Liz Cheney's Impeccable Timing

By Daphne Eviatar, Senior Associate, Law and Security

Cross-posted at The Huffington Post

It’s nice to see that even conservatives are disgusted with Liz Cheney’s latest attack on Eric Holder. As you've no doubt heard, Cheney is miffed that there are attorneys in the Department of Justice who, in the past, have defended people accused of nasty crimes. Of course, that’s what defense lawyers are supposed to do, but that doesn’t stop Liz Cheney from creating scary videos insinuating that defending someone swept up by US forces and accused of terrorism is somehow fundamentally worse than defending an ordinary serial murderer, rapist or corporate swindler.

Cheney and her small but highly vocal group Keep America Safe know how to prey on people’s worst fears and prejudices. So I’m not all that surprised by their attack on lawyers like Neal Katyal, a Georgetown law professor and now Principal Deputy Solicitor General, who previously argued that the Bush administration's military commissions were unconstitutional – and convinced a conservative U.S. Supreme Court that he was right.

But there’s another reason Cheney’s latest attack should not have come as a surprise. Consider the timing: late on Friday, February 18, the Department of Justice released a long-delayed report that set out the details of how two Justice Department lawyers, in close contact with the Vice President’s office, wrote a series of legal memos that grossly perverted existing law and longstanding legal precedent to justify some of the most heinous acts of torture and institutionalized abuse of U.S. prisoners in American history. Although a career official at the Justice Department ultimately decided that the department’s internal ethics rules were too unclear to recommend sanctions, the facts of the underlying report remain a damning indictment of attorneys John Yoo and Jay Bybee, among others, who gave the legal green light to criminal and immoral conduct.

What better time for Liz Cheney to change the subject?

Sure enough, a little more than a week later, and just days after the Senate Judiciary Committee held a hearing on the Justice Department’s ethics report, Keep America Safe on March 2 released its video on “The Al Qaeda 7” – seven unnamed lawyers in the Justice Department with some connection at some point in their careers to the defense of a Guantanamo detainee.

Immediately, the media shifted gears: it was no longer John Yoo we cared about, now it was the “Al Qaeda 7” – mysterious Justice Department lawyers who pal around with terrorists. Republican lawmakers such as Sen. Chuck Grassley of Iowa quickly jumped on the bandwagon.

Sure, the argument came to look kind of silly after The Huffington Post unearthed a 2007 article by Bush administration Solicitor General Ted Olson in which he specifically stood up for those detainees’ defense lawyers, saying they represented the best of American values and were the real patriots. And then several prominent conservative lawyers, such as former DOJ officials John Bellinger and Peter Kiesler, publicly criticized the Cheney attack ad as “unfortunate” and “wrong.”

But maybe none of that really matters. After all, it wasn’t like the Al Qaeda 7 had actually done anything wrong or were at risk of any criminal or professional censure. On the contrary, they’d done exactly what the legal profession requires them to do: zealously defend their clients. But Cheney’s attack conveniently shifted the spotlight away from other former Justice Department officials who actually are at risk of professional and criminal sanction.

The Office of Professional Responsibility’s final report provides ample evidence former Justice Department attorneys John Yoo and Jay Bybee intentionally wrote legal memos that were blatantly wrong. It also suggests that White House officials were intimately involved in that process. The fact that John Yoo’s e-mails were “deleted” and unavailable to the ethics investigators is no small matter either, both for what additional evidence those e-mails might have contained and because destroying federal records is a crime -- as is obstruction of justice.

Liz Cheney may have managed to temporarily distract the news media from the subject of her father’s role in developing illegal policies that authorized torture. But let’s hope that the Senate Judiciary Committee continues to press its probe, for there are many observers out there, both at home and abroad, who have not so easily forgotten.

Senate Judiciary Committee Hearing on Ethics Report Disappoints

By Daphne Eviatar, Senior Associate, Law and Security

Cross-posted from Huffington Post.


For anyone hoping the Justice Department would commit to further investigation of the latest evidence that White House officials instructed their lawyers to find legal justifications for torture in the aftermath of Sept. 11, today was a disappointment.

