a little more oversight through this route? I haven’t heard much discussion on this front. He seems to be pointing us to the Intelligence Authorization Bill in this regard.

As it happens, Bush issued a veto threat of the House Intelligence Authorization Bill today. And look at one of Bush’s objections to the bill (h/t Steven Aftergood):

Secret Law. Section 317 would incorporate by reference all reporting requirements in the classified annex into the act, thereby making them a requirement in law. The Administration strongly opposes the imposition of reporting requirements in this opaque manner. Further, such a provision would remove the flexibility that Congress and the Executive branch would otherwise have to modify and adapt provisions in the classified annex to meet changing conditions and requirements without seeking a statutory change.

Now, I have no clue what it is in the annex that Bush is objecting to. Read more →

Dougie Feith Visits HJC

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Before Nadler’s Subcommittee. I’ll liveblog until Levin shows up at FDL–note, there’s an 11 ET vote scheduled in the Senate, so Levin’s likely to show up closer to 11:15.

Nadler speaking now: "Perhaps there’s something in the WH drinking water these days that causes amnesia."

Also note, the Republicans are in a really ornery mood. When Nadler moved to assert the ability to recess without objection, Franks objected. Should be interesting–looks like Darrell Issa’s ready to do his thing.

Franks: Speaker Pelosi never objected. Zubaydah caught building a bomb. Complains about Nadler’s statement that Republicans can’t respond to a request for ticking bomb scenario. "Tenth hearing dedicated to protecting the rights of terrorists."

Conyers: Can Franks tell us about the ten hearings?

Franks: I think this is one of the examples, this is a repetitive hearing.

Conyers: Can I have a list of the hearing? This is the Constitutional Committee of the Judiciary. This is to protect the rights of Americans. To prevent our own government from violating the laws and treaties that pertain to torture. I counted some hearings myself. This is the fourth hearing. The first hearing was when Sands came. Ordered from the top, not a few bad apples. Dan Levin, told us flaws in Professor Yoo’s memos. Forced out of OLC while attempt to impose constraints on torture. Wilkinson, Powell worried about torture and the President was complicit. Third hearing Yoo and Addington. Could not or would not remember the facts. Fourth hearing was necessitated bc we had trouble getting Feith to the hearing. Khadr kept up 50 days, ICRC, Administration committed war crimes. Taguba has also written that war crimes were committed. How high does responsibility go? Mukasey refuses to appoint special counsel. Said these people acted in good faith, so not fair to prosecute them. That starts out sounding fairly reasonable. But let’s look more closely.

Update on Levin chat: It is back to the original time: 11AM.

King: 9/11 9/11 9/11. Success success success. People on this committee despise the Administration. People here disagree with that legal analysis. Let’s think about what Dougie was thinking when the open hole was still smoking.

Nadler: Point out, regardless of the situation of the country, we do have laws, that’s what distinguishes us from other countries. Read more →

Helgerson and Cheney

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It’s going to be a busy day for me, but one thing I’m hoping to do is nick down to Borders (hey, this branch is unionized, and Borders is local to Ann Arbor) to buy Jane Mayer’s new book. If for no other reason then to find out more about the meeting between John Helgerson, the CIA Inspector General, and Dick Cheney.

One of the lingering mysteries in Washington has been what happened to the CIA internal probe into homicides involving the program. You note that CIA Inspector General (IG) John Helgerson undertook a study and initially concluded, just as the Red Cross and most legal authorities in the United States and around the world, that the program was illegal and raised serious war crimes issues. Helgerson was summoned repeatedly to meet privately with Vice President Cheney, the man who provided the impetus for the program, and it appears as a result of these meetings the IG’s report was simply shut down. Would those probes have brought into question the Justice Department’s specific approval of torture techniques used by the CIA–approval that involved not just John Yoo, but much more specifically Michael Chertoff and Alice Fisher, the two figures who ran the criminal division?

The fact that John Helgerson—the inspector general at the CIA who is supposed to act as an independent watchdog—was called in by Cheney to discuss his tough report in 2004 is definitely surprising news. Asked for comment, Helgerson through the CIA spokesman denied he felt pressured in any way by Cheney. But others I interviewed have described the IG’s office to me as extremely politicized. They have also suggested it was very unusual that the Vice President interjected himself into the work of the IG. Fred Hitz, who had the same post in previous administrations, told me that no vice president had ever met with him. He thought it highly unusual.

