Why Feingold is uniquely qualified to end the Iraq War.

The Bush administration is continuing their sick and pathetic policy of torturing people in Iraq when they think that all the lights and cameras are off. This is the subject of a new report out of Iraq from Amnesty International. The Bush administration would like you to think that the Abu Girhab photos were just a matter of a few frat boys gotten out of control. But this new report shows that the Bush administration's torture plans are far broader than that. In their twisted logic, they thought that as soon as all the lights and cameras were off, they could go right back to doing whatever they wanted to.

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New "Anti-Embarrassment" Legal Principle

At Balkanization, David Luban discusses the new (and terrible) anti-embarrassment legal principle

So there we have it. Along with the famous "commander in chief override," which supposedly allows the President (in his role as Greatest Field Marshall of All Time) to override any law in the name of national security, we now have the anti-embarrassment principle, which allows courts to dismiss any law suit that might embarrass U.S. officials in the eyes of our allies.

This principle was used when US District Judge David Trager dismissed Maher Arar's lawsuit against U.S. officials who, Arar says, were implicit in his being sent to Syria to be systematically tortured.
The Syrian-born Canadian engineer was detained as a suspected terrorist during a stopover in New York as he returned from a vacation in September 2002.

After being held virtually incommunicado by U.S. officials, he was sent to Syria, where he said he was tortured and held in a tiny cell he likened to a "grave" for nearly a year. He was never charged before Syria returned him to Canada.

Mr. Arar was eventually returned to Canada because he did nothing wrong.  Now a U.S. court is trying to brush it under the rug saying the case is "too embarrassing."

U.S. complicity in extraordinary rendition is more than embarrassing; Judge Trager's attempt to ignore it is beyond shameful.

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Morocco cutting penises of US rendition suspects.

As soon as I think the Bush administration can go no lower, it does it again. The Bush administration is taking so-called terror suspects from Eastern Europe to Morocco where the Moroccans are cutting their penises. This is a new low for an administration which has already been guilty of firing White Phosphorus into Fallujah and melting ths skin off of people.

Temara itself already has a fearsome reputation among former inmates. Binyam Mohammed, an Ethiopian-born Briton later sent to Guantanamo Bay, told Amnesty International that interrogators there cut his chest and penis when he refused to answer questions.

Mohammed said he was held at Temara for 18 months before being flown to another "black prison" in Afghanistan in January 2004, and then on to Guantanamo Bay.

Now, the Bush administration is building a new facility in addition to Temara. Details are below.

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The OPR Report Is Only the Beginning

In reporting on the long-delayed release of the Justice Department's ethics report on the work of Bush administration lawyers who approved the torture of detainees, The New York Timeson Saturday wrote that it "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 represents "the end of a 5-year internal battle" at the Justice Department.

In fact, the Office of Professional Responsibility report is just 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.





How to Overcome the "Legacy of Torture"

The New York Times today highlights a new reportreleased by ProPublica and the National Law Journal concluding that torture and "enhanced interrogation techniques" approved by the Bush Administration and used on suspected terrorists has made it impossible to bring many of those alleged terrorists to justice.

Of the 53 habeas corpus cases brought by Guantanamo detainees and decided by federal court judges, the government has lost 37. Many of those losses were because the only evidence against the detainee was a coerced confession or statements from other prisoners who'd been tortured. Federal court judges have rightly found such statements unreliable and inadmissible. The result is that many of those suspects have won orders of release. (Only three have actually been freed.)

Unfortunately, those orders have led some critics of the administration - including Sen. Lindsey Graham and Brookings Institution commentator Benjamin Wittes - to argue that we need more expansive detention laws so the government doesn't have to let those suspects go. That's precisely the wrong response in a society that claims to presume suspects are innocent until actually proven guilty. (The standard in habeas cases is actually much lower than in a criminal case; the government only has to prove that it's "more likely than not" that the suspect can legally be detained.) Those 37 prisoners won their habeas cases because the government had no reliable evidence that they'd been fighting for al Qaeda or the Taliban. So judges across the political spectrum concluded that the government hadn't demonstrated that these detainees are detainable under the laws of war.

In a report Human Rights First released with The Constitution Project in June, 16 former federal judges explained that the courts deciding these habeas cases are doing the right thing: they're weighing the evidence, deciding the facts and applying the law. No new laws are needed. On the contrary, a new detention law designed to help the government win more cases in the absence of reliable evidence would only tarnish the reputation of the U.S. justice system, which in these cases is doing itself proud.

As the Times points out, these court decisions demonstrate a "respect for due process [that] will help repair this country's battered reputation." The Bush administration's failure to apply basic, longstanding American justice standards is what landed us in this mess in the first place, requiring that some terror suspects go free. Creating a new legal standard to accommodate those past mistakes would only compound the problem and drive the United States' reputation further into the ground.

We're already seeing that happen at the military commissions at Guantanamo Bay. Although, asPeter Finn in the Washington Post today points out, many of the military commission cases have stalled, one that has gone forward recently produced a highly questionable ruling that was immediately broadcast around the world.

In the case of a Canadian citizen and alleged child soldier, Omar Khadr, the judge ruled that a threat of gang-rape and murder in prison from his lead interrogator did not taint any of the 15-year-old's later "confessions" that he threw a grenade that killed a U.S. soldier. Given that there's no physical evidence that Khadr committed the act, his statements to interrogators at the Bagram prison in Afghanistan and later at Guantanamo Bay are critical to the prosecution.

In a similar case, brought against Mohammed Jawad, also accused of throwing a grenade at U.S. soldiers as a child, the military commission judge in 2008 concluded that early threats by Afghan interrogators tainted all of Jawad's later statements made to the Americans. His case was ultimately thrown out and he was returned to Afghanistan.

These sorts of conflicting rulings can happen in the military commissions, an ad hoc justice system created in fits and starts over the last eight years with no binding precedent or road-tested rules. It's one reason why those military commissions lack the legitimacy of civilian federal courts.

Like the court rulings ordering Guantanamo detainees freed, the military commissions, too, are a legacy of torture. They're an attempt to patch together a quasi-justice system to accommodate, without acknowledging or rectifying, the egregious mistakes of the past.

But neither new detention rules nor military commissions can truly overcome torture's legacy. That can only be done by admitting what happened, holding perpetrators accountable, and ultimately, prosecuting terror suspects in our time-tested, world-renowned American justice system. And that is rightly something about which this country can be proud. 




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