It’s a sign of how much the Bush administration skewed America’s moral compass that we are currently facing the possibility that the only way to bring the torturers to account is through a “Nonpartisan Commission Of Inquiry” — essentially, a toothless truth and reconciliation commission — of the type proposed by Sen. Patrick Leahy, the chairman of the Senate Judiciary Committee.
We know that both President Obama and Attorney General Eric Holder believe that the Bush administration approved the use of torture. In an interview with ABC News on January 11, President-Elect Obama responded to a recent CBS interview with Dick Cheney, in which the then-Vice President had sounded his usual alarms abut the need for “extraordinary” policies to deal with terror suspects, by stating, “Vice President Cheney I think continues to defend what he calls extraordinary measures or procedures and from my view waterboarding is torture. I have said that under my administration we will not torture.”
Two days later, at his confirmation hearing, Eric Holder reinforced Obama’s opinion. Noting, as the New York Times described it, that waterboarding had been used to torment prisoners during the Inquisition, by the Japanese in World War II and in Cambodia under the Khmer Rouge, and adding, “We prosecuted our own soldiers for using it in Vietnam,” he stated unequivocally, “Waterboarding is torture,” and reiterated his opinion just three weeks ago, in a speech to the Jewish Council of Public Affairs in Washington. “Waterboarding is torture,” he said again, adding, “My Justice Department will not justify it, will not rationalize it and will not condone it.”
It took the Bush administration many years to admit that it had authorized the use of waterboarding — a form of controlled drowning with a long and ignoble history — but Gen. Michael Hayden, the director of the CIA, broke the silence last February, admitting, in an open session of Congress, that three “high-value detainees” in the “War on Terror” — Khalid Sheikh Mohammed (KSM), Abu Zubaydah and Abdul Rahim al-Nashiri — had been waterboarded in secret CIA custody.
In December, Vice President Dick Cheney also confessed, telling ABC News that he had been involved in approving the waterboarding of Khalid Sheikh Mohammed. This was the exchange, with ABC’s presenter, Jonathan Karl:
Jonathan Karl: Did you authorize the tactics that were used against Khalid Sheikh Mohammed?
Dick Cheney: I was aware of the program certainly, and involved in helping get the process cleared, as the agency, in effect, came in and wanted to know what they could and couldn’t do. And they talked to me, as well as others, to explain what they wanted to do, and I supported it.
Jonathan Karl: In hindsight, do you think any of those tactics that were used against Khalid Sheikh Mohammed and others went too far?
Dick Cheney: I don’t.
Jonathan Karl: And on KSM, one of those tactics, of course, widely reported was waterboarding, and that seems to be a tactic we no longer use. Even that you think was appropriate?
Dick Cheney: I do.
As I explained in an article at the time, Cheney’s claim that he was merely responding to pressure from the CIA was patently untrue, as it was clear from at least November 2001 that the crucial decisions to hold prisoners without any rights whatsoever — which led inexorably to decisions that they could be interrogated illegally, and then to decisions that they could be tortured with impunity — originated in the Vice President’s Office. However, even without a clear admission by Cheney that he was responsible for establishing the program, his confession that he was intimately involved in approving plans to waterboard a prisoner in US custody establishes, beyond any doubt, that he was involved in approving the use of torture.
Nor are these the only occasions when senior officials have admitted that the Bush administration was involved in torture. In January, just a week before Barack Obama took office, retired judge Susan Crawford, the “Convening Authority” for the Military Commission trial system at Guantánamo (another brain-child of Cheney and his legal counsel, David Addington), admitted, in a Washington Post interview with Bob Woodward, that Mohammed al-Qahtani, a Saudi prisoner in Guantánamo, regarded as the potential 20th hijacker for the 9/11 attacks, had been tortured. “We tortured Qahtani,” Crawford, a protégée of Cheney and a close friend of Addington, admitted. “His treatment met the legal definition of torture.”
