Washington Post: Right on Torture

Here's the Washington Post weighing in on this week's Democratic debate. The editors state loudly and clearly that, "What's clear is that torture-when-convenient cannot be U.S. policy." This is a message ALL of the candidates need to hear. One note: the piece doesn't mention that Gov. Mike Huckabee, after the May debate in question, has sided with John McCain on the importance of ending torture.

Right on Torture
Hillary Clinton spells out the only acceptable policy -- and the president's responsibility.

Friday, September 28, 2007; A18

SEN. HILLARY Rodham Clinton (N.Y.) is getting kicked around for her position on torture -- specifically, whether she contradicted both herself and her husband in answering a question on the subject at the Democratic presidential debate in New Hampshire on Wednesday night.

Moderator Tim Russert posed the nightmare scenario for those who, like us, believe that torture is an immoral tactic that yields faulty intelligence and diminishes the United States in the eyes of the world. What would Ms. Clinton do as president, he asked, if the "number three" in al-Qaeda were captured, authorities knew there was a "big bomb going off in America in three days" and the operative knew where it was. "Don't we have the right and responsibility to beat it out of him?" Russert asked, quoting an unnamed guest on "Meet the Press."

"As a matter of policy, it cannot be American policy, period," Ms. Clinton replied. Such "hypotheticals," she added, "are very dangerous because they open a great big hole in what should be an attitude that our country and our president takes toward the appropriate treatment of everyone. And I think it's dangerous to go down this path."

That was the correct answer, and it was also the answer provided by Ms. Clinton's rivals.

"America cannot sanction torture," said Illinois Sen. Barack Obama. "It's a very straightforward principle, and one that we should abide by. Now, I will do whatever it takes to keep America safe. And there are going to be all sorts of hypotheticals and emergency situations, and I will make that judgment at that time." Added Delaware Sen. Joseph R. Biden Jr., "It should be no part of our policy ever -- ever."

That stood in marked contrast to a Republican presidential debate in May, when, alone among the contenders, Arizona Sen. John McCain, the only candidate who has been a victim of torture, stood up against the practice.

Ms. Clinton's remarks were taken as a direct contradiction of not only Mr. Russert's unnamed guest, who turned out to be -- surprise! -- Bill Clinton, but of Ms. Clinton herself. Last October, Ms. Clinton told the New York Daily News, "If we're going to be preparing for the kind of improbable but possible eventuality, then it has to be done within the rule of law. . . . In the event we were ever confronted with having to interrogate a detainee with knowledge of an imminent threat to millions of Americans, then the decision to depart from standard international practices must be made by the president, and the president must be held accountable."

True, Ms. Clinton didn't add that caveat in her remarks last night, which was probably wise. What a president confronted with that extremely unlikely and equally difficult circumstance would do is something that would have to be decided at the time -- by him or her. What's clear is that torture-when-convenient cannot be U.S. policy. It's to the credit of Ms. Clinton and her Democratic colleagues that they seem to understand what the Republicans, save Mr. McCain, do not.

Candidates Reject the "Ticking Time Bomb" Hypothetical

In last night's presidential debate, Tim Russert asked several of the candidates whether they would authorize torture in exceptional circumstances. The so-called "ticking time bomb" scenario used by Russert is a flawed one. Experienced interrogators say that soldiers in the field rarely if ever can know, for certain, that a suspect has accurate information about an imminent threat and that torture or cruel treatment would be the best technique to elicit that information. Furthermore, with a "ticking time bomb" exception, every situation becomes a ticking time bomb scenario.

All of the candidates who were asked rejected Russert's hypothetical. And, two of them referenced a meeting organized by Human Rights First that brought together retried generals and admirals with presidential hopefuls for a discussion about the importance of ending policies authorizing torture and cruelty.

Check out the transcript:

RUSSERT: I want to move to another subject, and this involves a comment that a guest on Meet the Press made, and I want to read it, as follows: Imagine the following scenario. We get lucky. We get the number three guy in Al Qaida. We know there's a big bomb going off in America in three days and we know this guy knows where it is.

RUSSERT: Don't we have the right and responsibility to beat it out of him? You could set up a law where the president could make a finding or could guarantee a pardon. President (sic) Obama -- would you do that as president?

OBAMA: America cannot sanction torture. It's a very straightforward principle, and one that we should abide by. Now, I will do whatever it takes to keep America safe. And there are going to be all sorts of hypotheticals and emergency situations and I will make that judgment at that time. But what we cannot do is have the president of the United States state, as a matter of policy, that there is a loophole or an exception where we would sanction torture. I think that diminishes us and it sends the wrong message to the world.

RUSSERT: Senator Biden, would you allow this presidential exception?

BIDEN: No, I would not. And I met, up here in New Hampshire, with 17 three- and four-star generals who, after my making a speech at Drake Law School, pointing out I would not under any circumstances sanction torture, I thought they were about to read me the riot act.

BIDEN: Seventeen of our four-star, three-star generals said, Biden, will you make a commitment you will never use torture? It does not work. It is part of the reason why we got the faulty information on Iraq in the first place is because it was engaged in by one person who gave whatever answer they thought they were going to give in order to stop being tortured. It doesn't work. It should be no part of our policy ever -- ever.