Helgerson’s 2004 report had been described to me as very disturbing, the size of two Manhattan phone books, and full of terrible descriptions of mistreatment. The confirmation that Helgerson was called in to talk with Cheney about it proves that–as early as then–the Vice President’s office was fully aware that there were allegations of serious wrongdoing in The Program.

We know that in addition, the IG investigated several alleged homicides involving CIA detainees, and that Helgerson’s office forwarded several to the Justice Department for further consideration and potential prosecution. Read more →

Senator Levin to Do Live Chat on Ongoing Senate Investigation into Detainee Abuse at 11 ET Tuesday

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levinhighres.thumbnail.jpgWe had a very engaged liveblog discussion during the Senate Armed Services Committee’s hearing on Detainee Abuse a few weeks ago. Tomorrow, the Chair of the Committee, Senator Carl Levin, will do a live chat at FDL to talk about the next steps in the Committee’s investigation. Senator Levin will join us at 11 AM ET on Tuesday.

In his statement from that earlier hearing, Levin gave a detailed description of how DOD adapted its SERE training techniques for use on prisoners.

So, how did it come about that American military personnel stripped detainees naked, put them in stress positions, used dogs to scare them, put leashes around their necks to humiliate them, hooded them, deprived them of sleep, and blasted music at them. Were these actions the result of “a few bad apples” acting on their own? It would be a lot easier to accept if it were. But that’s not the case. The truth is that senior officials in the United States government sought information on aggressive techniques, twisted the law to create the appearance of their legality, and authorized their use against detainees. In the process, they damaged our ability to collect intelligence that could save lives.

Today’s hearing will explore part of the story: how it came about that techniques, called SERE resistance training techniques, which are used to teach American soldiers to resist abusive interrogations by enemies that refuse to follow the Geneva Conventions, were turned on their head and sanctioned by Department of Defense officials for use offensively against detainees.

During June’s hearing, a lot of new questions were raised (and DOD General Counsel Jim Haynes proved to have as fuzzy a memory as every other senior Bush official). Tomorrow, join us to talk with Senator Levin about how the investigation will move forward.

Mukasey Flip Flops on Pixie Dust

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Back during Michael Mukasey’s confirmation hearings, Sheldon Whitehouse got Michael Mukasey to commit that, when a President changes an executive order, he appropriately should actually change the executive order–so schmoes like you and I can know what the President is actually doing.

2. Do you believe that the President may act contrary to a valid executive order? In the event he does, need he amend the executive order or provide any notice that he is acting contrary to the executive order?

ANSWER: Executive orders reflect the directives of the President. Should an executive order apply to the President and he determines that the order should be modified, the appropriate course would be for him to issue a new order or to amend the prior order.

A few months later, we learned why Whitehouse had asked Mukasey the question–because Bush was claiming that he didn’t need to change his own executive orders, specifically EO 12333–which Americans would have believed protected them against wiretapping when they were overseas.

Let’s start with number one. Bear in mind that the so-called Protect America Act that was stampeded through this great body in August provides no – zero – statutory protections for Americans traveling abroad from government wiretapping. None if you’re a businesswoman traveling on business overseas, none if you’re a father taking the kids to the Caribbean, none if you’re visiting uncles or aunts in Italy or Ireland, none even if you’re a soldier in the uniform of the United States posted overseas. The Bush Administration provided in that hastily-passed law no statutory restrictions on their ability to wiretap you at will, to tap your cell phone, your e-mail, whatever.

The only restriction is an executive order called 12333, which limits executive branch surveillance to Americans who the Attorney General determines to be agents of a foreign power. That’s what the executive order says.

But what does this administration say about executive orders?

An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.

"Whenever (the President) wishes to depart from the terms of a previous executive order," he may do so because "an executive order cannot limit a President." Read more →

Pentagon Charges the Third Detainee Who Was Water-Boarded

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The Pentagon charged Abd al Rahim al Nashiri in relation to the USS Cole bombing today (and click through for links to the charging documents and more).

