Russia Pressures Us to Investigate Our Torture–Some of It

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On Friday, Russia joined the growing list of country telling us to investigate our torture chambers. It may be more noteworthy coming from Russia given the turnabout: back in the day, of course, dissidents and the US pressured the Soviet Union to abide by the human rights treaties it had signed. Then there’s this:

Russia called on the United States to conducted a thorough and objective investigation of the facts of torture of prisoners in U.S. secret prisons and detention centres at Bagram and Guantanamo, Russia’s Permanent Representative to the United Nations Office and other International Organizations in Geneva, Valery Loshchinin, said while discussing the U.S. Universal Periodic Review at the UN Human Rights Council.

They want us to investigate Bagram. Great: that’s probably where some of our worst abuse currently takes place (when we don’t simply outsource it entirely). And I’m sure Russia enjoys pressuring us to be better overlords in Afghanistan.

And Gitmo: well, sure. While we have investigated some of this torture, there’s the outstanding question what we did at Camp No.

But notice what Loshchinin’s statement doesn’t mention? Our torture chambers in Eastern Europe, particularly Romania and Poland. I guess maybe they thought it’d be unseemly to say, “investigate what you’ve been doing at those prisons we used for so many years.”

And on the subject of investigating torture, as we’ve been noting, the statute of limitations on the torture tape destruction expires today. Have we indicted anyone yet?

Letter to DOJ and John Durham Re: Torture Tape Crimes Expiring

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As you may know, in early November of 2005, agents of the United States government destroyed at least ninety two videotapes containing direct evidence of the interrogation and, upon admission and belief, torture of Abu Zubaydah and Abd al-Rahim al-Nashiri (see: here, here, here, here and here). The statute of limitations, for the criminal destruction of said taped evidence in the cases of Abu Zubaydah and al-Nashiri will expire on Sunday November 7 (since the last day falls on a weekend, the statute should maintain through the next business day, which is Monday November 8). As we have heard absolutely nothing from Eric Holder, John Durham, the DOJ or the Obama Administration in relation to indictments or other results of the investigation Mr. Durham has been conducting since January 8, 2008, nearly three years, I thought a letter was in order asking just exactly what their status was. Said letter was addressed to Dean Boyd and Tracy Schmaler, official representatives and spokesmen for the Department of Justice, and reads as follows:

Dean and Tracy,

As I believe you are already aware, the statute of limitation on criminal charges including, notably, obstruction of justice for the destruction of evidence, are about to expire. The destruction appears to have occurred on or about November 8, 2005 and there is a five year statute on most all of the general crimes that could possibly be under investigation by John Durham. No competent prosecutor would have waited this long to file charges if he intended to do so, but there are still a couple of days left; what is the status?

Secondly, I would like to point out that should you be thinking about relying on some rhetoric that Mr. Durham simply cannot find any crimes to prosecute and/or that there were no proceedings obstructed, it is intellectually and legally impossible to not consider the tapes to be evidence, and as they almost certainly exhibit torture to some degree and to some part they would almost certainly be exculpatory evidence, in the cases of Abu Zubaydah and al-Nashiri themselves. The United States government continues to detain these individuals and they have charges that will putatively be brought against them in some forum (civil or tribunal), Habeas rights and/or indefinite detention review processes that will occur in the future.

In short, there exist not just the potential, but the necessity, of future proceedings, and agents of, or on behalf of, the United States government have destroyed material, and almost certainly exculpatory, evidence. Crimes have been committed. At a bare root minimum, it is crystal clear Jose Rodriquez has clear criminal liability; there are, without question, others culpable too. What is the status?

If the DOJ does not intend to proceed in any fashion on these clear crimes, please provide me with some intellectually consistent explanation for why the US government is covering up, and refusing to prosecute, the criminal acts of its own employees and agents.

Thank you.

bmaz

emptywheel.com

If there is any worthwhile or meaningful response, I will advise.

Bush Admits to Approving Torture–But Which Use of It?

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The WaPo reports that Bush, in his book, admits to approving waterboarding.

