A casa branca de Bush mantem Waterboarding era legal quando usada

O departamento da justiça abriu uma investigação interna em se seus oficiais superiores impropriamente autorizaram ou reviram o uso do CIA de waterboarding ao interrogating suspeitos do terror, de acordo com originais liberaram sexta-feira.

A investigação foi revelada no pedido de Sens democrático. Dick Durbin de Illinois e de Sheldon Whitehouse de Rhode - console. Um spokesman do departamento da justiça, entretanto, disse que o inquérito foi ongoing por diversos anos. As perguntas sobre waterboarding são parte de uma ponta de prova maior da justiça do memorando so-called de Bybee, escreveram o Marshall Jarrett, cabeça do escritório do departamento da responsabilidade profissional, em um fevereiro. letra 18 aos dois senators. “Entre outras edições, nós estamos examinando se o conselho legal contido naqueles memorandos era consistente com os padrões profissionais que se aplicam ao departamento de advogados da justiça,” Jarrett escreveu. Pedido detalhes, o spokesman Brian Roehrkasse da justiça dito, “isto não é uma investigação nova, mas rather foi ongoing por alguma hora.” Waterboarding envolve prender com correias uma pessoa para baixo e derramar o excesso da água his ou sua cara pano-coberta para criar o sensation de afogar-se. Foi centenas traseiras seguidas dos anos, ao Inquisition espanhol, e condemned por nações em torno do mundo. Chamada dos críticos ele um formulário da tortura. O memorando no coração do inquérito interno da justiça foi datado agosto. 1, 2002, e escrito pelo Attorney General Jay Bybee de então-Assistente para os conselhos então-Brancos Alberto Gonzales da casa. Definiu a tortura como reconhecido por ESTADOS UNIDOS. a lei como o extremo do covering “somente age” causando a dor similar na intensidade àquela causada pela falha da morte ou do órgão. A administração de Bush mantem waterboarding era legal quando foi usado por interrogators do CIA em 2002 e em 2003 al-Nashiri no al-Rahim superior do Sheikh Mohammed, do Abu Zubaydah e do Abd de Khalid dos detidos do al-Qaida. Mais cedo este mês, waterboarding dito Hayden do diretor Michael do CIA foi usado, na parte, por causa de opinião difundida entre ESTADOS UNIDOS. oficiais da inteligência que uns ataques mais catastróficos eram imminent. O CIA proibiu seu pessoal de usar waterboarding em 2006. Attorney General Michael Mukasey has refused to publicly discuss whether waterboarding is currently legal since it is no longer used by CIA interrogators. Durbin called the internal Justice inquiry “long overdue” and noted that the U.S. government has previously prosecuted waterboarding as a war crime. “Within the question how America could come to use interrogation techniques of the Inquisition is the question how the Department of Justice could have overlooked its own precedents to authorize waterboarding,” added Whitehouse, a former federal prosecutor. He suggested “the answer was preordained and the department was driven by politics and obedience, not law and independence.” Mukasey told Congress earlier this month that he would not pursue criminal charges against CIA officials who used waterboarding after relying on Justice Department guidance that the interrogation tactic was legal. He said Friday he did not believe the Bybee memo was politically motivated. “I have no reason to believe that politics was involved in that or any other analysis,” Mukasey said.

Copyright 2008 by The Associated Press.

CIA And Britain Admit U.S. Rendition Flights Used British Territory In 2002

Reversing an earlier claim, the CIA has acknowledged that two U.S. rendition flights carrying two alleged terrorists refueled on a U.S. base in British territory in 2002. CIA Director Michael Hayden told agency employees in a message on Thursday that information previously provided to Britain that no such flights used British airspace or soil since the 9/11 attacks turned out to be wrong.Britain has confirmed the acknowledgement, as British Foreign Secretary David Miliband made a similar statement in the parliament on Thursday.

“Contrary to earlier explicit assurances that Diego Garcia had not been used for rendition flights, recent U.S. investigations have now revealed that this had in fact occurred on two occasions, both in 2002,” Miliband told the House of Lords.

“In both cases a U.S. plane with a single detainee on board refueled at the U.S. facility in Diego Garcia,” he added.

Hayden said a review of the rendition records late last year found that the refueling, conducted more than five years ago, lasted just a short time.

“We found this mistake ourselves, and that we brought it to the attention of the British government. An important part of intelligence work, inherently urgent, complex, and uncertain, is to take responsibility for errors and to learn from them,” the AP quoted Hayden as saying.

One of the prisoners was ultimately jailed at Guantanamo Bay Naval Base and the other was released to his home country, Hayden revealed in the message. He insisted that neither of them was tortured and denied there has ever been a holding facility for CIA prisoners on Diego Garcia, a British island territory in the Indian Ocean.

Source

Congress must remedy its abysmal record of investigating the Bush administration on prisoner abuse and torture.

By Anthony D. Romero

It’s now a matter of public record: the Central Intelligence Agency has tortured detainees held in U.S. custody.

