On Wednesday, to the surprise of some spectators in the courtroom, a U.S. federal judge did the right thing: he followed the law.
Judge Lewis Kaplan had a clear choice before him: he could exclude the testimony of a government witness discovered via abusive CIA interrogation of Ahmed Khalfan Ghailani, or he could allow the government to introduce that testimony, in blatant violation of U.S. law. Ghailani, transferred from Guantanamo Bay to New York last year, is now on trial for allegedly assisting in the 1998 bombings of two U.S. embassies in East Africa.
In a U.S. federal court, testimony derived from a coercive interrogation is not admissible. A similar rule applies in the military commissions at Guantanamo Bay. Although judges there have more leeway, most military judges are equally principled and take the ban seriously. Torture-derived evidence is inadmissible for two reasons: to prevent U.S. authorities from engaging in torture, and because such evidence is inherently unreliable. International treaties similarly ban its use.
The government knew, of course, that this would be a problem, and it surely has plenty of other evidence against Ghailani or it wouldn't have transferred him to civilian court in the first place. After Judge Kaplan's ruling, Attorney General Eric Holder expressed his continued confidence in the case. Notably, four of his alleged co-conspirators in the bombings were tried and sentenced to life in prison back in 2001 - without the use of this particular government witness. Evidence introduced in that trial pointed to Ghailani as well.
Still, since Wednesday, commentators such as Liz Cheney and Jack Goldsmith have seized on Judge Kaplan's ruling to lament not the fact that Ghailani was thrown in a CIA black site for two years and likely tortured (the government refuses to address Ghailani's treatment in this trial but concedes he was "coerced"), but the fact that the judge has excluded the evidence that his interrogators squeezed out of him - or to claim the administration should never have given Ghailani a trial at all.
"If the American people needed any further proof that this Administration's policy of treating terrorism like a law enforcement matter is irresponsible and reckless, they received it today," announced Cheney after the ruling. Goldsmith, the Harvard Professor and former head of the Office of Legal Counsel Under President Bush, now writing on the new Lawfare blog, wonders "why the government is bothering to try Ghailani." Why not simply imprison him indefinitely?
Coming from Goldsmith, this is particularly disappointing. When he was at OLC, he had the courage to criticize his colleagues John Yoo and Jay Bybee for their twisted legal analysis that allowed them to institutionalize torture as U.S. policy. Now, rather than recalling that error as the source of the problem in Ghailani's trial today, he's criticizing the Obama administration for applying the rule of law at all.
Technically, Goldsmith may be right: the administration could just declare Ghailani an al Qaeda member and ongoing threat and hold him in military detention forever. That's the unfortunate consequence of the "war against al Qaeda, the Taliban and associated forces," which has no logical end. But as a matter of principle and policy, imprisoning people indefinitely without trial would be a disgrace, along the lines of what Goldsmith's colleagues at OLC sanctioned.
If there's anything the United States stands for -- or used to stand for -- it's that we don't throw people in prison without proof they've done something wrong.
Principle aside, it's just bad strategy. As General Petraeus has acknowledged, winning the war against al Qaeda and the Taliban is as much about winning over the local populations where they live as it is about U.S. military prowess. Throwing Muslims in prison for decades without charge or trial is hardly a good strategy. If, as national security experts tell us, al Qaeda's strategy is to present the U.S. war against terror as a war against Islam, indefinite detention of suspected Islamic insurgents without trial hands al Qaeda its most effective propaganda campaign on a silver platter.
Cheney and Goldsmith may be right that excluding a witness derived by torture will make the government's case against Ghailani more difficult. But in the end, a fair trial for a suspected terrorist in a respected federal court will do far more to defeat al Qaeda and its associates -- and to bolster the image of the United States in the world -- than will foregoing justice altogether.