Testifying to the Senate Judiciary Committee, Acting Deputy Attorney General Gary Grindler told Senators that the department's legal ethics report issued last Friday, and its decision not to recommend disciplinary sanctions for Office of Legal Counsel lawyers John Yoo and Jay Bybee, constitute "this department's final action."

Under strong questioning from Senator Patrick Leahy (D-Vt.), Grindler did promise to look into the mysterious disappearance of John Yoo's and Patrick Philbin's e-mails, which Office of Professional Responsibility investigators noted "hampered" their investigation. After all, government officials are legally required by law to maintain their official e-mails, as Leahy reminded Grindler, picking up a copy of the U.S. Code.

But what about all the other evidence that wasn't available to the OPR investigators? There was no discussion of the fact that almost all of the White House witnesses refused to speak to the Justice Department investigators, as did former Attorney General John Ashcroft.

Leahy opened the hearing with a reminder that a year ago he'd recommended creation of a nonpartisan "Commission of Inquiry", along the lines of the 9-11 commission, that would thoroughly investigate how torture became part of official U.S. policy. But that proposal never really won much support, and we heard no indication today that Senators plan to insist it happen.

Senator Richard Durbin (D-Ill.) made an eloquent statement acknowledging that the Yoo and Bybee memos defining torture as so extreme that it must be equivalent to the pain accompanying organ failure or death "provided legal cover for the Bush administration to authorize waterboarding," which he called "a torture technique that our country has historically repudiated as torture and even prosecuted as a war crime."

“We have learned that even when America is fearful and concerned about terrorism we should never forget our basic values," concluded Durbin, who's been pressing for release of the OPR report for over a year. "The time will come when those who do will have to answer for it."

Really, they will? How?

That's the big question left open after this hearing. Will anyone be held accountable for the unlawful torture and abuse of detainees in the never-ending "war on terror"? And if they're not, what's to stop such "enhanced" measures from being taken again?

Indeed, some Senators are already urging just that, and using the decision of career Associate Deputy Attorney General David Margolis not to recommend that the lawyers be disciplined by their state bar associations as evidence that Yoo and Bybee were right all along.

"The Department's decision confirms that John Yoo and Jay Bybee deserve nothing but thanks from a grateful American public" for saving us from the next terrorist attack, declared Sen. John Cornyn (R-Tx), adding that the department's preliminary inquiry into whether any CIA interrogators went beyond the memos' authorizations should be dropped as well.

Sen. Jeff Sessions (R-Ala.) similarly criticized the current administration for repealing "tough and effective interrogation techniques that are lawful," at the same time as he said the investigation was an embarrassment that "has created the impression worldwide that there's been consistent torture, that the president had a policy to violate the law." He then called on the Justice Department to investigate who had embarrassed Yoo and Bybee by leaking earlier versions of the report, before hammering away at the Obama administration for giving Umar Farouk Abdulmutallab, the would-be Christmas Day bomber, the right to a lawyer.

In other words, a hearing on the outcome of a 5-year investigation into how the United States came to authorize torture and cruel, inhuman and degrading treatment of detainees in its custody, in violation of longstanding U.S. laws, values and policies, devolved into partisan politics. Maybe it's what we should have expected. But it was still a disappointment.

The OPR Report Is Only the Beginning

By Daphne Eviatar, Senior Associate, Law and Security

Cross-posted at Huffington Post.

In reporting on the Justice Department's long-delayed ethics investigation of the work of lawyers who approved the Bush administration's torture of detainees, The New York Times wrote on Saturday that the report's release “brings to a close a pivotal chapter in the debate over the legal limits of the Bush administration’s fight against terrorism and whether its treatment of Qaeda prisoners amounted to torture.”

The Washington Post, meanwhile, said the report marked “the end of a 5-year internal battle” at the Justice Department.

In fact, the release of the Office of Professional Responsibility report marks the beginning of a bigger and more important battle. Legal ethics investigators concluded that former Office of Legal Counsel lawyers John Yoo and Jay Bybee committed “professional misconduct” in advising the Bush administration that it was not against the law to torture, humiliate and abuse detainees despite longstanding domestic and international prohibitions against doing so. The battle now will be over whether the U.S. government will meet its obligations to thoroughly investigate what happened and hold the perpetrators accountable.