RUSSERT: Senator Clinton, this is the number three man in Al Qaida. We know there's a bomb about to go off, and we have three days, and we know this guy knows where it is. Should there be a presidential exception to allow torture in that kind of situation?

CLINTON: You know, Tim, I agree with what Joe and Barack have said. As a matter of policy it cannot be American policy period. I met with those same three- and four-star retired generals, and their principal point -- in addition to the values that are so important for our country to exhibit -- is that there is very little evidence that it works.

CLINTON: Now, there are a lot of other things that we need to be doing that I wish we were: better intelligence; making, you know, our country better respected around the world; working to have more allies. But these hypotheticals are very dangerous because they open a great big hole in what should be an attitude that our country and our president takes toward the appropriate treatment of everyone. And I think it's dangerous to go down this path.

RUSSERT: The guest who laid out this scenario for me with that proposed solution was William Jefferson Clinton last year. So he disagrees with you.

CLINTON: Well, he's not standing here right now.

(APPLAUSE)

RUSSERT: So there is a disagreement?

CLINTON: Well, I'll talk to him later.

(LAUGHTER)

Questions for Judge Mukasey

We still don't know when the Senate confirmation hearings for President Bush's nominee for Attorney General will be, but a report in Newsweek reminds us of why it will be important for the Judiciary Committee Senators to ask Judge Mukasey some tough questions. Newsweek reports that:

According to three sources, who asked not to be named discussing the private meetings, Mukasey said that he saw "significant problems" with shutting down Guantánamo Bay and that he understood the need for the CIA to use some "enhanced" interrogation techniques against Qaeda suspects.

Colin Powell, Secretary of State Condoleezza Rice, Secretary of Defense Robert Gates, and the President himself have all expressed a desire to close Guantanamo. The American Bar Association has condemned the executive order allowing for so-called "enhanced" interrogation techniques, prominent Administration supporters have blasted it, and a report published by HRF and Physicians for Human Rights shows that it could lead to the resumption of techniques that constitute torture or other illegal cruel treatment. Finally, top military lawyers have voiced concerns about the damage done to the military by allowing a double standard for CIA interrogations.

During the confirmation hearings, Americans will be listening to hear whether Judge Mukasey would take into account these serious concerns about Guantanamo and torture if he serves as the nation’s top law enforcement official.

Promoting the Myth That Torture Produces Reliable Information

The Economist takes a look at some of the arguments surrounding torture in a piece that generally does a good job of summarizing recent developments while providing some useful polling information from the BBC on public attitudes toward torture in a variety of countries. However, the article ends with the problematic suggestion that torture just might work:

Many critics of torture claim that it is ineffective as well as repugnant. Since people will say anything just to stop the pain, the information gleaned may not be reliable. On the other hand, if people do say anything under torture, you might expect some of what they say to be true and therefore—if those being tortured really are terrorists—useful to the authorities. Torture certainly helped induce Guy Fawkes to betray his co-conspirators after they had tried to blow up King James I and the British Parliament on November 5th 1605.

The article doesn't even try to answer the question of how those gathering information might begin to distinguish between true intelligence and false stories told to stop pain. The Economist article also fails to mention the military's staunch opposition to torture and cruel treatment, opposition based in part on concerns about the reliability of information derived from torture. In fact, the U.S. Army's own field manual on interrogation, published in September 2006, asserts that torture “is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the [human intelligence] collector wants to hear."


And, instead of taking the Guy Fawkes point any further and exploring how the existence of the Tower of London and other historical torture chambers shaped American jurisprudence and constitutionalism -- notably by inspiring early Americans to REJECT torture and despotism -- the piece lets stand unquestioned the assertion of former CIA Director George Tenet that the use of "enhanced" interrogation techniques has produced “invaluable” intelligence. Instead, the authors should have asked veteran FBI interrogator Joe Navarro, someone with first-hand experience in interrogations, who has said, "the only thing torture guarantees you is pain.”

No Laughing Matter

Proving once again that Comedy Central outdoes the "real" news with its coverage of today's issues, last night's line-up featured a Stephen Colbert interview with Naomi Wolf. At 3:14 ,Wolf and Colbert discuss the Bush Administration's use of secret prisons and torture. In her new book, Wolf argues that the establishment of secret prisons where torture occurs is a step toward despotism. And, earlier in the evening, Jon Stewart sat down with Gen. Wesley Clark for an interview where Clark defends America's commitment of the highest standards of conduct and engagement. (This can be found at approx 1:06, after the conversation on the Iraq surge.)

A Majority of the Senate Votes to Restore Habeas

A bipartisan majority of the Senate voted this morning to restore the rights of legal resident and non-citizen detainees to an independent judicial review of their detention, a right that was denied by the passage of last year's Military Commissions Act. Unfortunately, the 56-43 vote was not enough to overcome a filibuster. For more information on the flaws of the Military Commissions Act, go here. Here's the Washington Post's coverage of today's vote:

A Republican filibuster in the Senate today shot down a bipartisan effort to restore the right of terrorism suspects to contest their detentions and treatment in federal courts, underscoring the Democratic-led Congress's difficulty with terrorism issues.

The 56-43 vote fell short of the 60 needed to cut off debate and move to a final vote on the amendment to the Senate's annual defense policy bill. But the measure did garner the support of six Republicans, a small victory for its supporters.