In a memoir due out Tuesday, Bush makes clear that he personally approved the use of that coercive technique against alleged Sept. 11 plotter Khalid Sheik Mohammed, an admission the human rights experts say could one day have legal consequences for him.

In his book, titled “Decision Points,” Bush recounts being asked by the CIA whether it could proceed with waterboarding Mohammed, who Bush said was suspected of knowing about still-pending terrorist plots against the United States. Bush writes that his reply was “Damn right” and states that he would make the same decision again to save lives, according to a someone close to Bush who has read the book.

At one level, this is thoroughly unsurprising. We know the Bush Administration very deliberately implemented torture, so it’s unsurprising to hear that it was approved by the President.

But–at least as Jeffrey Smith relays the admission from Bush–it raises as many questions as it does answers.

It appears that Bush admits to approving torture for use with Khalid Sheikh Mohammed. That is, he approved torture sometime around March 1, 2003, when KSM was captured.

That date is itself very significant. After all, on February 5, 2003, the first Democrat (Jane Harman) was briefed that the CIA had used waterboarding. Her response was a letter, objecting not just to the destruction of the torture tapes, but also asking specifically whether Bush had signed off on torture.

I would like to know what kind of policy review took place and what questions were examined. In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States. Have enhanced techniques been authorized and approved by the President?

In response, CIA appears to have met with the White House around February 19, ostensibly to talk about an appropriate response. They also appear to have consulted with the White House on how they should record the results of the Gang of 4 briefings from that month; in the end, they only recorded the outcome of the Senate briefing–which Jay Rockefeller did not attend and at which Pat Roberts is recorded to have signed off not just on torture, but on destroying the torture tapes depicting that torture. In other words, for much of February 2003, CIA was working closely with the White House to create a false appearance of Congressional approval for torture, even while they were specifically refusing to give Congress something akin to a Finding making it clear the President had signed off on that torture.

And now we come to find out that’s precisely the period during which–at least according to Bush–he approved torture.

But note what that leaves out. At least from Smith’s description, it appears that Bush says nothing about approving the waterboarding of Abu Zubaydah (nor the reported waterboarding of Ibn Sheikh al-Libi). Mind you, Ron Suskind has reported that Bush was intimately, almost gleefully, involved in ordering torture for Abu Zubaydah.

But Bush doesn’t cop to that in his book.

Now, there may be good reason for that. After all, John Yoo had not yet written the memo claiming that waterboarding did not amount to torture at the time Abu Zubaydah was first tortured.

Moreover, there’s the whole issue of the approval method for the torture that occurred before August 1, 2002.

The source says nearly every day, Mitchell would sit at his computer and write a top-secret cable to the CIA’s counterterrorism center. Each day, Mitchell would request permission to use enhanced interrogation techniques on Zubaydah. The source says the CIA would then forward the request to the White House, where White House counsel Alberto Gonzales would sign off on the technique. That would provide the administration’s legal blessing for Mitchell to increase the pressure on Zubaydah in the next interrogation.

According to multiple reports, the White House–Alberto Gonzales at least, if not his boss–approved the torture of Abu Zubaydah on a daily basis. And when you read the Bybee Memo and the OPR Report on it, it’s very clear that the memo carved out legal authorization specifically for the torture directly authorized by the President. Indeed, the White House’s prior approval for torture–potentially up to and including waterboarding–may explain the urgency behind the memo in the first place, to provide retroactive legal cover for Bush’s unilateral disregard for US laws prohibiting torture.

In other words, Bush has admitted to approving torture in 2003. But that likely obfuscates his earlier approval for torture at a time when he had no legal cover for doing so.

In other news, the statute of limitations on the torture tape destruction expires in just three or four days. Yet we’ve got silence coming from John Durham.

Feingold

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The Senate just lost its most principled member, Russ Feingold. Consider it a beacon of our money- and fearmonger- drenched politics. Feingold was the perfect politician for America as our founders envisioned it. But a terrible politician when seats go to the highest (foreign) bidder or those screaming the loudest about heebie jeebies.

But as with Alan Grayson, I believe Feingold will continue to lead progressives and–especially for Feingold–civil libertarians going forward. Hell, given how corrupt and dysfunctional the Senate his, he may well find a way to be more effective.