The Pentagon Monday announced a proposed death penalty prosecution of a Saudi man at Guantánamo, alleging he organized the October 2000 suicide bombing of the USS Cole off Aden, Yemen, that killed 17 American sailors.

The 11-page charge sheets, signed by a Marine major, accuse Abd al Rahim al Nashiri, 43, of conspiracy, murder and other law of war violations.

It seeks to try him by military commission at the U.S. Navy base in southeast Cuba, and execute him if convicted.

This one will be interesting.

As you recall, the CIA has admitted to water-boarding three detainees: Abu Zubaydah, Khalid Sheikh Mohammed, and al-Nashiri.

Abu Zubaydah remains uncharged at the moment. Perhaps they think he’s too crazy to stand trial. Perhaps, once they realized he was a glorified travel agent, they didn’t want to try him. Perhaps they simply don’t have the evidence. But for some reason, after accusing Abu Zubaydah of being a 9/11 mastermind for years, they haven’t included him in the batch of people they’re trying for 9/11.

Then there’s KSM. KSM appears ready to lead his four co-defendants straight to the gallows in hopes of becoming martyrs to the cause. And the Bush Show Trial administrators seem only too happy to go along. Thus, while KSM has already repeatedly raised the torture used on him in the one public hearing he had, it won’t make much difference so long as he continues to request to be killed.

Finally, there’s Nashiri. Though there appears to be abundant evidence tying Nashiri to the Cole bombing, the Administration hasn’t vilified (or glorified, if you’re KSM) him like they have other high value detainees. To most Americans, I’d guess, he’s a rather anonymous terrorist.

But Nashiri, unlike KSM, is fighting his charges.

In March 2007, according to a partially censored Pentagon transcript, Nashiri told U.S. military officers at Guantánamo that he concocted the confession to please his captors. ”From the time I was arrested five years ago, they have been torturing me,” he said then.

Which, for all that KSM wants and seems capable of orchestrating a collective martyrdom, means Nashiri’s trial will be particularly interesting. Given that he claims his confession was false, it’ll really expose how the Gitmo Show Trials will deal with people who claim to be being falsely Read more →

David Addington and The Barnacle Branch Exhibits

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Remember how, in lieu of an opening statement, David Addington entered a bunch of "exhibits" into the record yesterday?

Well, it looks like Addington was trying to do a couple of things with his collection of exhibits. First, and least interesting, was to make sure he had three documents in which President Bush directly guided the nation’s torture policy ready at hand:

  • February 7, 2002 Bush memo calling for detainees to be treated humanely–but without Geneva Convention rights
  • September 6, 2006 press conference in which Bush admitted to water-boarding Al Qaeda detainees
  • July 20, 2007 Bush Executive Order establishing guidelines for interrogations

More interesting, Addington was making sure that the correspondence between HJC and OVP regarding his own testimony was readily available. And I think he did that for two reasons. The correspondence includes a fairly narrow description of what the expected testimony would include:

  • No representations about "the nature and scope of Presidential power in time of war" or US "policies regarding interrogation of persons in the custody of the nation’s intelligence services and armed forces"
  • Only "personal knowledge of key historical facts" relating to interrogation and presidential power
  • No details about Vice Presidential communications to the President
  • No details "relating to the Senate functions of the Vice Presidency"
  • The availability of applicable legal privileges (don’t miss the bit of snark where footnote 11 in the April 28 Conyers letter reminds, "I assume that counsel’s citation to the’state secrets’ privilege was an oversight as that is a judge-made litigation privilege that has no application before a Committee of Congress")

In other words, Addington wanted to be ready to show his hall pass and prove that certain questions–about Dick’s role in outing a CIA spy or Dick’s role in killing most of the salmon in the Northwest; or about whether Dick ever told Bush that the warrantless wiretapping program was illegal; or why Dick voted to drown the federal government in a bathtub on December 21, 2005–would be out of bounds.