What was remarkable about this confession — beyond it being the first instance of a senior Bush administration official admitting that anyone had been tortured — was that al-Qahtani had not been subjected to waterboarding, but had, instead, been subjected, over a two-month period in late 2002 and early 2003, to a combination of other techniques, approved by defense secretary Donald Rumsfeld. For Crawford, however, it was the combined effect of these techniques — which included extreme sleep deprivation and sustained acts of humiliation — that led to her decision not to put al-Qahtani forward for a trial by Military Commission.
“The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent,” she said. “You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge,” and to conclude that it was torture.
Further evidence that senior officials were intimately involved with the use of torture by US forces came last week, in a detailed analysis by Mark Danner, in the New York Review of Books, of a leaked secret report by the International Committee of the Red Cross, based on interviews with the 14 “high-value detainees” — including KSM, Abu Zubaydah and Abdul Rahim al-Nashiri — who were transferred to Guantánamo in September 2006. Danner’s article did not cite confessions by senior officials that they had authorized the use of torture — although it did include the Red Cross’s own unprecedented conclusion that, “in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture” — but what it did establish, with a chilling clarity, is that every slight amendment to the horrors of the torture program had to be approved further up the chain of command
“It wasn’t up to individual interrogators to decide, ‘Well, I’m gonna slap him. Or I’m going to shake him. Or I’m gonna make him stay up for 48 hours,’” CIA interrogator John Kiriakou explained. “Each one of these steps … had to have the approval of the Deputy Director for Operations,” he continued. “So before you laid a hand on him, you had to send in the cable saying, ‘He’s uncooperative. Request permission to do X.’ And that permission would come.” And as Danner noted, soon after the first “high-value detainee,” Abu Zubaydah, was captured in March 2002, CIA officers “briefed high-level officials in the National Security Council’s Principals Committee,” including Vice President Dick Cheney, National Security Adviser Condoleezza Rice, and Attorney General John Ashcroft, who “then signed off on the [interrogation] plan.”
As a result of America’s commitment to the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was presented to the US Senate by Ronald Reagan on May 20, 1988, we should, therefore, be applauding an announcement by the Obama administration that those responsible for authorizing the use of torture will imminently be facing prosecution. As the Convention makes clear, “Each state party shall ensure that all acts of torture are offences under its criminal law,” and shall, when alleged acts of torture are discovered, “submit the case to its competent authorities for the purpose of prosecution.” And under Article VI of the US Constitution, “all treaties made … under the authority of the United States shall be the supreme law of the land.”
Instead of prosecution, however, we have Sen. Leahy’s proposed “Nonpartisan Commission Of Inquiry,” and those calling for President Obama to appoint an Independent Prosecutor kept firmly outside the corridors of power.
So how did this happen, and what does it mean? Well, to be blunt, a “Nonpartisan Commission Of Inquiry” is politically useful because it implicitly acknowledges that, although senior officials in the Bush administration committed war crimes, they only did so because they believed that another major terrorist attack was imminent, and because they thought that only torture would enable them to “break” those who possessed vital knowledge that they would not disclose by any other means.
There are, of course, two major problems with this explanation: firstly, senior officials in the administration — including George W. Bush, Dick Cheney, David Addington (photo, left), Donald Rumsfeld and William J. Haynes II, the Pentagon’s general counsel — behaved with an arrogance that is, to my mind, unprecedented in American history, refusing to listen to the many critics (including, to name just two, the FBI and the Naval Criminal Investigative Service), who warned them that what they were doing — or were planning to do — was counter-productive, morally corrosive and illegal; and secondly, because, as the UN Convention Against Torture makes clear, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.”
As commentators have been pointing out since the confessions of Dick Cheney and Susan Crawford, “International treaties which the US signs and ratifies aren’t cute little left-wing platitudes for tying the hands of America. They’re binding law according to the explicit mandates of Article VI of our Constitution” (Glenn Greenwald in Salon, on January 18). However, while the Obama administration is clearly unwilling to do what it should, the key to breaking this deadlock — beyond the responsibility that rests on every law-abiding American citizen to demand that no one (not even the President or Vice President of the United States) is above the law — can be found by looking at the reason that Dick Cheney felt so empowered to publicly declare his crimes before leaving office, which is also the reason that those who expected last-minute pardons of senior officials by President Bush were disappointed.