But in the meantime, we have lost our biggest check on the assault on civil liberties in this country.

Polish Prosecutor Looks Backward; US Prosecutor Lets Statute of Limitations Tick Away

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ACLU reports that Rahim al-Nashiri’s lawyer’s request to include their client’s treatment at a black site in Poland in the country’s investigation has been successful.

The Polish prosecutor will investigate the detention and torture of Abd al-Rahim al-Nashiri at a black site in Poland after he was kidnapped and transported there by the CIA.

[snip]

Al-Nashiri, who is accused in the 2000 U.S.S. Cole bombing, was granted the status of “injured party” in Poland’s ongoing investigation into torture in response to a September 21 petition from his lawyers.

Jameel Jaffer uses this event to focus on how little our own country has done to hold its torturers accountable.

Today’s announcement that Poland will investigate the torture of Mr. al-Nashiri serves as a stark reminder of how little has been done in the U.S. to hold top officials accountable for torture. Holding torturers accountable is essential to restoring American credibility at home and abroad – the U.S. can no longer remain silent as, one by one, other nations begin to reckon with their own agents’ complicity in the torture program through prosecutions and judicial inquiries.

Of course, at the rate we’re going, there will be no accountability. The statute of limitations on the destruction of the torture tapes will expire in just 11 days. At that point, the CIA will have officially gotten away with destroying the evidence of their torture, including evidence pertaining to al-Nashiri himself.

Do You Get the Feeling We’re the Adversaries Deputy Defense Secretary Lynn Is Talking About?

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After having managed the Wikileak dump as an opportunity to dial up another NYT A1 fearmongering Michael Gordon article against Iran, DOD has turned to complaining about Wikileaks again. But given the vagueness described in this complaint, I can’t help but wonder whether William Lynn is using the term “adversary” rather loosely.

U.S. Deputy Defense Secretary William J. Lynn called the documents “stolen material” and said they give adversaries key insight on how the U.S. military operates. He did not say which groups, or how the Pentagon knew they were researching the documents.

“There are groups out there that have said they are indeed mining this data to turn around and use against us,” Lynn told a small group of reporters during a brief visit to Baghdad. “We think this is problematic.”

Of course groups are mining documents–and it’s no mystery how DOD has learned of it. The UN has mined the documents and subsequently raised questions about America’s obligations to prevent torture in Iraq. I would imagine that Lynn finds it “problematic” that the UN might challenge its policy of ignoring torture.

I imagine, too, that Lynn believes Deputy Prime Minister Nick Clegg’s demand that the US investigate its support for torture “problematic.”

“Anything that suggests basic rules of war, conflict and engagement have been broken or that torture has been in any way condoned are extremely serious and need to be looked at.

“People will want to hear what the answer is to what are very, very serious allegations of a nature which I think everybody will find shocking.”

It would be “problematic,” too, if the Danes were forced to admit that its own records, neglecting all mention of turning over 62 Iraqis to be tortured, were inaccurate.

I’d be flattered, frankly, if DOD considers us mere American citizens–their paymasters–among that group of “adversaries.” It’d be nice if our military had some fear that citizen disgust with its actions might exercise some kind of check over their power. It’d be nice if the exposure of our government’s complicity with torture proved somehow problematic to the bureaucracy that institutionalized that complicity.

Sadly, I suspect that if Lynn is including us mere citizens in that group of “adversaries,” he’s only doing so because he finds the notion of citizen oversight and accountability so “problematic.”

How Does Frago 242 Relate to Our Collaboration with the Wolf Brigade?

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The biggest headline from Friday’s Wikileaks dump (everywhere but the NYT, anyway) is that the “US ignored torture.” But the way in which an official policy ignoring torture was followed by collaboration with one of Iraq’s torture squads raises the question whether the US involvement in Iraqi torture was more direct.

Did the US “ignore” torture, or “encourage” it?

The basis for the claim that the US ignored torture comes from references to Frago 242, which officially instituted a policy of looking the other way in cases of Iraqi on Iraqi abuse.

