Archiving Terrorists in the False-Floored Cells in the Basement

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Goldman and Apuzzo are back on the dark sites beat, this time with a description of the dark site in Bucharest, Romania where the CIA stashed Khalid Sheikh Mohammed and others after shutting down the site in Poland.

This prison was built into the basement of a classified archive now used by NATO and the EU.

Unlike the CIA’s facility in Lithuania’s countryside or the one hidden in a Polish military installation, the CIA’s prison in Romania was not in a remote location. It was hidden in plain sight, a couple blocks off a major boulevard on a street lined with trees and homes, along busy train tracks.

The building is used as the National Registry Office for Classified Information, which is also known as ORNISS. Classified information from NATO and the European Union is stored there. Former intelligence officials both described the location of the prison and identified pictures of the building.

[snip]

The basement consisted of six prefabricated cells, each with a clock and arrow pointing to Mecca, the officials said. The cells were on springs, keeping them slightly off balance and causing disorientation among some detainees.

Of course, the site presumably couldn’t have served as an archive for NATO and the EU at the time it was being used as a prison starting in Fall 2003. Romania entered NATO in 2004 and the EU in 2007.

Now, perhaps this was an old communist era facility, as the Polish prison was.

But it sure seems ill-advised for Romania to turn an old CIA prison–where torture prohibited by the EU charter took place–into an EU bureaucratic archive.

Ayotte’s Pro-Torture Amendment Referred to Conference

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Update: Adam Serwer informs me that I misunderstood what happened in the colloquy where this was discussed. Ayotte’s pro-torture amendment was withdrawn.

I apologize for my error.

As Jeff Kaye laid out here, Kelly Ayotte submitted an amendment to the Defense Authorization that would override Obama’s Executive Order eliminating torture (the language of the amendment is below).

I had thought the amendment would get a vote, be easily defeated, and be history.

But instead, the amendment got referred to the conference that will work out differences between the House and Senate bills.

Now, normally, I’d assume this is a convenient way to get rid of it. But given that the amendment would presumably have been voted down by the Senate, I worry that this effectively keeps it alive to be put in the larger package. Then, members of the House and Senate will vote for the whole package (not wanting to defeat the whole defense authorization). Who knows, maybe they’ll stick it in the classified section of the bill, so none of us will be able to prove that our members of Congress are voting for torture?

Such decisions get made by the sponsor of a bill–in this case, Carl Levin. And they rarely get made without the assent of the Administration.

While it’s not clear what will happen to Ayotte’s amendment–and to our brief efforts to stop torturing–the fact that it won’t be defeated by a upperdown vote bodes ill.

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Bachmann Was Almost Right: The ACLU Is in Cahoots with the CIA

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As I have puzzled over the civil liberties and human rights communities’ stance on the NDAA Detainee Provisions, I’ve come to the unfortunate conclusion that Michelle Bachmann was not far off when she claimed, “Barack Obama … has essentially handed over our interrogation of terrorists to the ACLU. He has outsourced it to them.”

After all, in the guise of “fixing” some of what I agree are problems with the Detainee Provisions–the laws regarding detention and interrogation of detainees–the ACLU is telling its members to lobby for the Udall Amendment to the NDAA.

But there is a way to stop this dangerous legislation. Sen. Mark Udall (D-Colo.) is offering the Udall Amendment that will delete the harmful provisions and replace them with a requirement for an orderly Congressional review of detention power. The Udall Amendment will make sure that the bill matches up with American values.

In support of this harmful bill, Sen. Lindsey Graham (R-S.C.) explained that the bill will “basically say in law for the first time that the homeland is part of the battlefield” and people can be imprisoned without charge or trial “American citizen or not.” Another supporter, Sen. Kelly Ayotte (R-N.H.) also declared that the bill is needed because “America is part of the battlefield.”

The solution is the Udall Amendment; a way for the Senate to say no to indefinite detention without charge or trial anywhere in the world where any president decides to use the military. Instead of simply going along with a bill that was drafted in secret and is being jammed through the Senate, the Udall Amendment deletes the provisions and sets up an orderly review of detention power. It tries to take the politics out and put American values back in.

As a threshold matter, the ACLU’s  support of the Udall Amendment appears to put them on the same side of the debate as–among others–former CIA exec John Brennan and the former Director of the CIA, Leon Panetta. (Current CIA Director and outspoken detention authority while still at DOD, General David Petraeus, has been eerily quiet over the last several weeks.)