This key, as Cheney himself admitted, consists of the legal advice regarding the use of torture — and other crimes — that was given to senior officials by the Justice Department’s Office of Legal Counsel (OLC). These documents — some of which were recently released by the Obama administration’s Justice Department — include the notorious “Torture Memo” of August 2002 (PDF), which purported to redefine torture, described in the UN Convention as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person,” as, instead, an act producing pain of a kind “that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result,” and they were regarded as a “golden shield” by the administration, for good reason.
As Jane Mayer explained in her book The Dark Side, “The OLC plays a unique role in the federal government. Sometimes referred to as the Attorney General’s private law firm, its small but often brilliant staff of lawyers, many of whom are political appointees, issue opinions that are legally binding on the rest of the executive branch. If the OLC interprets the law in a certain way, unless the attorney general overrules it, the government must too. If the OLC says a previously outlawed practice, such as waterboarding, is legal, it is nearly impossible to prosecute US officials who followed that advice on good faith.”
It is for this reason, of course, that Dick Cheney stated, in his December interview with ABC News, “On the question of so-called ‘torture,’ we don’t do torture, we never have. It’s not something that this administration subscribes to. Again, we proceeded very cautiously; we checked, we had the Justice Department issue the requisite opinions in order to know where the bright lines were that you could not cross. The professionals involved in that program were very, very cautious, very careful, wouldn’t do anything without making certain it was authorized and that it was legal. And any suggestion to the contrary is just wrong.” It also explains why George W. Bush felt able to leave office without pardoning anyone responsible for war crimes.
However, the good news, for those who are less than happy living in a country where the highest officials in the land can get away with torture simply by being voted out of office, is that the legal advice prepared by the OLC for use by the Bush administration has been the subject of a four-year investigation, which began in 2003 when law professor Jack Goldsmith took over from Jay S. Bybee (now a judge on the Ninth Circuit Court of Appeals) as the head of the OLC. Goldsmith memorably withdrew many of the OLC’s most controversial memos before leaving the OLC just a year later, complaining, as Newsweek explained last month, that he was “astonished” by the “deeply flawed” and “sloppily reasoned” legal analysis in the memos — including the “Torture Memo” — that were written primarily by Bybee and by John Yoo, a lawyer in the OLC (and now a visiting professor at the Chapman University School of Law), “including their assertion … that the president could unilaterally disregard a law passed by Congress banning torture.”
According to Newsweek’s Michael Isikoff, who broke the story on the Rachel Maddow Show, H. Marshall Jarrett, the head of the Justice Department’s Office of Professional Responsibility (OPR), “confirmed last year he was investigating whether the legal advice in crucial interrogation memos ‘was consistent with the professional standards that apply to Department of Justice attorneys,’” and a draft of the report, submitted in the final weeks of the Bush administration, was apparently “causing anxiety among former Bush administration officials.”
This, it was clear, was because, as Isikoff explained, “OPR investigators focused on whether the memo’s authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted.” A former Bush lawyer, speaking anonymously, added that he “was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted.”
What this means, I believe, is that the investigators discovered not just how Yoo and Bybee — and, later, Stephen Bradbury, the OLC’s acting head from 2005 onwards — produced legal advice that was inconsistent with the OLC’s professional standards, but also how that advice was not produced independently, but in response to demands from Dick Cheney and David Addington, and as a result of close collaboration.
It is, I hope, the smoking gun that leads to the Office of Vice President Dick Cheney — and to David Addington — as it is abundantly clear that, far from maintaining distance between Cheney’s office and the OLC, the “war team” of those who believed in unfettered executive power, including Cheney, Addington, Yoo, Pentagon lawyer Timothy Flanigan, and White House counsel, and later Attorney General Alberto Gonzales, effectively conspired in unison to justify their actions, and I raise it again here, not because there have been any great new developments in the last month — although the Justice Department’s unlikely defense of John Yoo is worth looking at, as is a New York Times article about the “torture lawyers,” and a profile of Bybee in the Las Vegas Sun — but simply because it is far too important to be allowed to drop off the radar.