The Next Attorney General Must Uphold the Rule of Law

The confirmation of a new Attorney General provides an opportunity to change course at the Department of Justice. President Bush has nominated Judge Michael B. Mukasey to fill this critically important position as the nation’s top law enforcement officer. In matters of national security, the Attorney General is responsible for prosecuting criminals while guaranteeing the rights of Americans. In his Senate Judiciary Committee hearing, it will be up to Judge Mukasey to reassure Americans that, if confirmed, he will uphold the rule of law and reject the abuses of his predecessor. In advance of the hearings, here’s some background on Judge Mukasey.

Background on Michael B. Mukasey

Trial of Jose Padilla: Judge Mukasey supported granting terror suspects who are U.S. citizens select constitutional protections. While he ruled that the government had the power to detain Jose Padilla as an enemy combatant, he stood up to pressure from the Bush Administration and demanded that Mr. Padilla have access to counsel. He also ruled that Mr. Padilla was entitled to see the government’s evidence against him.

Judge Mukasey ruled that the government has the power to detain enemy combatants, regardless of their citizenship or place of capture. Judge Mukasey decided that the President is authorized by his powers as Commander in Chief[1] and by the Joint Resolution for the Authorization for Use of Military Force.[2] His powers cannot be questioned so long as U.S. troops are in Afghanistan and Pakistan seeking al Qaeda fighters: “At some point in the future, when operations against al Qaeda fighters end, or the operational capacity of al Qaeda is effectively destroyed, there may be occasion to debate the legality of continuing to hold prisoners based on their connection to al Qaeda…”[3]

But, Judge Mukasey also ruled that Padilla must be allowed access to counsel in order for the courts to fairly consider the government’s designation of Padilla as an enemy combatant. “…Padilla’s statutorily granted right to present facts to the court in connection with this petition will be destroyed utterly if he is not allowed to consult with counsel.”[4]

And Judge Mukasey stood up to pressure from the Bush Administration to change his ruling. “When a U.S. District Court ruled several months later that Padilla had a right to counsel, Cheney's office insisted on sending Olson's deputy, Paul Clement, on what Justice Department lawyers called ‘a suicide mission’: to tell Judge Michael B. Mukasey that he had erred so grossly that he should retract his decision. Judge Mukasey derided the government's ‘pinched legalism’ and added acidly that his order was ‘not a suggestion or request.’"[5]

Judge Mukasey also disagreed with the government that “some evidence” was all that was necessary to hold Padilla as an enemy combatant. He stated “…I cannot confirm that Padilla has not been arbitrarily detained without giving him an opportunity to respond to the government’s allegations...Arbitrary deprivation of liberty violates the Due Process Clause, which ‘applies to all “persons” within the United States.’”[6] Judge Mukasey ruled that Mr. Padilla had the right to review the evidence and to contest its validity.

Judge Mukasey has defended the use of the material witness statute to detain terrorist suspects without charges.

In Padilla Judge Mukasey signed the material witness warrant authorizing Padilla’s detention.

In Re Material Witness Warrant Judge Mukasey broke with the precedent established in Awadallah, arguing that the material witness statute may be used to detain terrorist suspects for grand jury proceedings and that it does not violate the Fourth Amendment, stating: “[t]he duty to disclose knowledge of crime rests upon all citizens” and “is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness.”[7] He also based his argument on the fact that it is difficult to determine the need for testimonial evidence prior to trial, calling such suppositions “at best an imponderable undertaking.”[8]

Following the attacks of 9/11, Judge Mukasey closed all material witness court hearings and court documents associated with a grand jury investigation to the press and the public.[9]

In a forum held by the NYC bar association, Judge Mukasey defended charges that judges have failed to resist prosecutors’ broad use of the material witness statute, arguing that witnesses are quickly brought before judges to determine the fairness of their detention[10]

Judge Mukasey has expressed concern over using U.S. federal courts to hear cases involving terror suspects.

Judge Mukasey argued that Padilla’s case should not have been heard in a U.S. federal court because terror trials require too much time and too many resources and risk disclosure of U.S. intelligence methods to our enemies.[11]

Judge Mukasey argued that after the government was required to turn over a list of 200 unindicted co-conspirators in Rahman (1995 trial of Sheik Omar Abdel Rahman and 9 co-defendants, charged with participating in the 1993 World Trade Center bombing, plotting to destroy the UN, FBI offices and other NYC landmarks, and proposing the assassination of the Egyptian president), Osama bin Laden had the list within 10 days, thus notifying bin Laden that the U.S was aware of his involvement.[12]

Judge Mukasey has expressed views favoring administrative detention – the imprisonment of detainees without trial.

In his Wall Street Journal op-ed, Judge Mukasey urges lawmakers to consider the creation of an alternative national security law enforcement system, and laments the lack of a law authorizing pre-trial detention in the United States. In the piece, Judge Mukasey speculates that the government’s designation of Mr. Padilla as an enemy combatant might have been due to his being, “more valuable as a potential intelligence source than as a defendant.”[13]

But there actually is not an “either/or” choice between intelligence gathering and criminal prosecution.