In the past week, the Bush administration announced that it is seeking the death penalty for six men allegedly involved with the 9/11 terrorist attacks; evidence against them was gathered through coercive, brutal interrogation tactics — including waterboarding. Only days earlier, CIA director Michael Hayden publicly defended the government’s use of this abhorrent practice, while both the White House and the director of national intelligence agreed that further use of waterboarding is acceptable if the president and attorney general approve.

It has been known for months that the CIA destroyed videotapes depicting its so-called enhanced interrogations of two al-Qaida suspects. With the government’s latest disclosures, we now know that those two detainees were waterboarded, as the tapes might have revealed. The tapes’ destruction potentially constitutes the crime of obstruction. By destroying them the CIA also disregarded a request from the 9/11 Commission for documentation that could provide information about the 9/11 attacks, and it appears to have flouted court orders — one of which was issued in response to the ACLU’s Freedom of Information Act lawsuit demanding information about the United States’ treatment of detainees overseas. The ACLU has asked that the CIA be held in contempt for violating the judge’s order by destroying the tapes.

Both Congress and the Justice Department have taken on the necessary task of investigating the tapes’ destruction. Unfortunately, Congress’ oversight record concerning the Bush administration’s abuses of power has been abysmal. The Justice Department’s investigation is also problematic. It is neither independent nor objective, and its scope, which fails to include the potential criminality of the underlying acts depicted on the tapes, is too narrow. A special counsel is urgently needed, now more than ever.

Not just activists and pundits feel that way. According to a recent Mellman Group survey commissioned by the ACLU, Americans of all political stripes overwhelmingly support the appointment of an independent prosecutor to investigate both the destruction of the CIA’s interrogation tapes and the possible use of torture by the agency. Every segment of the electorate — including clear majorities of Democrats (82 percent), independents (62 percent), and Republicans (51 percent) — want to hold this administration accountable for its role in the destruction of the torture tapes. It seems that human rights is still, thankfully, a nonpartisan concern.

Attorney General Michael B. Mukasey’s choice to head up the investigation of the tape destruction is a veteran federal prosecutor from Connecticut, John H. Durham. By all accounts, Durham has a respectable reputation. Nevertheless, he ultimately reports to Mukasey, who to this day refuses to acknowledge that waterboarding is torture and has told Congress that the use of waterboarding by CIA interrogators “cannot possibly be the subject of a criminal” investigation.

What is needed is a special counsel who is granted the same authority as the attorney general in matters pertaining to the investigation — like Patrick J. Fitzgerald on the disclosure of a CIA officer’s identity. Considering what we already know of the Bush administration’s record on torture and prisoner abuse, investigative independence is essential.

The special counsel must also focus on the core issue of whether or not the interrogation techniques depicted on the tapes were illegal. What can’t get lost in the controversy surrounding the tapes’ destruction is the underlying issue of our government’s use of abusive and unlawful interrogation techniques — including waterboarding. The tapes are gone forever, but what must not disappear along with them is accountability for what they most surely would have revealed.

The widespread international belief that the United States government is systematically and willfully breaking the law, violating international treaties, and ignoring American values by engaging in torture is a deep stain on our country’s reputation. Americans want to know the facts and the extent to which their government acted with brazen disregard for basic human rights. Naming a special counsel would be a good and necessary start.

By Kerry Sheridan in Washington

US President George W. Bush plans to veto legislation passed by the Senate to bar the CIA from using harsh interrogation methods including waterboarding.

“The President will veto that Bill,” White House spokeswoman Dana Perino said.

“The United States needs the ability to interrogate effectively, within the law, captured al-Qaeda terrorists.”

“Bush doesn’t favour torture”

The Democratic-led Senate yesterday voted 51-45 in favor of a Bill calling for the Central Intelligence Agency to adopt the US Army Field Manual, which forbids waterboarding and other types of coercive interrogation methods.

However, the vote fell short of the two-thirds majority needed to overcome a presidential veto. The House of Representatives passed similar legislation in December.

Democratic New York Senator Charles Schumer said that if Bush “vetoes intelligence authorisation, he will be voting in favour of waterboarding.”

Future techniques not ruled out

Asked by a reporter if President Bush, who leaves office in 2009, would be labelled as the first US president who favored torture, Ms Perino rejected the assertion and dismissed Senator Schumer’s argument as simplistic.

“Across the board people will see, over time, that this was a president who put in place tools to protect the country against terrorists,” Ms Perino said.

“The president does not favour torture. The president favours making sure we do all these programs within the law,” she said, adding that “all the interrogations that have taken place in this country have been done in a legal way”.

Ms Perino said the United States does not currently use waterboarding, a simulated drowning technique denounced by rights groups as torture, even though the CIA has admitted using the technique in the past.

She reiterated the administration’s assertion last week that it would not rule out the use of such techniques in the future.

“Currently under the law it is not (allowed),” she said.

“As we said last week as well, we are not going to talk about what may or may not be lawful in the future.”

Manual too weak

The Senate Bill would limit the CIA and other intelligence agencies to the 19 interrogation techniques outlined in the military’s manual. Waterboarding is not among them.

Ms Perino said the intelligence community’s view is that the Army Field Manual sets an inappropriate standard for seasoned CIA interrogators who are working to extract information from sophisticated militant operatives.