It's nice to see that even conservatives are disgusted with Liz Cheney's latest attack on Eric Holder. As you've no doubt heard, Cheney is miffed that there are attorneys in the Department of Justice who, in the past, have defended people accused of nasty crimes. Of course, that's what defense lawyers are supposed to do, but that doesn't stop Liz Cheney from sponsoring scary videos insinuating that defending someone swept up by US forces and accused of terrorism is just fundamentally worse than defending an ordinary serial murderer, rapist or corporate swindler.
Among the many striking aspects of the Justice Department's recently-released ethics report on the creation of the "torture memos" are the repeated indications that John Yoo, the memos' principal author, was in frequent direct contact with the White House and under intense pressure to quickly approve abusive interrogation techniques that policymakers had already chosen to implement but knew might amount to torture.
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 Times on 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."
No one disputes that Jay Bybee's name is at the bottom of memos that were, and to some extent still are, treated as laws which legalized aggressive war at the pleasure of a president and a variety of acts of torture. For many months the House Judiciary Committee has had two excuses for not impeaching Judge Bybee, even while proceeding with the impeachments of a judge for groping and another judge for petty corruption. The private excuse has been that impeaching Bybee would be opposed by Fox News. The public excuse has been that the Justice Department has not yet released its Office of Professional Responsibility (OPR) report on the crimes of Bybee and his former colleagues.
It's October 23, 2002, and you're Jay Bybee, the man in charge of the Office of Legal Counsel in the United States Department of Justice. John Yoo and a bunch of other lawyers willing to claim that absolutely anything is legal work for you. But you'd much rather be a judge. That would be a cushy job, a lifetime job, a job with a book of the Bible named for it, a job where you would get to decide which crimes to legalize rather than being told by someone else, a job where you might eventually even get to rule on the legality of some of the crimes you were presently engaged in committing. At the moment, however, if you want to become a judge you're going to have to follow instructions, and that means legalizing the greatest crime of them all. Millions may die in the process, but you will get that nomination and you will become a judge.
There is strong evidence that John Conyers, Patrick Leahy, and most of the rest of us are in love with torture-lawyer Jay Bybee. I'm not talking about sexual love and wouldn't, because people's lives are lost to such bread-and-circuses journalism every day. I'm talking deep personal devotion.
Let's examine the evidence.
1. As head of the Office of Legal Counsel, Jay Bybee committed felonies in exchange for being nominated to a life-time seat on the 9th Circuit Court of Appeals. Bybee violated the Anti-Torture Statute and the War Crimes Statute by facilitating torture through secret memos purporting to legalize specific criminal acts. Bybee also played a leading role in a conspiracy to violate the UN Charter, the US Constitution, and the War Powers Act by signing a secret memo purporting to give presidents the unrestricted power to launch aggressive wars.
When I taught Ethics and The Constitution, I never ran across anything resembling a "Feasibility" Clause..!
It's really sad that clearly President Obama still does not get it...
The Constitution is not a Chinese menu from which you can and choose one from Column A and one from Column B...a document of convenience..one you can make it up as you go merrily along..!
Once you leave the comfort and shelter of the Constitution you are on the road to ruin, as both Dick Cheney and Nancy Pelosi are learning the hard way, and suffering the ramifications thereof..and President Obama shall apparently learn the hard way as well..sadly...for us all..and his legacy..
Jay Bybee wrote another memo that nobody has noticed, one purporting to authorize crimes far worse than torture, the same crimes the torture was itself intended to create false justifications for. On October 23, 2002, Assistant Attorney General Bybee signed a 48-page memo to the "counsel to the president" (Alberto Gonzales) titled "Authority of the President Under Domestic and International Law to Use Military Force Against Iraq." This was another secret law, but instead of authorizing particular uses of torture (which in reality were far exceeded, engaged in prior to the memos, etc.), this one authorized any president to single-handedly commit what Nuremberg called "the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole." And while the torture memos extensively and grotesquely limited the days of sleep deprivation and the hours of waterboarding, the aggressive war memo included only a single paragraph at the bottom of page 47 requiring that:
A couple things that didn't fit anywhere else on this topic:
From the footnote to page 9 of the 46-page May 10, 2005 Bradbury memo:
13 In Interrogation Memorandum, we also addressed the use of harmless insects placed in a confinement box and concluded that it did not violate the statute. We understand that--for reasons unrelated to any concern that it might violate the statute--the CIA never used that technique and has removed it from the list of authorized interrogation techniques; accordingly, we do not address it again here.