The final OPR report chastises the two OLC lawyers for reaching bizarre legal conclusions that were wholly unsupported by the law. For example, one of their memos claimed that torture was legal so long as an interrogator’s goal was to obtain information rather than to inflict severe pain or suffering – even if he knew he would inflict severe pain or suffering in the process. As one OLC lawyer commented on the memo at the time: “The way it reads now makes you wonder whether this is just an anti-sadism statute."

Meanwhile, the memo’s now-infamous definition of “severe pain” as necessarily “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death” not only relied on an irrelevant medical benefits statute for its definition, which the OPR report calls “illogical,” but actually misquoted the language of that statute so as “to add further support to their ‘aggressive’ interpretation of the torture statute,” the OPR report concludes. Ultimately, the definition could lead an interrogator to believe, the OPR found, “that pain could be inflicted as long as no injury resulted.” It’s the “leave no marks” theory of torture.

The list of twisted and inexplicable legal conclusions is long and impressive. In another instance, the lawyers relied on extremely narrow interpretations of the international Convention Against Torture proposed by the Reagan administration that the U.S. had never adopted. And they completely ignored far more relevant sources of law on torture, such as federal court cases interpreting the Torture Victims Protection Act, which found torture had occurred in situations far less severe than the brutal interrogation techniques being contemplated in these memos. In one case, for example, a federal court held that imprisonment for five days under bad conditions while being threatened with bodily harm, interrogated and held at gunpoint amounted to torture.

David Margolis, the Deputy Associate Attorney General, ultimately overrode the recommendations of the ethics office to refer the lawyers to state bar associations for disciplinary proceedings, because he decided that the OLC’s standards for referral were unclear. But the report of the investigators who actually read and analyzed the memos that authorized such brutal conduct as “waterboarding” (controlled drowning), slamming prisoners’ heads repeatedly against a wall (“walling”), weeks of sleep deprivation, stress positions, and confinement in a cramped box with insects provides an astonishing look at how the lawyers tasked with providing objective legal advice to the White House on its most sensitive policies completely contorted ordinary logic and legal reasoning to reach the conclusions desired.

Justice Department lawyer Patrick Philbin at one point asked John Yoo why he included a wholly unsubstantiated section in one of the memos that concluded that the president of the United States, as commander in chief, can completely ignore any law he wanted – such as the prohibition against torture. Yoo said it was in the memo because “they want it in there” -- "they" presumably being whoever had requested the opinion. The memo never explained how the prohibition against torture could be construed in any reasonable way so as to conflict with the president’s authority as commander in chief.

Whether John Yoo and Jay Bybee face professional sanctions (that’s now up to their respective state bars) is far less important than whether we get to the bottom of what really happened at the Bush White House: who ordered these lawyers to come up with legal reasoning to justify torture? The OPR report suggests that David Addington, Chief of Staff to Vice President Dick Cheney, played a significant role. Who was he getting his orders from?

The OPR report is just another piece of the slowly-emerging puzzle of how the country plunged into what Dick Cheney has aptly called “the Dark Side,” abandoning its most basic belief in human dignity and the rule of law to zealously combat terrorism in a way that’s ultimately backfired; we’re now less safe, and mired in a vicious and protracted war.

In concluding that Yoo and Bybee exercised “poor judgment” rather than “professional misconduct”, Margolis emphasizes that “his decision should not be viewed as an endorsement of the legal work that underlies these memoranda,” which he notes were “seriously flawed” and represent “an unfortunate chapter in the history of the Office of Legal Counsel.” In Yoo’s case, his conclusions represented a “loyalty to his own ideology and convictions” which “clouded his view of his obligations to his client” and led him to author opinions reflecting “extreme” views of executive power.

Yoo was among the very small group of lawyers entrusted to write these opinions for the White House because he was already known to hold these extreme opinions. That he ignored or contorted opposing views should not have come as a surprise to his employers; that’s what he’d been doing all along as an academic.