This is the impact of Frago 242. A frago is a “fragmentary order” which summarises a complex requirement. This one, issued in June 2004, about a year after the invasion of Iraq, orders coalition troops not to investigate any breach of the laws of armed conflict, such as the abuse of detainees, unless it directly involves members of the coalition. Where the alleged abuse is committed by Iraqi on Iraqi, “only an initial report will be made … No further investigation will be required unless directed by HQ”.

While the Guardian ascribes the timing of this order–which they date to June 2004–to Iraqi sovereignty and the effort to get Iraqis to take over more of their own security, it also coincides with the time when Abu Ghraib made it politically difficult for the US to remain in the torture business.

By the end of 2004, according to the Wikileaks dump, the US was handing over detainees to a US trained group known to torture.

In Samarra, the series of log entries in 2004 and 2005 describe repeated raids by US infantry, who then handed their captives over to the Wolf Brigade for “further questioning”. Typical entries read: “All 5 detainees were turned over to Ministry of Interior for further questioning” (from 29 November 2004) and “The detainee was then turned over to the 2nd Ministry of Interior Commando Battalion for further questioning” (30 November 2004).

The field reports chime with allegations made by New York Times writer Peter Maass, who was in Samarra at the time. He told Guardian Films : “US soldiers, US advisers, were standing aside and doing nothing,” while members of the Wolf Brigade beat and tortured prisoners. The interior ministry commandos took over the public library in Samarra, and turned it into a detention centre, he said.

[snip]

The Wolf Brigade was created and supported by the US in an attempt to re-employ elements of Saddam Hussein’s Republican Guard, this time to terrorise insurgents. Members typically wore red berets, sunglasses and balaclavas, and drove out on raids in convoys of Toyota Landcruisers. They were accused by Iraqis of beating prisoners, torturing them with electric drills and sometimes executing suspects. The then interior minister in charge of them was alleged to have been a former member of the Shia Badr militia.

Now, the timing of the two events–the formal policy of doing nothing about Iraqi on Iraqi torture and the collaboration with the Wolf Brigade–is not exact. Wolf Brigade was founded in October 2004, some time after Frago 242 was issued.

But given how adamant Rummy was in late 2005 that US soldiers were not required to physically stop any abuse they found,

Q    And General Pace, what guidance do you have for your military commanders over there as to what to do if — like when General Horst found this Interior Ministry jail?

GEN. PACE:  It is absolutely the responsibility of every U.S. service member, if they see inhumane treatment being conducted, to intervene to stop it.  As an example of how to do it if you don’t see it happening but you’re told about it is exactly what happened a couple weeks ago.  There’s a report from an Iraqi to a U.S. commander that there was possibility of inhumane treatment in a particular facility.  That U.S. commander got together with his Iraqi counterparts.  They went together to the facility, found what they found, reported it to the Iraqi government, and the Iraqi government has taken ownership of that problem and is investigating it.  So they did exactly what they should have done.

SEC. RUMSFELD:  But I don’t think you mean they have an obligation to physically stop it; it’s to report it.

GEN. PACE:  If they are physically present when inhumane treatment is taking place, sir, they have an obligation to try to stop it.

It sure seems that the relationship between Frago 242 and the torture committed by the Wolf Brigade constitutes even more than just “ignoring” torture.

How Does Frago 242 Relate to Our Collaboration with the Wolf Brigade?

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The biggest headline from Friday’s Wikileaks dump (everywhere but the NYT, anyway) is that the “US ignored torture.” But the way in which an official policy ignoring torture was followed by collaboration with one of Iraq’s torture squads raises the question whether the US involvement in Iraqi torture was more direct.

Did the US “ignore” torture, or “encourage” it?

The basis for the claim that the US ignored torture comes from references to Frago 242, which officially instituted a policy of looking the other way in cases of Iraqi on Iraqi abuse.

This is the impact of Frago 242. A frago is a “fragmentary order” which summarises a complex requirement. This one, issued in June 2004, about a year after the invasion of Iraq, orders coalition troops not to investigate any breach of the laws of armed conflict, such as the abuse of detainees, unless it directly involves members of the coalition. Where the alleged abuse is committed by Iraqi on Iraqi, “only an initial report will be made … No further investigation will be required unless directed by HQ”.