“No one is above the law,” Attorney General Eric Holder has repeatedly stated. If Holder means what he says, we must demand that the OPR’s report is released.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.
As published exclusively on the website of the Future of Freedom Foundation.
For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison, Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here) (all May 2009), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA), and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009). Also see the extensive archive of articles about the Military Commissions.
For other stories discussing the use of torture in secret prisons, see: An unreported story from Guantánamo: the tale of Sanad al-Kazimi (August 2007), Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), and also see the extensive Binyam Mohamed archive. And for other stories discussing torture at Guantánamo and/or in “conventional” US prisons in Afghanistan, see: The testimony of Guantánamo detainee Omar Deghayes: includes allegations of previously unreported murders in the US prison at Bagram airbase (August 2007), Guantánamo Transcripts: “Ghost” Prisoners Speak After Five And A Half Years, And “9/11 hijacker” Recants His Tortured Confession (September 2007), The Trials of Omar Khadr, Guantánamo’s “child soldier” (November 2007), Former US interrogator Damien Corsetti recalls the torture of prisoners in Bagram and Abu Ghraib (December 2007), Guantánamo’s shambolic trials (February 2008), Torture allegations dog Guantánamo trials (March 2008), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), Former Guantánamo Prosecutor Condemns “Chaotic” Trials in Case of Teenage Torture Victim (Lt. Col. Darrel Vandeveld on Mohamed Jawad, January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (Mohammed El-Gharani, January 2009), Bush Era Ends With Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Forgotten in Guantánamo: British Resident Shaker Aamer (March 2009), and the extensive archive of articles about the Military Commissions.
Pierre, at Another Point Of View, wrote to say:
We all need to remain aware of such affronts to human rights, dignity and decency. Letting this pass, ignoring this like ostriches with our heads blissfully buried, or sweeping this under the rug, is categorically unacceptable — making our societies overall hypocritical at best, willfully complicit at worse.
So keep up the excellent work!
The site is here: http://pov-mentarch1.blogspot.com/
I think your blog and your work in general is absolutely indispensable. The amount of work you put in is amazing.
Robyn’s site is: http://backtooursenses.blogspot.com/
Sometimes it’s really mindblowing all the crap crap crap that comes out of people to justify what happened and to put off investigations. This (investigations/prosecutions) should be really straightforward. (Personally, I suspect that a lot of the mistreatment and general disrespect for giving detainees the justice they deserve, in media and political circles, is a race thing, but that’s just me maybe…I somehow feel these people would’ve been treated much much differently had they been majority white).
Two other things that are a little more on topic – the way Susan Crawford speaks about al-Qahtani’s treatment, it seems to violate even the memos written by Bybee and Yoo. Even those two had to define torture somehow. If it has a long-lasting impact on the detainee’s mental health, that’s torture (according to one of the memos IIRC). I fail to see how you can operate in good faith when the law allows you to do so many things that logically would result in long term terrible effects. I feel as though even if these godawful memos were the standard, prosecutions could still go forward.
Secondly, I need to fill in my interrogation timeline a bit more to be sure. But, as John Kiriakou says, it’s up to the DDO to approve each torture technique. The current no.2 at CIA, beloved by Senator Feinstein, was between August 2004 and November 2004 just that guy. That was a time when the secret prisons were still open and renditions were still occuring. This guy is Steve Kappes.
There should be some sort of ability to deal with these things. Ideally you’d call Kappes to the stand and he would detail the decisions made and who was behind them. After all it would be in his interest to rat out the executive branch. But he’s safely under Obama’s wing now. Hah, and imagine how effective the Senate Intelligence Committee inquiry into the CIA will be, considering Feinstein LOVES him! I am sure we will learn so much.