• The law allows the government options: it can charge and not interrogate, or can interrogate and not charge, or can interrogate and then charge.
• Indeed, the experience of prosecutors and law enforcement officials shows the benefits of criminal charges, including: criminal charges provide the government with leverage that otherwise does not exist, to get information from an individual, and lawyers can persuade their clients to cooperate.
• See, for example, this DOJ website, www.lifeandliberty.gov, which extols the virtues of using criminal prosecutions and lengthy prison terms as leverage for gathering intelligence: “We are gathering information by leveraging criminal charges and long prison sentences. When individuals realize that they face a long prison term, they often try to lessen their prison time by pleading guilty and cooperating with the government. These individuals have provided critical intelligence about al-Qaida and other terrorist groups, safehouses, training camps, recruitment, and tactics in the United States, and the operations of those terrorists who mean to do Americans harm.”
• Members of the law enforcement community take exception to an either/or view. Former FBI agent Jack Cloonan says that in the FBI “thousands and thousands of cases were opened up on people with no intention to go into court. Most of FBI’s work in terrorism cases was classified and was intended to prevent – surveillance, finance. So much was devoted to the prevention side. The fact that some cases were prosecuted was only the tip of the iceberg. Most cases were not being prosecuted.”[14] And Mark Fallon, the former CITF deputy commander disputes that dichotomization as well. “’It was our job to prevent the next attack . . . Anyone in the United States government’s job, particularly someone who is a federal agent, law enforcement officer, is to prevent the next attack against the United States.”[15]
• Recent experience shows that a danger of positing a “choice” is based on policies that have allowed “potential intelligence sources” to be subjected to torture or cruelty whereas a “defendant” could not be tortured or otherwise compelled to give evidence. This is wrong in any case.

Biographical Information
Born 1941 in the Bronx, NY[16]
Education[17]
Columbia University, 1963, Bachelor of Arts
Yale Law School, 1967, LL.B., Bachelor of Law
Honors and Awards[18]
Federal Bar Council’s Learned Hand Medal for excellence in federal jurisprudence
Honorary Degree of Doctor of Laws from Brooklyn Law School (2002)[19]
Memberships[20]
Association of the Bar of the City of New York
1979 - 1982, Federal Courts Committee
1983 - 1986, Communications Law Committee
Columbia College Alumni Association, Trustee
Rudy Giuliani’s Justice Advisory Committee
Published Work[21]
In Defense of a Vigorous U.S. Attorney, New York Times, December 2, 1985
Dealing With the Prosecutor, Chapter in Business Crimes: A Guide for Corporate And Defense Counsel, Practising Law Institute, 1986
The Discovery Phase of Libel Litigation, Chapter in Libel Litigation, Practising Law Institute, 1986
Professional History
1967-1972: Associate, Webster Sheffield Fleischmann Hitchcock & Brookfield[22]
1972-1976: Assistant U.S. attorney, Criminal Division, Southern District of New York[23]
1975-1976: Chief, Official Corruption Unit[24]
1976-1987: Associate, Patterson Belknap Webb & Tyler LLP
1987-2006: U.S. District Judge for the Southern District of New York[25]
Chief Judge, 2000-2006
2006-Present: Partner, Patterson Belknap Webb & Tyler LLP
Works primarily on white collar defense and investigations matters.[26]

_____________

[1] Padilla v. Rumsfeld, 233 F. Supp. 2d 564 (S.D.N.Y. 2002) at 590.
[2] Padilla v. Rumsfeld, 233 F. Supp. 2d 564 (S.D.N.Y. 2002) at 69.
[3] Padilla v. Rumsfeld, 233 F. Supp. 2d 564 (S.D.N.Y. 2002) at 70.
[4] Padilla v. Rumsfeld, 233 F. Supp. 2d 564 (S.D.N.Y. 2002) at 115.
[5] Washington Post, 6/25/07; http://blog.washingtonpost.com/cheney/chapters/pushing_the_envelope_on_presi/index.html
[6] Padilla v. Rumsfeld, 243 F. Supp. 2d (S.D.N.Y. 2003) at 35.
[7] In Re The Application of the United States for a Material Witness Warrant, 213 F. Supp. 2d 287 (S.D.N.Y. 2002)
[8] In Re The Application of the United States for a Material Witness Warrant, 213 F. Supp. 2d 287 (S.D.N.Y. 2002) at 27
[9] Josh Gerstein, The Real 9/11 Liberties Problem, New Republic, April 22, 2002, available at http://www.tnr.com/doc.mhtml?i=20020422&s=gerstein042202
[10] Josh Gerstein, The Real 9/11 Liberties Problem, New Republic, April 22, 2002, available at http://www.tnr.com/doc.mhtml?i=20020422&s=gerstein042202
[11] Michael B. Mukasey, Jose Padilla Makes Bad Law, Wall Street Journal, August 22, 2007, at A15; http://www.opinionjournal.com/extra/?id=110010505
[12] Stuart Taylor Jr., The Case for a National Security Court, Atlantic, February 27, 2007, available at http://www.theatlantic.com/doc/200702u/nj_taylor_2007-02-27
[13] Michael B. Mukasey, Jose Padilla Makes Bad Law, Wall Street Journal, August 22, 2007, at A15
[14] Steven Brill, After: How America Confronted the September 12 Era, Simon & Schuster, 2003, at 148.
[15] See 18 U.S.C. § 3144 (2004) (“No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice.”).
[16] Judges of the United States Courts, Federal Judicial Center, available at http://www.fjc.gov/servlet/tGetInfo?jid=1711
[17] Findlaw Lawyer Directory, available at http://pview.findlaw.com/cmd/profileview?wld_id=1795019_1&channel=&print=1#position
[18] Findlaw Lawyer Directory, available at http://pview.findlaw.com/cmd/profileview?wld_id=1795019_1&channel=&print=1#position
[19] http://www.brooklaw.edu/news/newsarchive/2002-05-31graduation.php
[20] Findlaw Lawyer Directory, available at http://pview.findlaw.com/cmd/profileview?wld_id=1795019_1&channel=&print=1#position
[21] Findlaw Lawyer Directory, available at http://pview.findlaw.com/cmd/profileview?wld_id=1795019_1&channel=&print=1#position
[22] Findlaw Lawyer Directory, available at http://pview.findlaw.com/cmd/profileview?wld_id=1795019_1&channel=&print=1#position
[23] Assistant U.S. attorney, Southern District of New York
[24] Judges of the United States Courts, Federal Judicial Center, available at http://www.fjc.gov/servlet/tGetInfo?jid=1711
[25] Judges of the United States Courts, Federal Judicial Center, available at http://www.fjc.gov/servlet/tGetInfo?jid=1711
[26] Findlaw Lawyer Directory, available at http://pview.findlaw.com/cmd/profileview?wld_id=1795019_1&channel=&print=1#position