While the Guardian ascribes the timing of this order–which they date to June 2004–to Iraqi sovereignty and the effort to get Iraqis to take over more of their own security, it also coincides with the time when Abu Ghraib made it politically difficult for the US to remain in the torture business.

By the end of 2004, according to the Wikileaks dump, the US was handing over detainees to a US trained group known to torture.

In Samarra, the series of log entries in 2004 and 2005 describe repeated raids by US infantry, who then handed their captives over to the Wolf Brigade for “further questioning”. Typical entries read: “All 5 detainees were turned over to Ministry of Interior for further questioning” (from 29 November 2004) and “The detainee was then turned over to the 2nd Ministry of Interior Commando Battalion for further questioning” (30 November 2004).

The field reports chime with allegations made by New York Times writer Peter Maass, who was in Samarra at the time. He told Guardian Films : “US soldiers, US advisers, were standing aside and doing nothing,” while members of the Wolf Brigade beat and tortured prisoners. The interior ministry commandos took over the public library in Samarra, and turned it into a detention centre, he said.

[snip]

The Wolf Brigade was created and supported by the US in an attempt to re-employ elements of Saddam Hussein’s Republican Guard, this time to terrorise insurgents. Members typically wore red berets, sunglasses and balaclavas, and drove out on raids in convoys of Toyota Landcruisers. They were accused by Iraqis of beating prisoners, torturing them with electric drills and sometimes executing suspects. The then interior minister in charge of them was alleged to have been a former member of the Shia Badr militia.

Now, the timing of the two events–the formal policy of doing nothing about Iraqi on Iraqi torture and the collaboration with the Wolf Brigade–is not exact. Wolf Brigade was founded in October 2004, some time after Frago 242 was issued.

But given how adamant Rummy was in late 2005 that US soldiers were not required to physically stop any abuse they found,

Q    And General Pace, what guidance do you have for your military commanders over there as to what to do if — like when General Horst found this Interior Ministry jail?

GEN. PACE:  It is absolutely the responsibility of every U.S. service member, if they see inhumane treatment being conducted, to intervene to stop it.  As an example of how to do it if you don’t see it happening but you’re told about it is exactly what happened a couple weeks ago.  There’s a report from an Iraqi to a U.S. commander that there was possibility of inhumane treatment in a particular facility.  That U.S. commander got together with his Iraqi counterparts.  They went together to the facility, found what they found, reported it to the Iraqi government, and the Iraqi government has taken ownership of that problem and is investigating it.  So they did exactly what they should have done.

SEC. RUMSFELD:  But I don’t think you mean they have an obligation to physically stop it; it’s to report it.

GEN. PACE:  If they are physically present when inhumane treatment is taking place, sir, they have an obligation to try to stop it.

It sure seems that the relationship between Frago 242 and the torture committed by the Wolf Brigade constitutes even more than just “ignoring” torture.

In June 2004, DOD Issued Instructions to Ignore Iraqi-on-Iraqi Torture

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Al Jazeera has this video and the Guardian a story on Frago 242, which both outlets say is one of the most alarming revelation in Wikileaks’ new document dump. From the Guardian:

This is the impact of Frago 242. A frago is a “fragmentary order” which summarises a complex requirement. This one, issued in June 2004, about a year after the invasion of Iraq, orders coalition troops not to investigate any breach of the laws of armed conflict, such as the abuse of detainees, unless it directly involves members of the coalition. Where the alleged abuse is committed by Iraqi on Iraqi, “only an initial report will be made … No further investigation will be required unless directed by HQ”.

Frago 242 appears to have been issued as part of the wider political effort to pass the management of security from the coalition to Iraqi hands. In effect, it means that the regime has been forced to change its political constitution but allowed to retain its use of torture.

[snip]

Hundreds of the leaked war logs reflect the fertile imagination of the torturer faced with the entirely helpless victim – bound, gagged, blindfolded and isolated – who is whipped by men in uniforms using wire cables, metal rods, rubber hoses, wooden stakes, TV antennae, plastic water pipes, engine fan belts or chains. At the torturer’s whim, the logs reveal, the victim can be hung by his wrists or by his ankles; knotted up in stress positions; sexually molested or raped; tormented with hot peppers, cigarettes, acid, pliers or boiling water – and always with little fear of retribution since, far more often than not, if the Iraqi official is assaulting an Iraqi civilian, no further investigation will be required.