You know that there are people with that very report locked in their filing cabinets and briefcases right now. At least one of them, maybe more, is debating with him or herself about the morality of taking matters into his or her own hands. To that person or persons I say, Daniel Ellsberg’s name is hallowed in the history of the Vietnam Era. His only regret is that he didn’t act sooner. For heaven’s sake, leak the OPR report, if it won’t be “officially released” any time soon. Please leak it and go down in history as a hero in an era in which they have been few and far between.
[…] Administration’s Torturers by Andy Worthington Posted on March 23, 2009 by dandelionsalad by Andy Worthington Featured Writer Dandelion Salad http://www.andyworthington.co.uk March 23, […]
Is it time to give up yet on the Call for a Special Prosecutor? Be sure to read what Marjorie Cohn has said about this crucial need!
Here are some items related or otherwishe worth checking out, including the URL for the recent OAS hearing with Michael Ratner and others.
Thanks for the comments — especially about Steve Kappes, and the Feinstein connection. Still, perhaps it’s good that Feinstein was thwarted in her desire to appoint him as director of the CIA, but I agree that we’re unlikely to get him to spill the beans …
The disturbing thing about al-Qahtani’s interrogation, of course, is that, although it involved the CIA, it was primarily the work of Rumsfeld’s goons, following the def sec’s approval of “enhanced interrogation techniques,” which, appear, with hindsight, to have been granted in part because Rumsfeld felt sidelined by the CIA’s torture mandate and wanted to demonstrate his own power. Horrible to realize that some aspects of the torture program came about as part of a power game within the administration. What an absolute disgrace!
Yes indeed. Calling all whistleblowers!
Some previous heroes:
This from Valtin at Invictus:
Yes, the OPR report may have the smoking gun, or rather, if you put it together with the Levin Armed Services Committee report (hopefully to arrive in unredacted form very soon), you have an open and shut case. Because the latter shows when and how often DoD’s legal counsel went to JPRA (SERE) asking for them to teach torture. The earliest document is from Dec. 2001 (as I have pointed out before), and we only have the fax cover sheet for it, with some scrawl from Lt. Col. Baumgarten saying he’d be happy to show exploitation techniques, as only JPRA has the expertise, or something like that. I’ve been told we don’t have the actual doc the fax is for because it comes from an agency outside DoD!
Also, of course, you have the documentary evidence (like OPR emails!!!) that show them plotting the torture (docs requesting SERE to teach their torture to interrogators) and the conspiracy to hide it (OPR stuff). Not to prosecute would be a crime in itself, and that’s the next place I’d go, if that’s the decision, i.e., it would make Obama an accessory after the fact war criminal.
I’ve been pushing the latter as a smoking gun for some time now.
See this article from last September:
I assume the interesting link is to a full publishing of that SASC report, which someone put in the comments. It is a goldmine (and a perjury trap for Condi… I hope).
I refuse to give up on prosecutions. They want to tire us out and manufacture a weary consensus that they can’t happen. But history doesn’t work that way. I wouldn’t give up until the last nail is driven into that coffin (though I wouldn’t be my mental health on the thing — this is just a political matter). Recently I read a history of the Nuremberg trials and interrogations (Richard Overy’s Interrogations: The Nazi Elite in Allied Hands, 1945) — a fascinating study that shows that how things come about can be very interesting, and pressure put on people (and the pressure they are under) can have unpredictable results. The main thing I learned is that one should not give up.
And my reply:
I remember reading your post last September, and then it was one of many things that I didn’t have time to follow up on — but you’re definitely onto something.
And the thing for me about giving up is that it’s just not feasible. You simply can’t have a White House-sized loophole in the laws of the land — and the Constitution — or, as I keep saying, in various permutations, you can’t get away with torture simply by being voted out of office at the end.
And I like pressuring Obama as an accessory!
Actually what really gets me is that we haven’t had a single leaked photo out of Bagram. As Abu Ghraib confirmed, photos have a visceral power with which we humble wordsmiths cannot compete.
Someone out there …?