It’s clear from the report, too, that that’s what Yoo was expected to do. As John Bellinger, the Bush administration’s legal advisor to the State Department told OPR: “Yoo was ‘under pretty significant pressure to come up with an answer that would justify [the program]’ and that, over time, there was significant pressure on the Department to conclude that the program was legal and could be continued, even after changes in the law in 2005 and 2006.”

Some of those memos were also being demanded under very tight time frames to justify particular interrogations.

So who asked Yoo and Bybee to write these memos, and what exactly were the instructions given? Were they pressured to reach a particular conclusion and provide a “golden shield” for illegal conduct that the White House had already chosen to undertake? The report points out that the OPR investigators were not able to access most of John Yoo's e-mail messages from the time period: "most of Yoo's e-mail records had been deleted and were not recoverable." Why did Yoo delete those messages, and what did they say?

Even Jack Goldsmith, the former head of the Office of Legal Counsel under President Bush, read the memos to ultimately function as a “blank check” for the military to engage in illegal and unauthorized interrogation techniques. If that’s the case, then not only the lawyers but the officials who instructed them could be guilty of a criminal conspiracy.

The OPR report, then, hardly ends this chapter of history; it only begins to open the book. Before we can really reach the end of this sad saga and put it to rest, we need to know much more.

This post has been updated.

Torture Has To Be Investigated No Matter What Dick Cheney Calls It

By Daphne Eviatar, Senior Associate, Law and Security

Cross-posted at Huffington Post.

Buried in a recent Washington Post article is an interesting fact that Harry Shearer points out in a blog on the Huffington Post today: that in at least one recent Guantanamo detainee case, the US Justice Department did not deny that the detainee was tortured. It just argued that the court should accept his statements as reliable anyway. The DOJ lost that argument, and Saeed Mohammed Saleh Hatim won his petition for habeas corpus.

Dick Cheney may like to call those interrogations “enhanced,” but in everyday parlance they’re what the DOJ is implicitly acknowledging: tortured.

There are two important implications of this.

The first is that, not surprisingly, Dick Cheney and the Washington Post’s newest columnist, Marc Thiessen, who’ve been going around claiming both that "torture works" and that "we did not torture" are just flat-out wrong on both counts. Torture doesn’t “work” if you can’t rely on the information you get out of it. And even the Department of Justice – and the U.S. Military Commissions, for that matter – have acknowledged that the U.S. did indeed “torture.”

The second implication follows up on the point I made recently about the still-unreleased report on the ethics investigation of those DOJ attorneys who authorized detainees’ torture. If even the Department of Justice is not denying detainees’ claims that they were tortured, doesn’t that suggest that further investigation on the part of DOJ is required? After all, the U.S. government has committed, in signing onto the U.N. Convention Against Torture, to investigate and prosecute torture committed by its own government.

Of course, Attorney General Eric Holder has agreed to undertake a “preliminary review” of the actions of some CIA operatives who may have participated in abuses. But a recent decision of the U.S. Court of Appeals for the Armed Forces calls the limits of that investigation into question. On Friday, the court agreed to hear an appeal from Charles Graner, Jr., the army private who was sentenced to 10 years in prison for abusing prisoners at Abu Ghraib. Graner, who was accused of stacking naked prisoners in a human pyramid and ordering them to masturbate while other soldiers took photographs, claimed the trial judge was wrong not to let jurors see the legal memos from the Department of Justice that approved the “enhanced interrogation tactics” Dick Cheney is still so proud of. Apparently Graner’s lawyer thinks they would show his client was just following orders – or at least plausibly interpreting them to permit Graner’s bizarre conduct.

Which brings us back to the role of those Justice Department lawyers. If the military’s highest court thinks there’s a plausible argument to be made that those memos justified some of the most degrading and obviously illegal conduct you can think of, then how can the Justice Department continue to refuse to criminally investigate the role of those lawyers?

The issue has been set aside for more than a year now while the government claims its Office of Professional Responsibility is still completing its about-to-be-issued report. But that claim is becoming less and less plausible. If that report isn’t released soon, the Justice Department’s inaction will look more and more like a coverup.