And I do agree with the ACLU that the Udall Amendment sets up an orderly review of detention power.

But, as I’ve noted, there’s one aspect of the Detainee Provisions that Udall doesn’t leave for orderly review: the scope of the language describing a “covered person.” Instead, Udall’s Amendment says covered people should be those “whose detention … is consistent with the laws of war and based on authority provided by” the 9/11 and Iraq AUMFs, as well as “any other statutory or constitutional authority.”

(b) Covered Persons.–A covered person under this section is any person, other than a member of the Armed Forces of the United States, whose detention or prosecution by the Armed Forces of the United States is consistent with the laws of war and based on authority provided by any of the following:

(1) The Authorization for Use of Military Force (Public Law 107-40).

(2) The Authorization for Use of Military Force Against Iraq Resolution 2002 (Public Law 107-243).

(3) Any other statutory or constitutional authority for use of military force.

Udall pretty much unilaterally reasserts the application of the AUMFs (plural) and other vaguely defined legal bases to detention (and, because that’s how OLC has built up Executive Power over the last decade, a bunch of other things), in an effort to defeat SASC’s language that limits such detention authority to those tied directly to 9/11 or “who [were] part of or substantially supported al-Qaeda, the Taliban, or associated forces.” Udall’s Amendment may give SSCI and SJC another shot at this law, but it dictates that detention authority apply to a far broader group of people than the SASC language describes.

Hey, Mark. See that calendar? We’re not going to pass and sign this bill before December 1. We’re due to pull our troops out of Iraq by the end of that month. Are you telling me we need to include that language for less than 31 days? Or just to provide a bubble during which the Administration can do whatever it wants with Ali Mussa Daqduq, the alleged Hezbollah agent in US custody presenting so many legal dilemmas for us in Iraq? Or are you instead applying the AUMF for a war that is effectively over to grant the President authority to hold a much broader category of “terrorist” than the 9/11 AUMF authorized? Why, at this late date, are you including the Iraq AUMF?

Given your “based on authority provided” language, I assume it is the latter, meaning this attempt to do an orderly review of detention authority also mandates that that detention authority be applied as if the Iraq war were not ending.

And all that’s before you consider the “any other statutory or constitutional authority for use of military force,” which seems to say that in any circumstance in which Congress has authorized some use of military force, Udall’s Amendment also piggybacks detention authority … and whatever else (like assassination and wiretap authority) gets built off of detention authority in secret by the OLC.

The Udall Amendment, while giving the Senate Intelligence and Senate Judiciary Committees an opportunity to weigh in on what the President must and can do with detainees, goes far beyond the language in the SASC version of 1031, which reaffirmed the war on terrorists, but only on terrorists who have anything directly to do with, or are associated with, 9/11.

I may be badly misreading this. But as I understand it, the ACLU is basically lobbying to codify a vastly-expanded AUMF that will serve to legitimize many of the intelligence community’s most egregious civil liberties abuses, not just on detention, but on a range of other “war powers,” like wiretapping and assassination.

And while that may not be the same as outsourcing interrogation to the ACLU–as Bachmann described it–it does amount to using the ACLU to give sanction to a broad expansion of Executive war and surveillance powers the likes of which the CIA loves to exploit.

It’s the Zenith-Limiting War Declaration, Not the Detainee Restrictions, Obama Wants to Veto

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A bit of a parlor game has broken out over whether Obama really means his veto threat over the detainee provisions of the Defense Authorization. Josh Gerstein weighed in here, including a quote from John McCain accusing the Administration of ratcheting up the stakes.

It’s also clear that, whether for political reasons or due to some complex internal dynamics, the administration seems at this point willing to put up more of a public fight over detainee-related strictures than it has in the past. However, whether that will ultimately translate to a willingness to blow up the defense bill with a veto is unclear. At least some lawmakers seem to view the threats as bluster, in light of the president’s track record.

As McCain said Thursday: “The administration ratcheted up the stakes…with a threat of a veto. I hope they are not serious about it. There is too much in this bill that is important to this Nation’s defense.”

The veto threat is probably tied to the new AUMF language

But I think Gerstein has the dynamic wrong–and his claim that this veto threat represents more public fight than he has shown in the past is flat out wrong. You see, Gerstein’s making the claim based on the assertion that the fight is over the Administration’s authority to move and try detainees as it sees necessary.