The following message is from Pete Mueller, who, with a colleague, has established an acerbic site called Gitmo Jesus, dedicated to the closure of Guantánamo:
First, let me thank you for the great work you are doing. It was my partner Mike Duffy who posted your link, a fine idea, which I hope will make its way to others here and abroad.
The press here in the states is broken, which means that those of us who care about human rights issues rely on folks like you to distribute the truth. Please continue.
If president Obama really means to block the enforcement of our treaty obligations barring cruel and inhuman treatment and torture, we have retreated from our founding vision of “a government of law, and not of men”. That would be a mournful legacy for a president whom we elected with such hope.
If our laws will be enforced only when they are politically convenient, they are not so much laws as Executive whims.
Bush’s ‘Lawyer-Shopping’ for Torture out March 24th at consortiumnews dot org
I just met & sat in on a Radio Show taping, Veterans’ Voices with
a lawyer who helps represent detainees. If you want to hear this radio show on the web, go here and look for Veterans’ Voices 5:30 ET. Wednesday. This should be archived for about a week but catch it as soon as possible.
Gitmo Jesus thanks you for your work on behalf of those held at Guantánamo Bay.
It is remarkable the level of cruelty that has become common place here in the US. And the subjects of our hatred are beneath our interest, really. Your work puts a name to our victims and makes it impossible for us to say we didn’t know.
Absolutely crucial what you do.
Thank you again.
My reply to Michael:
After your generous sincerity, I feel rather flippant pointing out that your wife-beating analogy is spot-on, and I love the description of Rush Limbaugh: “Fat and pasty as he is, he loves torture.” T-shirt material, really.
Clearly, there are many ways to fight back!
[…] by Andy Worthington http://www.andyworthington.co.uk Originally posted at the Future of Freedom Foundation March 23, 2009 […]
Excellent piece, Andy. One comment: It’s time to stop saying that OLC advice is “binding on the executive”, as if there were no exceptions to this rule. But it cannot be binding if it violates the constitution, or a jus cogens prohibition of international law, e.g. torture, or, perhaps, if it was made to order for the executive, as you demonstrate it was.
Thanks for the comments. You’re right, of course, and next time I’ll make sure to destroy the “golden shield” myth at the very beginning.
This just in:
I read your article at Antiwar.com. Good work.
The proposed commission you wrote about would be reminiscent of the commission that investigated 9-11 and the commission that investigated the bogus intelligence, by which we invaded Iraq. Both were bullshit. When the 9-11 commission reported that one of the reasons for the 9-11 attack was because of our biased policy toward Israel, this statement was scrubbed from the report. That’s when they started touting, “They attacked us because they hate our freedom!”
Let’s hope for the best, but with Rahm Emmanuel as Obama’s gatekeeper and dual citizen of Israel (who supports torture)…I wouldn’t expect anything significant.
I believe you’re right, which is why I shall continue to play my part in exposing the “golden shield” as an unjust barrier to prosecutions. Nothing less can restore America’s reputation as a country founded on the rule of law — not a nation based on pleasing an arrogant proxy President and his legal counsel by cutting and pasting inappropriate passages about pain from medical litigation and passing it off as unchallengeable legal advice.
I was disappointed when Rahm Emmanuel was appointed — presumably he has the necessary talents as Obama’s attack dog, which is an important role — but even more disappointed when Charles Freeman was bullied out of taking the job Obama wanted him to do. Now that might have made a difference — which is why, of course, he had to go before he even arrived.
Note: Charles Freeman, former US ambassador, was chosen by Barack Obama as chairman of the National Intelligence Council, but resigned before taking up his post, and issued the following message, denouncing the “Israel Lobby” for “character assassination,” as the Wall Street Journal explained in an article reproducing his statement:
To all who supported me or gave me words of encouragement during the controversy of the past two weeks, you have my gratitude and respect.
You will by now have seen the statement by Director of National Intelligence Dennis Blair reporting that I have withdrawn my previous acceptance of his invitation to chair the National Intelligence Council.