Former Bush speechwriter wants more torture

By Renée Schomp

Apologists for post-9/11 Bush administration policies seem determined to convince us that torture is effective, justified, and necessary. Former Bush administration speechwriter Marc Thiessen’s commentary regarding detainees Abu Zubaydah, Khalid Sheikh Mohammed, and Jose Padilla misconstrues the facts on prolonged detention and the use of “enhanced interrogation techniques.” In so doing, he promotes a counterterrorism agenda that leads to the gathering of inaccurate intelligence, inadmissible evidence, and the destruction of our country’s moral standing in the eyes of the world.

On Monday, Thiessen publishes a book on CIA interrogation techniques entitled Courting Disaster: How the CIA Kept America Safe and How Barack Obama Is Inviting the Next Attack. This book will likely follow the trend of his commentary on the subject to date. In December in USA Today, Thiessen used Umar Farouk Abdullmutallab’s attempt to detonate a bomb on Northwest Airlines flight 253 as a means of promoting Bush administration counterterrorism strategy. “In an earlier time, when we tracked down...big fish, we would take them in alive, hand them over to the CIA and find out their plans to kill Americans,” he states.

Making Abu Zubaydah talk

Citing evidence revealed in newly declassified sections of a Justice Department Inspector General’s report (IG report), Thiessen lambasted former FBI interrogator Ali Soufan in the National Review for speaking out against the use of “enhanced interrogation techniques,” such as simulated drowning. He cited evidence from the IG report to support his argument that such techniques are necessary for national security.

Contrary to Thiessen’s assertions otherwise, a review of the IG report shows that FBI interrogators Soufan and his colleague “Agent Gibson” played vital roles in the interrogation of detainee Abu Zubaydah. And according to the report, their use of “rapport-” and “relationship-building” techniques –not “enhanced interrogation techniques”—is what led Zubaydah to reveal to them the identity of KSM, the self-proclaimed mastermind of the 9/11 attacks.

“Gibson said that he and Thomas [aka Soufan] initially took the lead in interviewing Zubaydah at the CIA facility because the CIA interrogators were not at the scene when Zubaydah arrived…Gibson said he used relationship-building techniques with Zubaydah and succeeded in getting Zubaydah to admit his identity. When Zubaydah’s medical condition became grave, he was taken to a hospital and Gibson assisted in giving him care, even to the point of cleaning him up after bowel movements. Gibson told us he continued interviewing Zubaydah in the hospital, and Zubaydah identified a photograph of Khalid Sheik Muhammad as ‘Muktar,’ the mastermind of the September 11 attacks.” (68).

Based on the IG Report, it appears that authorities first learned of KSM, the alleged ringleader in the attacks of September 11th, because FBI interrogators chose to use time-tested relationship-building techniques to gather intelligence from detainee Abu Zubaydah—rather than spend years experimenting with “enhanced interrogation techniques.”

The interrogation that led to Jose Padilla

Soon after Abu Zubaydah provided information regarding KSM to FBI interrogators Soufan and “Agent Gibson,” he was transferred to the custody of the CIA and subjected to abusive interrogation techniques. In the National Review, Thiessen cited the IG report to demonstrate that Soufan lied about his role in gathering intelligence from Zubaydah regarding Jose Padilla.

The IG report, however, explains that the CIA “asked Gibson and Thomas [aka Soufan] to observe and assist” with Zubaydah’s interrogation after they took over. Shortly thereafter, the report quotes Gibson as stating that Zubaydah “’gave up’ Jose Padilla and identified several targets for future al Qaeda attacks, including the Brooklyn Bridge and the Statue of Liberty” (68).

In an April 2009 New York Times op-ed, FBI interrogator Ali Soufan stated, “There was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics.”

Harsher techniques, such as forced nudity and sleep deprivation imposed by the CIA on Zubaydah, may have contributed to the gathering of information that would lead to identification of Jose Padilla. We can’t prove that he would or would not have provided that information subject to humane interrogation, alone.

But we do know that the picture Thiessen tries to paint as fact is simply wishful thinking built on unknowable assumption and conjecture. The dangerous implications that Thiessen’s assertions have on long-term American counterterrorism strategy are perhaps best described by the FBI itself.

Expert on American counterterrorism strategy?

An important section of the IG report that Thiessen doesn’t address in his writings provides FBI Assistant Director Pasquale D’Amuro’s explanation for why FBI interrogators Soufan and “Agent Gibson” were eventually pulled out of Zubaydah’s interrogation.