In the past three years, President Barack Obama’s administration has been in numerous public skirmishes with Congressional Republicans over legislation intended to limit Obama’s power to release Al Qaeda prisoners, move them to the U.S. and decide where they should face trial.

[snip]

A couple of thoughts on the dust-up: Obama has already signed legislation putting limits on releases of detainees. While officials said at the time that the White House would oppose similar proposals in the future, it is clear that as a practical matter those limits have now become the baseline for those in Congress. [my emphasis]

Gerstein’s right that Obama stopped short of vetoing the Defense Authorization last year, which had those limits, instead issuing a signing statement.

Despite my strong objection to these provisions, which my Administration has consistently opposed, I have signed this Act because of the importance of authorizing appropriations for, among other things, our military activities in 2011.

Nevertheless, my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.

And Obama didn’t issue a veto threat on similar restrictions place on DHS funding.

But Obama has issued a veto threat on “detainee and related issues” before–on Buck McKeon’s version of the Defense Authorization in May. That version added a couple of things to last year’s Defense Authorization: More limits on when the government can use civilian courts to try terrorists, limits on the detainee review system beyond what Obama laid out in an Executive Order last year.

And this language:

Congress affirms that—

(1) the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;

(2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 15 1541 note);

(3) the current armed conflict includes nations, organization, and persons who—

(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or

(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and

(4) the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 3 107–40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.

The current bill is less harsh on several counts than McKeon’s language: it includes a series of waivers to bypass military detention and lets the Administration write procedures for determining who qualifies as a terrorist. While these loopholes require the Administration to do more paperwork, they still allow it to achieve the status quo if it does use those loopholes.

But it still includes very similar to McKeon’s defining this war.

Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

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The Gray Lady Calls the GOP Candidates Gray

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The NYT had a hysterical editorial calling out the GOP candidates for claiming that waterboarding is not torture.

As hard as it is to believe, the Republican candidates for president seem to have learned very little from the moral calamities of the administration of George W. Bush. Three of the contenders for the party’s nomination have now come out in favor of the torture known as waterboarding. Only two have said it is illegal, and the rest don’t seem to have the backbone to even voice an opinion on the subject.

At Saturday night’s debate in South Carolina, Herman Cain and Michele Bachmann said they would approve waterboarding of prisoners to extract information. They denied, of course, that waterboarding is torture, even though it’s been classified as such since the Spanish Inquisition. “Very disappointed by statements at S.C. GOP debate supporting waterboarding,” Senator John McCain, the 2008 Republican presidential nominee, wrote on Twitter. “Waterboarding is torture.”

[snip]

As empty as Mr. Romney’s remarks were about Iran, his refusal to renounce waterboarding is disturbing. There are few issues that more clearly define a candidate’s national security policy in the 21st century than a position on torture. A few candidates will fight terrorism using the rule of law, honoring the nation’s moral standards to encourage other countries to do the same. Others will defend the United States by promising to extract information from captives using pain and simulating death, degrading the nation’s reputation. That group now includes Mr. Cain, Mrs. Bachmann and Mr. Romney.  [my emphasis]

Oh, I agree with the sentiment. On this issue (aside from Jon Huntsman and Ron Paul) the GOPers are a bunch of immoral thugs.

But I’m rather amused that the editorial page of the NYT–the NYT!!!–is attacking others for refusing to call waterboarding torture.

As Glenn Greenwald noted, here’s what two of the then-editors have had to say about whether waterboarding is torture or not.

New York Times Executive Editor Bill Keller explaining why his newspaper won’t describe Bush interrogation techniques as “torture”:

[D]efenders of the practice of water-boarding, including senior officials of the Bush administration, insisted that it did not constitute torture.

New York Times Washington Bureau Editor Douglas Jehl on why his paper refuses to describe Bush’s waterboarding program as “torture”:

I have resisted using torture without qualification or to describe all the techniques. Exactly what constitutes torture continues to be a matter of debate and hasn’t been resolved by a court. This president and this attorney general say waterboarding is torture, but the previous president and attorney general said it is not. On what basis should a newspaper render its own verdict, short of charges being filed or a legal judgment rendered?

And here’s what the NYT’s spokesperson said in response to a study showing that they had changed their language on waterboarding once the US embraced using it.

“As the debate over interrogation of terror suspects grew post-9/11, defenders of the practice (including senior officials of the Bush administration) insisted that it did not constitute torture,” a Times spokesman said in a statement. Read more →

John Rizzo Latest Target for DOJ Probe into Leaking

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It pains me to defend John Rizzo. After all, his willful dumbness–or more likely, outright deceit–played a key role in our country’s approval of torture.