ABC: CIA Bans Water-Boarding in Terror Interrogations

ABC News gets word that the CIA has banned water-boarding. Note that the CIA source doesn't claim that water-boarding is illegal, just that it isn't being practiced anymore. And why are we hearing about this change of practice now when the decision to ban the procedure reportedly dates from last year? Check out this post from last week where we have the transcript of HRF's Mike Posner asking the CIA director some tough questions about the CIA's "enhanced" interrogation program.

From ABC:

The controversial interrogation technique known as water-boarding, in which a suspect has water poured over his mouth and nose to stimulate a drowning reflex, has been banned by CIA director Gen. Michael Hayden, current and former CIA officials tell ABCNews.com.

The officials say Hayden made the decision at the recommendation of his deputy, Steve Kappes, and received approval from the White House to remove water-boarding from the list of approved interrogation techniques first authorized by a presidential finding in 2002. The officials say the decision was made sometime last year but has never been publicly disclosed.

One U.S. intelligence official said, "It would be wrong to assume that the program of the past moved into the future unchanged."

A CIA spokesman said, as a matter of policy, he would decline to comment on interrogation techniques, "which have been and continue to be lawful," he said.

The practice of water-boarding has been branded as "torture" by human rights groups and a number of leading U.S. officials . . .

. . .

While new legislation reportedly gave the CIA the leeway to use water-boarding, current and former CIA officials said Gen. Hayden decided to take it off the list of about six "enhanced interrogation techniques."

While welcoming the move, some critics say the CIA did not go far enough.

"I can say it's a good thing, but the fact remains that the entire program is illegal," John Sifton of Human Rights Watch told ABCNews.com.

As a result of the decision, officials say, the most extreme techniques left available to CIA interrogators would be what is termed "longtime standing," which includes exhaustion and sleep deprivation with prisoners forced to stand, handcuffed with their feet shackled to the floor." It is a very severe form of torture which causes tremendous psychic toll to people," said Sifton. It is believed that water-boarding was used on fewer than five "high-value" terrorist subjects, and had not been used for three to four years.

Its most effective use, say current and former CIA officials, was in breaking Khalid Sheikh Mohammed, known as KSM, who subsequently confessed to a number of ongoing plots against the United States.

A senior CIA official said KSM later admitted it was only because of the water-boarding thathe talked.

Ultimately, KSM took responsibility for the 9/ll attacks and virtually all other al Qaeda terror strikes, including the beheading of Wall Street Journal reporter Daniel Pearl.

"KSM lasted the longest under water-boarding, about a minute and a half, but once he broke, it never had to be used again," said a former CIA official familiar with KSM's case.

Kappes' role at the CIA puts him in charge of day-to-day CIA operations.

A career intelligence officer, he left the CIA in disagreement with the leadership of Porter Goss, the former Republican congressman, who George Bush chose to replace George Tenet in 2004. When Goss in turn was replaced in May 2006 by Gen. Hayden as director of Central Intelligence, he moved quickly to get Kappes to
return.

A Look at "Enhanced" Interrogation

NBC takes a look inside the CIA's "enhanced" interrogation program in a report that raises as many questions as it answers about what the CIA is doing. One thing the piece makes perfectly clear is the importance of President Bush's July 20th exectutive order in keeping the program operational:

Intelligence officials tell NBC News then CIA Director George J. Tenet ordered a suspension of the enhanced measures in early 2004, as torture allegations mounted. The Abu Ghraib prison revelations, beginning in April 2004, was a major factor in the decision to suspend the measures, said intelligence officials. But the main concerns, they added, were legal: Could CIA officials, including both the interrogators and their superiors, ultimately be prosecuted? President Bush’s order in July removed a lot of those legal concerns, as CIA Director Gen Michael V. Hayden stated in an e-mail to agency employees hours after the order was issued.