“First…he felt that these techniques were not as effective for developing accurate information as the FBI’s rapport-based approach…if ‘aggressive’ techniques are used long enough, detainees will start saying things they think the interrogator wants to hear just to get them to stop…Second…the use of the aggressive techniques failed to take into account an ‘end game.’ D’Amuro stated that even a military tribunal would require some standard for admissibility of evidence…Third, in addition to being ineffective and short-sighted, using these techniques was wrong and helped al-Qaeda in spreading negative views of the United States” (71-72). [Emphasis added].

Thiessen’s spin betrays his pedigree as a professional political speechwriter, rather than a dispassionate reporter of facts and the conclusions they suggest. His upcoming book will likely only prove his dedication to the inhumane practices that prevailed in the Bush administration. In the interests of both security and respect for human rights, we would do well to place far more faith in the wisdom and knowledge of real experts on these issues such as Ali Soufan and FBI Assistant Director D’Amuro, who have actual working knowledge of interrogation techniques.

Looking Forward: Ending Torture Under President Obama

With the celebratory cheers brought on by the decisive election of Barack Obama on Tuesday night fading, we are turning our sights on the transition to his inauguration, and the steps necessary to implement some of the promises made on the campaign trail. Although President-elect Obama faces a variety of challenges starting January 20, overhauling the Bush Administration’s most aggressive detention and interrogation policies, including the secret prison network run by the CIA, is among the most urgent.

HRF has called on the President-elect to address these issues right away:

"The erosion of human rights protections in the United States in the aftermath of September 11th has had a profound impact on human rights standards around the world," said Elisa Massimino, Executive Director and Chief Executive Officer of Human Rights First. "We urge President-elect Obama promptly to turn the page on the policies of torture and other abuse that have deprived the United States of its ability to lead on human rights for the past seven years."

Although some advisers acknowledge that the economic crisis may siphon his attention away from foreign policy efforts, these are issues on which Obama placed heavy emphasis during his campaign, and the President-elect's team told the LA Times that they expect his early moves to be "appreciated overseas, and create a more favorable environment for the new administration right at the start."

Addressing detainee treatment and interrogation policies and closing Guantanamo would provide a needed break from the past. The world has so soured on the Bush Administration that foreign leaders are suspicious of American proposals, "even when they're good ones," an advisor added.

Obama has declared that the Guantanamo Bay prison in Cuba should be closed and that detainees should be handled through the U.S. military justice system, and also supported increased oversight of the secret CIA detention program and efforts to promote a single standard of humane interrogation techniques that would restrict the CIA to interrogation techniques used by the military. But there’s a lot of difficult work ahead – and this is where organizations like HRF come in, to keep the pressure on, and to help sort out the details. In the new environment of an Obama Administration, we expect our views to be taken seriously.

Facing the Music: CIA and British Agents May Face Prosecution for Allegations of Torture

Remember Binyam Mohamed? Senior CIA officers could be put on trial in Britain, after it emerged this week that the British Attorney General is investigating allegations of his torture.

To refresh you, Mohamed’s case was documented in HRF’s report Tortured Justice (pp.23-24). An Ethiopian-born former British resident, he was reportedly arrested in Pakistan in April 2002 and transferred to Guantánamo in September 2004, where he remains.

Mohamed maintains that after his arrest in 2002 he was rendered to Morocco, and then transferred to CIA custody in Afghanistan. His attorneys argue that the government's allegations linking him to a “dirty bomb” plot in the United States are based on confessions their client made after his detention and torture in Morocco, where, they say, he was slashed with a razor and beaten. In response to the torture, Mohamed says he attempted to tell his interrogators what he thought they wanted to hear, falsely confessing to some of their accusations.

But now, U.S. District Judge Emmet G. Sullivan has ordered the Justice Department to turn over documents to Mohamed’s attorneys detailing their client’s treatment while in detention overseas. These documents may help prove or disprove Mohamed’s claims that he falsely confessed only after being tortured at the direction of U.S. officials.