1. Is that true? Did CIA really never try this?
2. Why not? Did someone have a fit of conscience? I think there's a story worth knowing here.
From the same memo page 13, section 13 on "the 'Waterboard'" (the numbering is quite appropriate):
[...]In addition, you have indicated that the detainee as a countermeasure may swallow water, possibly in significant quantities. for that reason, based on advice of medical personnel, the CIA requies that saline solution be used instead of plain water to reduce the possibility of hyponatremia (i.e., reduced concentration of sodium in the blood) if the detainee drinks the water.
3. Just how much water are we talking about here? CIA is clearly talking from experience here. It takes a very large amount of water to induce hyponatremia. Litres, I would imagine. I take this as a sign that OLC knew just how barbaric this practice was - the detainee might die of over hydration.
In my analysis of Bybee's reliance on the use of the CIA's interrogation tactics within a training program called Survival, Evasion, Resistance and Escape (SERE), I recalled a couple written anecdotes on the subject I had read from books written by ex-SAS (British special forces, analogous to Delta Force) members in the 1990s. I've excerpted them below just to elucidate a couple points I was making in the previous entry.
Tuesday night at the monthly meeting of the largest county Democratic Party in the nation, Los Angeles, the vote was unanimous on a resolution calling for the impeachment of Judge Jay Bybee, author of the famous "torture memo" -- aka "the Bybee memo."
Unanimous. LACDP spoke with one loud, clear voice on this. Next week, we'll be working this resolution at the California Democratic Party Convention in Sacramento. And I hope Democrats (and Republicans, too) will join together in crafting resolutions calling for accountability. It's time to dismantle the Bush Administration's torture policy, and bring its facilitators to account.
We need to counter the establishment pressure to move away from this evil with our own pressure, to support the rule of law, to recognize that justice delayed is justice denied, and that a failure to hold accountable these acts will result in them returning, in spades, in the future. Without this accounting, in a very real sense our democracy dies.
And there is an actual mechanism, a way to leverage grassroots anger and push the elected officials who can make these decisions, at least in one case. We can prove the desire for accountability in the country and take a systematic approach to restore democracy and the rule of law. And it starts with Jay Bybee.
Dday, digby and tristero have all written about it since at Hullabaloo. I agree with dday 100%. This is the beginning of how the grassroots can organize to force the beginnings of accountability in Washington. More background, info on what's to come and how to do it on the flip.
In part 1, I outlined four categories of problems with Bybee's reasoning. In this piece, I'd like to tackle his (and CIA's) reliance on the use of these tactics in other contexts, most frequently as part of military counter-interrogation training.
In the first portion of the memo, pages 1-6, Bybee outlines some evidence CIA has provided him on the use of these techniques, in terms of the potential harm they cause. The premise of this is sound, but it falls down in Bybee and CIA's reliance on it, because in fact the evidence they're able to gather is far too scattered and in most cases, not nearly applicable enough for any surety as to the safety and harmlessness of these tactics.
Bybee primarily relies on the experience of the military's Survival, Evasion, Resistance and Escape (SERE) training program, where (voluntary members of the military) are put through a POW-camp escape training exercise, involving recapture and subsequent interrogation by a hostile government power. Inside an analysis of Bybee's use of this.
Digby and DDay have been covering the growing calls for the impeachment of 9th Circuit Court Judge Jay Bybee, the author of this OLC memorandum endorsing the legality of the CIA's proposed interrogation tactics on Abu Zubaydah.
I'd like to make my own run at this horrendous document. Many particular passages have been repeatedly quoted, but I don't want to lose the burning forest for the fetid, rotting trees on this one. The thesis of the document is deeply flawed, resting on numerous obviously ridiculous unstated assumptions.
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