In addition, Addington seems to have wanted evidence of a little squabble over the Fourth Barnacle Branch, such as this argument:

The Committee request seeks authoritative representation on the three subjects identified in the Committee request. The Chief of Staff to the Vice President is an employee of the Vice President, and not the President. With respect to Presidential power in wartime and related issues under U.S. and international law, the Attorney General or his designee would be the appropriate witness. Read more →

It’s Not Just that Levin Was Ousted–It’s Bradbury’s Trial Run on Torture

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ABC reports something that had been somewhat clear for some time. Daniel Levin was ousted from the Office of Legal Counsel after he wrote a memo that limited the use of torture.

Former Attorney General Alberto Gonzales, now under investigation for allegedly politicizing the Justice Department, ousted a top lawyer for failing to adopt the administration’s position on torture and then promised him a position as a U.S. attorney to placate him, highly placed sources tell ABC News.

Gonzales, who was just taking over as attorney general, asked Justice Department lawyer Daniel Levin to leave in early 2005, shortly after Levin wrote a legal opinion that declared "torture is abhorrent" and limited the administration’s use of harsh interrogation techniques.

At the time, Levin was in the middle of drafting a second, critical memo that analyzed the legality of specific interrogation techniques, like waterboarding.

Gonzales, however, was concerned about how it would be perceived if Levin were ousted immediately after issuing the opinion — and just before he finished another — so he offered Levin a less significant job outside the Department of Justice at the National Security Council, sources tell ABC News.

[snip]

Levin took the NSC job in March 2005. The U.S. attorney position never materialized, and sources close to Levin say he never believed Gonzales was serious.

As ABC points out, Kyle Sampson floated Levin’s name to replace Kevin Ryan in San Francisco.

But what ABC only hints at is what happened next: the trial run of Stephen Bradbury for the position of OLC head. Within months after Levin was ousted, we know, Bradbury wrote three new memos on torture, endorsing the combined use of harsh techniques.

When the Justice Department publicly declared torture “abhorrent” in a legal opinion in December 2004, the Bush administration appeared to have abandoned its assertion of nearly unlimited presidential authority to order brutal interrogations.

But soon after Alberto R. Gonzales’s arrival as attorney general in February 2005, the Justice Department issued another opinion, this one in secret. It was a very different document, according to officials briefed on it, an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.

The new opinion, the officials said, for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures.

Read more →

The Removal of Clothing Does Not Lead to Nudity

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nudity.JPGThat’s a claim that Jim "Chevron" Haynes made yesterday in the Senate Armed Services Committee hearing on torture. In a pathetic attempt to claim that his own 2-page (with zero footnotes) recommendation and Rummy’s subsequent authorization of a number of techniques–including the use of fear and the removal of clothing–did not lead to the horrors of Abu Ghraib, Haynes actually claimed that the removal of clothing was in some way qualitatively different than nudity.

Haynes: Some conflation. Two of items for Qahtani included clothing and use of phobia. What was approved by SecDef. Widely held understanding of what was in those two categories. Use of dogs not intended to be dogs in interrogation room with detainee. Muzzled dogs in perimeter. Removal of clothing not nudity. You then jumped to dogs in room and naked people.

As Claire McCaskill pointed out to Diane Beaver and Jane Dalton, if the written documentation allows the use of phobias and removal of clothing, and that written documentation doesn’t rule out the removal of all clothing, you’re going to have nudity.

McCaskill Reading memo. You understand words matter. Removal of clothing. It says Using detainee phobias such as fear of dogs. I’m trying to figure out as a lawyer, how that does not envision naked people having dogs sicced on them. How does that not occur?

Beaver When you develop a plan, if someone had said, lets sic the dogs on them. That did not happen.

McCaskill Dogs were used with naked people.

Beaver Not at Gitmo

McCaskill Within our military. It happened.

Beaver I can’t comment..

McCaskill Ms Dalton

Dalton: Those approved for Gitmo and did not involve nudity.

McCaskill Removal of clothing. When you were discussing safeguards. Did any one talk putting in the word "all"? If I saw removal of clothing and I was trying to get info, how would anyone know?

Dalton General Miller said it did not involve nudity.

McCaskill there’s nothing here that would say removal of clothing. It’s not in there.

All three of these people are pretending that "everyone" involved knew there were a certain set of conditions that limited the use of phobias and removal of clothing that would somehow prevent piling detainees into heaps of naked human flesh–conditions that, unfortunately, Haynes’ two page memo failed to communicate. Read more →