Still, I have mixed feelings about investigating–and probably reprimanding, but not prosecuting–him.

The Justice Department is investigating whether a former top U.S. intelligence official, John Rizzo, improperly disclosed classified information about the CIA’s drone campaign, one of the spy agency’s most secretive and politically sensitive programs.

People familiar with the matter say that the CIA’s general counsel’s office opened the probe in March, shortly after Newsweek published an article in which Rizzo — who had retired in 2009 after serving as the CIA’s acting general counsel — outlined an array of specific details about how CIA officials choose terrorists for drone strikes and which American officials sign off on actually carrying them out.

[snip]

Investigations into current or former senior CIA officials like Rizzo are exceptionally rare, and people familiar with the investigation said they expected this one to end with some sort of formal reprimand, and possibly a financial penalty such as a decrease in his government pension, rather than with his imprisonment. Until the Justice Department decides what it wishes to do, however, the CIA cannot take any action.

Rizzo may have spoken on the record for this article out of pique that his torturers, but not Obama’s drone killers, had come under criticism (plus, I’d dispute that the drone strikes haven’t come under criticism).

But this kind of information is actually crucial for citizens in a democracy to know:

How CIA staffers determine whether to target someone for lethal operations is a relatively straightforward, and yet largely unknown, story. The president does not review the individual names of people; Rizzo explains that he was the one who signed off.

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Eric Holder: Torture Inquiries, Ted Stevens Prosecutorial Misconduct Investigations Almost Finished

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Eric Holder is testifying before the Senate Judiciary Committee right now. [watch here]

In response to two questions from Orrin Hatch, Eric Holder revealed that the John Durham investigation into torture and the Office of Public Responsibility investigation into the prosecutorial misconduct in the Ted Stevens case are both nearing their end.

While none of the Senators asked for Holder to make the results in the torture investigation public, Hatch, Pat Leahy, and DiFi all asked for the Stevens report to be made public.

Let me predict for them what that report will say: While problematic, the behavior of DOJ’s own does not merit punishment. Love, David Margolis.

Columnist Endorses War Crimes Against al Qaeda Because They Murdered a Journalist

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I had never heard of Alex Beam before today, but his column in today’s Boston Globe crossed my email (h/t dakine01) and I am still fuming at his cavalier endorsement of war crimes. Perhaps even more infuriating, though, is that Beam’s endorsement of war crimes is an aside tossed in while Beam is making an argument with which I otherwise agree.

Beam’s central point, as he suggests in his title for the column,”A double standard on war crimes?”, is that while John Yoo has been widely vilified for his role in authoring the OLC memos that authorized torture, David Barron and  Martin Lederman haven’t been attacked nearly as aggressively for authoring the OLC memos under which Anwar al-Awlaki, an American citizen, was killed in Yemen.  My only quibble with that point is that Beam’s roster for the torture memos should be expanded to also include at least Jay Bybee and Steven Bradbury.  His argument:

So, which is the greater crime against the Constitution that all three men swore to uphold? Waterboarding Al Qaeda suspects or killing US citizens? Yoo has been vilified from Marin County to Munich for his legal opinion. If the Obama lawyers are facing job loss or tenure revocation, I haven’t heard about it. This is not a subject they care to discuss.

Beam relies on Mary Ellen O’Connell of Notre Dame to further his argument:

“I do think the two cases call for a different level of criticism,’’ she says. “Isn’t killing worse than torture? Even if the arguments to support torture are weaker arguments, it seems to me that the US should err on the side of the strictest compliance of the law when it comes to taking somebody’s life.’’

Where is the outrage, I asked? It won’t come from the right, she pointed out, “because the policies that Obama is pursuing are basically the same policies that Bush pursued.’’ So where are the principled men and women of the left? “Some of the people who criticized Yoo and his colleagues are in the administration,’’ she answered. “Marty Lederman was a critic of John Yoo, and now he’s writing the memos. So he’s not going to criticize himself.’’

I agree that Lederman and Barron should be subjected to the same level of criticism as Yoo (and Bybee and Bradbury), although I’m less inclined to make a distinction between the crimes of murder and torture.  I find both equally heinous and never justified under any conditions.  As O’Connell points out, the torture arguments likely were much farther outside the law than the extrajudicial execution arguments, but I still can’t join her in making killing artificially a higher crime than torturing.