I have concluded that the barrage of libelous distortions of my record would not cease upon my entry into office. The effort to smear me and to destroy my credibility would instead continue. I do not believe the National Intelligence Council could function effectively while its chair was under constant attack by unscrupulous people with a passionate attachment to the views of a political faction in a foreign country. I agreed to chair the NIC to strengthen it and protect it against politicization, not to introduce it to efforts by a special interest group to assert control over it through a protracted political campaign.
As those who know me are well aware, I have greatly enjoyed life since retiring from government. Nothing was further from my mind than a return to public service. When Admiral Blair asked me to chair the NIC I responded that I understood he was “asking me to give my freedom of speech, my leisure, the greater part of my income, subject myself to the mental colonoscopy of a polygraph, and resume a daily commute to a job with long working hours and a daily ration of political abuse.” I added that I wondered “whether there wasn’t some sort of downside to this offer.” I was mindful that no one is indispensable; I am not an exception. It took weeks of reflection for me to conclude that, given the unprecedentedly challenging circumstances in which our country now finds itself abroad and at home, I had no choice but accept the call to return to public service. I thereupon resigned from all positions that I had held and all activities in which I was engaged. I now look forward to returning to private life, freed of all previous obligations.
I am not so immodest as to believe that this controversy was about me rather than issues of public policy. These issues had little to do with the NIC and were not at the heart of what I hoped to contribute to the quality of analysis available to President Obama and his administration. Still, I am saddened by what the controversy and the manner in which the public vitriol of those who devoted themselves to sustaining it have revealed about the state of our civil society. It is apparent that we Americans cannot any longer conduct a serious public discussion or exercise independent judgment about matters of great importance to our country as well as to our allies and friends.
The libels on me and their easily traceable email trails show conclusively that there is a powerful lobby determined to prevent any view other than its own from being aired, still less to factor in American understanding of trends and events in the Middle East. The tactics of the Israel Lobby plumb the depths of dishonor and indecency and include character assassination, selective misquotation, the willful distortion of the record, the fabrication of falsehoods, and an utter disregard for the truth. The aim of this Lobby is control of the policy process through the exercise of a veto over the appointment of people who dispute the wisdom of its views, the substitution of political correctness for analysis, and the exclusion of any and all options for decision by Americans and our government other than those that it favors.
There is a special irony in having been accused of improper regard for the opinions of foreign governments and societies by a group so clearly intent on enforcing adherence to the policies of a foreign government – in this case, the government of Israel. I believe that the inability of the American public to discuss, or the government to consider, any option for US policies in the Middle East opposed by the ruling faction in Israeli politics has allowed that faction to adopt and sustain policies that ultimately threaten the existence of the state of Israel. It is not permitted for anyone in the United States to say so. This is not just a tragedy for Israelis and their neighbors in the Middle East; it is doing widening damage to the national security of the United States.
The outrageous agitation that followed the leak of my pending appointment will be seen by many to raise serious questions about whether the Obama administration will be able to make its own decisions about the Middle East and related issues. I regret that my willingness to serve the new administration has ended by casting doubt on its ability to consider, let alone decide what policies might best serve the interests of the United States rather than those of a Lobby intent on enforcing the will and interests of a foreign government.
In the court of public opinion, unlike a court of law, one is guilty until proven innocent. The speeches from which quotations have been lifted from their context are available for anyone interested in the truth to read. The injustice of the accusations made against me has been obvious to those with open minds. Those who have sought to impugn my character are uninterested in any rebuttal that I or anyone else might make.
Still, for the record: I have never sought to be paid or accepted payment from any foreign government, including Saudi Arabia or China, for any service, nor have I ever spoken on behalf of a foreign government, its interests, or its policies. I have never lobbied any branch of our government for any cause, foreign or domestic. I am my own man, no one else’s, and with my return to private life, I will once again – to my pleasure – serve no master other than myself. I will continue to speak out as I choose on issues of concern to me and other Americans.
I retain my respect and confidence in President Obama and DNI Blair. Our country now faces terrible challenges abroad as well as at home. Like all patriotic Americans, I continue to pray that our president can successfully lead us in surmounting them.
The statement’s here:
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