If we had a functioning media, the Sunday shows would be focused on the lie at the heart of the NeoCon project–that they invaded Iraq to bring democracy and rule of law to the country.

Instead, with the NeoCons in charge, they instituted a policy of looking the other way from torture.

Rule of Law Has Broken Down for Secrets, Just Like Everything Else

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Michael Isikoff takes a story Jack Goldsmith already treated and raises the logical conclusions. As I noted, Jack Goldsmith asked John Rizzo why it was that Woodward could publish the proceedings of a briefing from which even top Obama officials–like John Podesta–were excluded. Rizzo responded,

Simple. When a President himself is a key source and directs or at least signals to his Administration to cooperate with the author, that for all intents and purposes means the book becomes one big authorized disclosure. That’s what Obama did for Woodward, and that’s what Bush did for Woodward in his three books during that Administration, which also were packed with hitherto sensitive information. That’s what is remarkable and unique about Woodward’s standing.

Isikoff notes the same passage Goldsmith did and asks,

How can they credibly prosecute mid-level bureaucrats and junior military officers for leaking classified information to the press when so many high-level officials have dished far more sensitive secrets to Woodward?

He focuses closely on the case of Stephen Jin-Wood Kim whom the Obama Administration is prosecuting for leaking info on North Korea to Fox’s James Rosen.

Kim was indicted in August on charges he leaked classified information about North Korea’s nuclear intentions to James Rosen, a correspondent for FOX News.

Abbe Lowell, who got a couple of AIPAC officials cleared after threatening to show how they had only passed on information that people like Condi had already leaked to the press, is the lawyer asking this question.

Aside from the undercurrent, which seems to be asking why John Bolton’s buddies can’t politically leak information like Bolton used to when he was at State (and, implicitly, why AIPAC can’t leak information the President’s aides can), Isikoff is right.

But he misses the even bigger double standard (and of course doesn’t mention Dick Cheney’s orders to Scooter Libby to leak Valerie Plame’s identity to one of the designated reporters for these leaks, Judy Miller, which seems to be a notable example of this intentional leaking).

Less than a month ago, the Obama Administration told a judge they didn’t have to–couldn’t–tell a judge their basis for killing a US citizen. Instead, they invoked state secrets, claiming (among other things) they couldn’t even confirm or deny whether they had targeted Anwar al-Awlaki for assassination.

Yet this came after one after another Obama Administration official leaked the news that al-Awlaki had been targeted, and after they had obliquely confirmed that he was. The Administration can leak news of this targeting all it wants, apparently, but when a US citizen attempts to get protection under the law, then it becomes a state secret.

Now, Isikoff quotes some White House official denying that this kind of double standard exists.

Asked for comment, a White House official told NBC News: “The president is upset about the leak of any sensitive information to any pubic sources, and that includes sensitive information in the Woodward book. In fact, you’ll note that he explicitly refused to address classified matters with Mr. Woodward, even though he was asked about them.”

‘Unclassified gossip’

The official also disputed that the disclosures in the Woodward book might complicate the administration’s anti-leak crackdown. “Leaks are leaks and leaks of classified national security information are crimes. They are not less criminal because there are also leaks to Bob Woodward,” though the official contended that much of the “sensational” disclosures in Woodward’s book were “unclassified gossip about staff differences.”

As for claims of a double standard: the official stated: “There is no double standard. The administration opposes all leaks of classified information.” The official further said President Obama “certainly did not authorize” his aides to share share classified information with Woodward.

But (as Isikoff notes) DOJ is not investigating any of the intentional leaks in Woodward’s books, just as the Obama Administration went to some lengths to protect the Cheney and Bush transcripts that make it clear that they were ordering classified leaks for political gain.

You see, in addition to reserving the decision for itself of who gets prosecuted or not for fraud on courts and torture, the Administration is also arbitrarily choosing who gets prosecuted for leaks.