On October 21, 2008, shortly before the Justice Department was required to turn over exculpatory evidence to the defense, the Pentagon withdrew charges linking Mr. Mohamed to the “dirty bomb” plot. "That raises serious questions in this court's mind about whether those allegations were ever true," said Judge Sullivan. The government said it stood by the allegations but chose to withdraw them in order to expedite the proceedings. "That doesn't ring true; it rings hollow," Sullivan responded. "The government has never been concerned with acting expeditiously here." Read the Washington Post article here.

Earlier this week, the United States turned over potentially exculpatory intelligence documents related to Mohamed that have been the subject of judgments by the British High Court. The U.S. government initially resisted handing them over, releasing only seven documents, but on Wednesday it turned over the 35 remaining ones. British officials also told the High Court this week that the "question of possible criminal wrongdoing" in Mohamed's case has been referred to the country's attorney general for investigation into the actions of British agents, and potentially, senior CIA officers.

Last night, Mr. Mohamed’s lawyer, Clive Stafford Smith, said: "This is a welcome recognition that the CIA cannot just go rendering British residents to secret torture chambers without consequences, and British agents cannot take part in U.S. crimes without facing the music. Reprieve will be making submissions to the Attorney General to ensure those involved, from the U.S., Pakistan, Morocco, Britain, are held responsible." Reprieve is an organization, founded by Smith, that represents prisoners facing execution at the hands of the state in the conventional criminal justice system, or those subject to imprisonment outside the reach of the law in the ‘war on terror.’

Not So Basic Training

Last night, Charlie Rose asked CIA Director General Michael Hayden what "enhanced" interrogation techniques were. The transcript is available here -- the whole thing is worth reading if you missed the show. Apparently it's the identity of the person on the receiving end of these "enhanced" techniques that determines whether or not the techniques themselves are objectionable.

Hayden contends that, while the Department of Defense is governed by Army Field Manual, there's a zone of permissible treatment for other detainees beyond the Army Field Manual techniques but within the limits of our treaty obligations and the Constitution. In judging the acceptability of practices in this outer zone, Hayden applies the "shocks the conscience" standard to define torture -- if the treatment doesn't "shock the conscience," then it's not torture or cruel treatment. He then compares the "enhanced" techniques to the training Marines receive on Paris Island, arguing that since this tough training doesn't "shock the conscience" when it's being done to the Marines, the "enhanced" interrogation program similarly isn't "absolutely wrong."

It's unclear to me whether he's arguing that the "enhanced" techniques shouldn't "shock the conscience" because they're being applied to presumed terrorists, or whether the techniques themselves are in fact similar to training exercises that Marines have to perform. Can we hear from the Marines out there about whether techniques like "cold cell" and "long time standing" are now part of basic training?

Gen. Michael Hayden: . . . But the[re] are a whole bunch [of]other activities. I read an interesting piece in today’s Wall Street Journal, and I’m paraphrasing and I probably won’t get it perfectly right. But they were talking about the shock the conscience standard, all right? And they pointed out that if they took you and me, all right, people of our age, and put us, you and me, through what Marine Corps recruits at Paris Island and forced us to do that, that probably would shock the conscious. But it’s not illegal to do it to Marine Corps recruits, all right? That same behavior is not absolutely wrong --

Charlie Rose: Are you talking about things like sleep deprivation, cold and extreme, and --

Gen. Michael Hayden: All the things, all the stresses that we put these recruits through, all right? But we don’t think that’s torture or cruel and degrading --

Charlie Rose: But I don’t think when people think about torture that’s what they’re talking about. You know? This leads to another --

Gen. Michael Hayden:Well, that’s a wonderful point because maybe that is what I’m talking about.

Charlie Rose:So we’re saying we do --

Gen. Michael Hayden:[unintelligible]

Charlie Rose:-- do that it’s torture. If we do that, it’s not torture, that’s what you’re saying?

Gen. Michael Hayden: Again, I’m not going to talk about --

Charlie Rose:I know that, but what you just said to me. But there is -- I mean, if -- I -- you would say to me, clearly the United States does not torture.

Gen. Michael Hayden: Right.

Charlie Rose:T he president said that. The United State’s does not
torture.

Gen. Michael Hayden: That’s right.