But here is the jaw-dropping problem with Beam’s column.  Just a bit over halfway through the column, we get this paragraph:

Two points. First, I’m all for waterboarding Al Qaeda bad guys, and the disappearance of al-Awlaki and his ilk by whatever means necessary bothers me not a whit. Read more →

JSOC Denial of Ignoring Torture in Afghan Prisons Not Credible–They Trained Afghan Military Police

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Brig. Gen. Saffiullah, Afghan National Army Military Police Brigade commander, proudly displays his certificate from Robert Harward, left, on April 5, 2010. (Air Force photo)

Yesterday, the Washington Post finally caught up to where Marcy was over two weeks ago and discussed the UN report “Treatment of Conflict-Related Detainees in Afghan Custody” (pdf).  I’d like to move beyond the primary findings of the report, that torture is widespread in Afghan detention facilities and that the US continued bringing prisoners to these facilities long after other nations discontinued the practice due to concerns over reports of torture, and to examine US denials of knowledge regarding the torture.

First, to set the stage from the Post article:

Department 124 was long sealed off from the outside world; the ICRC, the United Nations and other organizations concerned with human rights were barred by Afghan officials from monitoring conditions there.

But American officials frequently went inside, according to Afghan officials and others familiar with the site. U.S. Special Operations troops brought detainees there, and CIA officials met with Department 124’s leadership on a weekly basis, reviewed their interrogation reports and used the intelligence gleaned from interrogations to inform their operations, the officials said.

And now the denial I’m most interested in:

One U.S. official in Kabul said the CIA officers and Special Operations troops would not have ignored torture. “Not in the post-Abu Ghraib era,” the official said. “All American entities out there are hyper-aware of these allegations and would report them up the chain.”

We will dismiss the CIA denial out of hand: documentation of CIA torture practices and the CIA’s attempts to have DOJ provide legal cover for them now fills many books. However, JSOC involvement in torture is less well-documented despite the fact that JSOC torture played a central, but under-reported, role in David Petraeus’ COIN strategy as implemented in both Iraq and Afghanistan.  Petraeus’ primary operative in implementing the torture strategy in both countries was Stanley McChrystal. Read more →

The Scandal Is that Jonathan Alter Doesn’t See the Scandal

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[Sorry for my unannounced absence. I’m on a road trip visiting Mr. EW’s family. Thanks to Jim White and bmaz for guarding the likker cabinet! I know they’ll keep it safe!]

I once got in trouble for mocking people who thought that blowjobs were a scandal worth legal investigation, but torture was not. Given that Jonathan Alter is the so-called liberal who, weeks after 9/11, affirmatively embraced torture, I’m not surprised he still falls in the former group. On Thursday, he wrote a Bloomberg piece sycophantically wondering how Obama managed to have such a scandal-free Administration. This, of the President whose Administration continues to invent all sorts of legal gimmicks to protect his predecessor’s torture. And this, of the guy who is looking high and low for new ways to bail out the banksters from the consequences of their crimes.

This Administration has smothered what was left of rule of law. And yet Alter can’t find a scandal?

Part of the problem stems from Alter’s terms. he equates scandal with some kind of honesty.

President Barack Obama goes into the 2012 with a weak economy that may doom his reelection. But he has one asset that hasn’t received much attention: He’s honest.

Obama certainly lies: about his commitment to the public option, his opposition to telecom immunity, and even his belief that no one is above the law. But what Obama does more is spin–spending months claiming that the deficit is the biggest threat to our country, claiming that a bank settlement is necessary to get the housing market back on track. That kind of spin requires real analysis to catch. Which, I guess, Alter isn’t up to.

And part of Alter’s problem is his adoption of Brendan Nyhan’s definition of scandal: the reference to something as a scandal by a WaPo reporter on that rag’s front page.

Nyhan says that political scientists generally see The Washington Post as a solid indicator of elite opinion — so for his study, a problem officially curdles into a scandal once the S-word is used in a reporter’s own voice in a story that runs on the front page of the Post.

Given that one of the WaPo editorial page’s most striking ideological commitments is to torture, it seems nearly impossible that torture–and the refusal to prosecute it–would ever be a scandal by Nyhan’s (and therefore Alter’s) terms. And Dana Milbank’s bankster epiphany notwithstanding, WaPo reporters are, almost by definition, isolated from the effects of the banksters’ crimes by class and distance.

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