Senate Intelligence Committee Opposes CIA Lawyer Who Defended Torture Memo

Members of the Senate intelligence committee have requested that President Bush withdraw the nomination of his choice for CIA general counsel, John Rizzo. Human Rights First and four other human rights groups opposed the Rizzo nomination in a letter to the Chairman and Vice Chairman of the Senate Select Committee on Intelligence. As the Washington Post reports today:

During his confirmation hearing in June, Rizzo testified that he did not object to an administration memo in 2002 that deemed legal some extremely harsh interrogation techniques for CIA detainees. According to the memo, a technique was not considered to be torture unless it inflicted pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of body function, or even death." Rizzo testified that the legal opinion "on the whole was a reasonable one."

Hayden: CIA Needs More "Space" from the Media and NGOs

In a discussion hosted Friday by the Council on Foreign Relations, HRF's Mike Poser asked the CIA Director, General Hayden, to elaborate on his criticism of the press and other external critics who Hayden said are not giving the CIA the "space" it needs to do its job effectively. Posner asked Hayden if the request for "space" in interrogations wasn't really an attempt to change the rules and allow for the use of controversial "enhanced" interrogation techniques that have been banned by the Army Field Manual.

Q I'm Mike Posner from Human Rights First. General Hayden, you spoke at the beginning of your remarks about the distinction between law and rules and then space. And I want to focus on the rules relating to interrogations.

Last year about this time, the president spoke, and he asked Congress for authority for the agency to be involved in what he called enhanced interrogation techniques. This is things like stress positions, use of dogs, hypothermia, mock drowning, waterboarding. The Congress said no to that, led by Senators McCain, Graham and Warner. The military's also said no to that, and all of the senior military lawyers have been very clear that those techniques violate Common Article 3 of the Geneva Conventions, in public testimony before Congress.

And yet a month -- six weeks ago, the administration passed an executive order seemingly allowing again the CIA to engage in these enhanced techniques. From my perspective, it seems to me like this is more than asking for space; what you're really trying to do is change the rules. The question is, why do you need these enhanced techniques? Why shouldn't every U.S. agency operate by a single standard compliant with Common Article 3?

GEN. HAYDEN: First let me make comment on your listing of techniques and just frankly add that it's a pretty good example of taking something to the darkest corner of the room and not reflective of what my agency does.

Now let's talk about the history, last October. With the Hamdan decision, the Supreme Court extended the protection of Common Article 3 to the unlawful combatants of al Qaeda. I'm not a lawyer, but I'm frankly surprised by that aspect of the decision, in that Common Article 3 refers to conflicts not of an international character. And this one does certainly seem to be conflict of an international character.

Our problem was not that we wanted the Congress to approve any techniques. Our problem was, we didn't know what Common Article 3 meant in the context of American law.

When the Senate ratified a variety of other portions of the Geneva Convention, the legislative history or specific statements of the Senate clarified the meaning of the international treaty in terms of American law. For example, the Convention Against Torture is carefully hooked in the legislative history to the prohibition in domestic law against cruel and inhuman punishment articulated by the 5th, 8th and 14th Amendments to the Constitution.

The Congress had made no clarifying language with regard to Common Article 3. And any, I think, fair reading of Common Article 3 would point out that it would be very hard for me to direct an officer of the agency to do things with the vagaries of the language in Common Article 3. So I wasn't looking for a carve out; I was looking for a definition.

One of the outs that was offered to the agency was that we in the -- it turns out to be the Military Commissions Act. We in the Military Commissions Act will criminalize certain kinds of activities. And as long as your officers don't do these activities, they won't be prosecuted. And therefore you'll be safe from -- well, you'll be safe from prosecution.

The agency as a whole and myself in particular rejected that solution. Because what it -- what it would put me in the position of doing would be to turn to an agency officer and say, I would like you to do this with regard to this detainee, okay; I have no idea whether or not it violates the Geneva Convention, because I don't know what it means, but I'm pretty sure you'll never go to court for it, so would you go do that for me? And that's about the worst locker room speech I can imagine giving to an agency employee.

So we insisted on clarity for Common Article 3. The Congress decided that they would not offer that clarity but they then would instead reinforce the already existent presidential right to define the meaning for treaties for the United States. And so there's actual language in the Military Commissions Act that has the president doing that, and it requires him to publish his executive order in the Federal Register, which is what he did.

It's clear that what it is we do as agency is different from what is contained in the Army Field Manual. I don't know of anyone who has looked at the Army Field Manual who could make the claim that what's contained in there exhausts the universe of lawful interrogation techniques consistent with the Geneva Convention.

The Army Field Manual was crafted to allow America's Army to train large numbers of young men and women to debrief and interrogate, for tactical purposes, transient prisoners on a fast-moving battlefield. CIA handles a very small number of senior al Qaeda leaders. The average age of our interrogators is 43. The amount of training for this specific activity is 240 hours. So the reason we're not covered by the Army Field Manual is that we're not in the DOD. We weren't consulted about the Army Field Manual, and no one ever claimed that the Army Field Manual exhausted all the lawful tools that America could have to protect itself.

The next President of the United States must put an end to torture and cruel treatment.

Rear Admiral John D. Hutson (Ret.) responds to the discussion of torture in last night's presidential debate. Hutson served as the Navy’s Judge Advocate General from 1997 to 2000. He is currently the President and Dean of Franklin Pierce Law Center in Concord, New Hampshire.

It is unfortunate that any presidential candidate would promote torture as the solution to the challenge of terrorism. When candidates assert that they would, as commander in chief, authorize the commission of war crimes such as "waterboarding" -- a form of mock execution -- they reveal a surprising lack of understanding of and respect for the laws and values that our men and women
in uniform risk their lives to defend. Some candidates clearly understand and articulate the importance of adhering to our laws and values in the treatment of prisoners but for others, clearly greater education is needed. A number of distinguished retired military leaders have begun meeting with candidates so they become better informed about these issues. We intend to continue this work until every candidate seeking to be Commander in Chief has heard and understands the views of those who have served our nation.

As General David Petraeus said recently in an open letter to the troops, “Some may argue that we would be more effective if we sanctioned torture or other expedient methods to obtain information from the enemy. They would be wrong. Beyond the basic fact that such actions are illegal, history shows that they also are frequently neither useful nor necessary. Certainly, extreme physical action can make someone "talk;" however, what the individual says may be of questionable value. In fact, our experience in applying the interrogation standards laid out in the Army Field Manual (2-22.3) on Human Intelligence Collector Operations that was published last year shows that the techniques in the manual work effectively and humanely in eliciting information from detainees.”

People are understandably fearful about another attack like the one we sustained six years ago on 9/11 and, fed by what they see on television and in the movies, they are naturally drawn to the collective fantasy that torture in a ticking time bomb situation can spare us from suffering such an attack. But the job of the next president, as commander in chief, is to lead the Nation away from the grip of fear, not into its grasp.

The overwhelming consensus among members of America's armed services is that policies authorizing torture and cruel treatment are not only morally wrong, they jeopardize our national security. These policies undermine the moral authority this country needs to confront terrorism effectively and puts American service members deployed abroad at increased risk, now and in future wars. The top lawyers from every branch of our armed forces have testified to Congress that waterboarding and other such abuses constitute inhuman treatment and violate our laws. One year ago, 49 retired military leaders wrote to Congress: "If degradation, humiliation, physical and mental brutalization of prisoners is decriminalized or considered permissible under a restrictive interpretation of Common Article 3, we will forfeit all credible objections should such barbaric practices be inflicted upon American prisoners." Colin Powell said that such policies would "put our own troops at risk." Those who aspire to hold the Nation's highest office should be attentive to these views, which are based on decades of military experience. When we signal that our core values are negotiable, we blur the distinction between us and our enemies and forfeit our greatest asset in the struggle against al Qaeda -- our ideas. The next President of the United States must demonstrate that he or she understands this, and pledge to put an end to torture and cruel treatment.

How Will the Republican Presidential Candidates End Torture?

The Boston Globe lets readers know how to submit a question for tonight's Republican debate in New Hampshire. E-mail the Fox producers your question. Voters need to hear from the candidates about how they plan to put an end to torture and cruel treatment.

Tuesday, September 4, 2007

Republicans ready for debate in New Hampshire

All the major Republican presidential hopefuls -- with the glaring exception of Fred Thompson -- will descend Wednesday night on the University of New Hampshire for the first big debate of the fall campaign.

The 90-minute debate, sponsored by the New Hampshire GOP, starts at 9 p.m. and will be broadcast live on FOX News Channel, on Fox News Radio, and on Foxnews.com.

Fox is going all out, sending its top personalities to moderate, pose questions to the eight candidates, and host programs both before and after the actual showdown. Queries will also come from voters at Young's Diner on Main Street in Durham and from those who send them by email at debate@foxnews.com.

Withdrawing the Torture Memos

In next Sunday's New York Times Magazine, Jeffrey Rosen talks to Jack Goldsmith, former head of the Justice Department's Office of Legal Counsel, about the objections he had to the Bush Administration's policies on torture and detainee treatment and how he ultimately left his job in order to make sure his decision to withdraw one of the torture memos "stuck". An excerpt of the story is below. Despite Goldsmith's efforts to guide administration policy back to the law, did the withdrawal of the torture memos make a difference? Here's the memos' author, John Yoo, later in the piece: "Yoo says it is his understanding that no policies or interrogation techniques changed as a result of the withdrawal of the torture memo, noting that all policies that were legal under the withdrawn opinions are also acknowledged as legal under the opinion that eventually replaced the withdrawn ones."

Several hours after Goldsmith was sworn in, on Oct. 6, 2003, he recalls that he received a phone call from Gonzales: the White House needed to know as soon as possible whether the Fourth Geneva Convention, which describes protections that explicitly cover civilians in war zones like Iraq, also covered insurgents and terrorists. After several days of study, Goldsmith agreed with lawyers in several other federal agencies, who had concluded that the convention applied to all Iraqi civilians, including terrorists and insurgents. In a meeting with Ashcroft, Goldsmith explained his analysis, which Ashcroft accepted. Later, Goldsmith drove from the Justice Department to the White House for a meeting with Gonzales and Addington. Goldsmith remembers his deputy Patrick Philbin turning to him in the car and saying: “They’re going to be really mad. They’re not going to understand our decision. They’ve never been told no.” (Philbin declined to discuss the conversation.)

In his book, Goldsmith describes Addington as the “biggest presence in the room — a large man with large glasses and an imposing salt-and-pepper beard” who was "known throughout the bureaucracy as the best-informed, savviest and most conservative lawyer in the administration, someone who spoke for and acted with the full backing of the powerful vice president, and someone who crushed bureaucratic opponents.” When Goldsmith presented his analysis of the Geneva Conventions at the White House, Addington, according to Goldsmith, became livid. "The president has already decided that terrorists do not receive Geneva Convention protections,” Addington replied angrily, according to Goldsmith. “You cannot question his decision.” (Addington declined to comment on this and other
details concerning him in this article.)

Goldsmith then explained that he agreed with the president’s determination that detainees from Al Qaeda and the Taliban weren’t protected under the Third Geneva Convention, which concerns the treatment of prisoners of war, but that different protections were at issue with the Fourth Geneva Convention, which concerns civilians. Addington, Goldsmith says, was not persuaded. (Goldsmith told me that he has checked his recollections of this and other meetings with at least one other participant or with someone to whom he described the meetings soon after.)

Months later, when Goldsmith tried to question another presidential decision, Addington expressed his views even more pointedly. “If you rule that way,” Addington exclaimed in disgust, Goldsmith recalls, “the blood of the hundred thousand people who die in the next attack will be on your hands.”

The conflict over the Geneva Conventions was just the beginning. About six weeks after he started work, Goldsmith became aware that there might be what he calls “potentially problematic” opinions drafted by the Office of Legal Counsel. These were the “torture memos,” one of which was written in August 2002 and the other in March 2003. The August opinion defined torture as pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death.” Goldsmith concluded that this opinion defined torture far too narrowly. He also had concerns about the March 2003 opinion, the contents of which remain classified but which dealt with the military interrogation of aliens held outside the United States.

Goldsmith told me that he objected to what he calls the “extremely broad and unnecessary analysis of the president’s commander in chief power” in the memos. The August opinion, for example, boldly concluded that “any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander in Chief authority in the President.” Goldsmith says he believed at the time, and still does, that “this extreme conclusion” would call into question the constitutionality of federal laws that limit interrogation, like the War Crimes Act of 1996, which prohibits grave breaches of the Geneva Conventions, and the Uniform Code of Military Justice, which prohibits cruelty and maltreatment. He also found the tone of both opinions “tendentious” rather than cautious and feared that they might be interpreted as an attempt to immunize government officials for genuinely bad acts.

Yoo has acknowledged drafting the August 2002 memo, which he says was the basis for the interrogation of Abu Zubaydah, a top Al Qaeda operative. Yoo also wrote and signed the March 2003 opinion. His friendship with Goldsmith made it especially awkward for Goldsmith to criticize the memos. “I was basically taking steps to fix the mistakes of a close friend, who I knew would be mad about it,” Goldsmith told me. “We don’t talk anymore, and that’s one of the many sad things about my time in government.”

In December 2003, Goldsmith decided that he had to withdraw the March opinion — that is, he had to tell administration officials that they could no longer rely on it. “But figuring out how to withdraw it was very tricky,” he told me, “since withdrawal would frighten everyone who relied on the opinions in a very sensitive area.” In the past, the Office of Legal Counsel had occasionally changed its legal positions between presidential administrations to reflect different legal philosophies, but Goldsmith could find no precedent for the office withdrawing an opinion drafted earlier by the same administration — especially on a matter of such importance.

Goldsmith concluded that he could immediately tell the Defense Department to stop relying on the March opinion, since he was confident that it was not needed to justify the 24 interrogation techniques the department was actually using, including two called “Fear Up Harsh” and “Pride and Ego Down,” which were designed to make subjects nervous without crossing the line into coercion. But the withdrawal of the August opinion was a much harder call. The August opinion provided the legal foundation for the C.I.A.’s interrogation program, Goldsmith says, which he considered much closer to the legal line. (He refused to discuss the details of the program.)

Goldsmith, however, says he didn’t have the time or resources to create a replacement opinion immediately. In his initial months on the job, his attention was focused on the more pressing matter of addressing legal issues surrounding the terrorist-surveillance program. In April 2004, however, Goldsmith’s priorities were reversed when the Abu Ghraib scandal broke. Then, in June of that year, Yoo’s August 2002 opinion was leaked to the media. “After the leak, there was a lot of pressure on me within the administration to stand by the opinion,” Goldsmith told me, “and the problem was that I had decided six months earlier that I couldn’t stand by the opinion.”

A week after the leak of Yoo’s August 2002 memo, Goldsmith withdrew the opinion. Goldsmith made the decision himself, in consultation with Philbin and Deputy Attorney General James B. Comey, both of whom, Goldsmith says, agreed it was the right thing to do. He then told Ashcroft, who was, Goldsmith writes, “unbelievably magnanimous: it had happened on his watch, and he could have overruled me, and he didn’t.” Goldsmith was concerned, however, that the White House might overrule him. So he made a strategic decision: on the same day that he withdrew the opinion, he submitted his resignation, effectively forcing the administration to choose between accepting his decision and letting him leave quietly, or rejecting it and turning his resignation into a big news story. “If the story had come out that the U.S. government decided to stick by the controversial opinions that led the head of the Office of Legal Counsel to resign, that would have looked bad,” Goldsmith told me. “The timing was designed to ensure that the decision stuck.”

More Opposition to the CIA Interrogation Loophole

The editors of the Albany Times Union marked Labor Day by publishing a powerful editorial condemning the CIA loophole that leaves the door open to torture in interrogations. The editors are calling on Senators McCain and Warner to take the lead in passing legislation to close it.