“Today with this Bill that they are sending to us they would basically repeal the terrorist interrogation program in favor of something that will definitely weaken our ability to protect the country,” Ms Perino said.

McCain votes against Bill

Rival Democratic White House hopefuls Senators Hillary Clinton and Barack Obama were on the road campaigning and did not take part in the vote Wednesday.

The likely Republican nominee, Arizona Senator John McCain, voted against the Bill. The former prisoner of war however said that his vote was consistent with his anti-torture stance.

“We always supported allowing the CIA to use extra measures,” he said.

“I believe waterboarding is illegal and should be banned,” Senator McCain said.

Irish Sun

The US Senate has voted to prevent the CIA from using torture-like waterboarding and other forms of coercion on prisoners, completing work on a bill already passed by the other chamber in December.

The bill, passed in a 51 to 45 vote Wednesday, will now be sent to the White House, the Washington Post reported online. US President George W. Bush has threatened to veto the measure.

The bill requires the CIA and other intelligence agencies to follow the US army regulations in questioning prisoners, the Washington Post reported online.

In intense debate over the past two weeks, the White House has refused to rule out the possibility of using waterboarding, which simulates drowning.

CIA director Michael Hayden has admitted to Congress that the agency used the technique to get information from three top Al Qaeda operatives, including Khalid Sheikh Mohammed, the suspected mastermind of the Sep 11, 2001 terrorist attacks who was captured in Pakistan in 2003.

Congress previously banned waterboarding and other harsh tactics, but the Bush administration said the law did not apply to intelligence agencies.

The top US law enforcement official, Attorney General Michael Mukasey, has also refused to tell the Senate whether he believed waterboarding is legal or not.

‘If this were an easy question, I would not be reluctant to offer my views on this subject,’ Mukasey said.

Lawmakers have based the contents of the bill on the contents of the US Army’s handbook for interrogation techniques, which expressly prohibits mock drowning. The House version of the bill banned sexual humiliation, mock executions, the use of attack dogs and the withholding of food and medical care, the report said.

Can a DOJ lawyer be held accountable for advocating the inhumane?

By Doug Cassel

When on Jan. 22 a federal court judge sentenced Jose Padilla to 17 years in prison for conspiracy to commit terrorism, it was a one-day story. But, in fact, the Padilla case goes on.

Padilla, a U.S. citizen and former Chicago gang member, alleges that he was tortured during the more than three and a half years he spent behind bars at a Navy brig in South Carolina. He is now suing John Yoo, the former Justice Department lawyer who reportedly devised the legal theories to justify the interrogation techniques used against him.

While Padilla’s suit raises a number of constitutional claims—including that the military violated his rights to counsel and to exercise his Muslim religion—the heart of his argument is that Yoo gave legal advice to justify his torture, in violation of due process of law as guaranteed by the Fifth Amendment to the Constitution.

Padilla, who is separately appealing his recent conviction, asks the court to rule that his treatment violated the Constitution, and to order Yoo, now a law professor at the University of California at Berkeley, to pay him $1 in damages.

The suit raises important questions of law and fact. Are lawyers liable for giving bad legal advice to federal officials?

In August 2002, Yoo, then an attorney in the Justice Department’s Office of Legal Counsel, wrote a formal opinion letter advising that interrogation techniques are not torture unless they inflict pain equivalent to “organ failure, impairment of bodily function or even death.” The new head of the Office of Legal Counsel, Jack Goldsmith, later withdrew Yoo’s opinion.

Goldsmith, now a Harvard law professor, explains in his book, The Terror Presidency, that Yoo’s reasoning was “legally flawed” and “tendentious.” It seemed “more an exercise of sheer power than reasoned analysis.” Even so, was it the proximate cause of any mistreatment of Padilla?

However such questions are resolved, Padilla’s allegations of his treatment, if true, ought to shame a civilized society.

‘Measurably abnormal’

Padilla charges he was imprisoned in a seven-foot by nine-foot cell in the Navy brig in Charleston, S.C., for nearly four years. For the first 21 months, he says he was denied all contact with anyone outside the brig, including family and lawyers, leaving him with interrogators and guards as his only human contact.

He alleges he was allowed no watch or clock, nor any news about the outside world. The only window in his cell was blacked out. When he was allowed out of his cell, his eyes and ears were covered.

Periodically, he says, he was subjected to absolute light or darkness for periods in excess of 24 hours. He was subjected to extreme temperature variations in his cell, where his bed consisted of a cold steel slab with no mattress, pillow or blanket. He says brig guards and others deliberately banged on his walls and bars at all hours of the night. For hours at a time, he says guards kept him shackled and manacled, or forced him to sit or stand in uncomfortable and painful positions.

Worse, his interrogators allegedly threatened to cut him with a knife and pour alcohol in the wounds. He says they also threatened to kill him, or send him to a country where they said he would receive far worse treatment. Against his will, they allegedly administered chemicals, which Padilla believes were psychotropic drugs.

When his lawyers were finally allowed access to him, he was not permitted to tell them about prison conditions.

If Padilla’s allegations are true, they qualify as torture under international law: the intentional infliction of severe physical or mental pain for purposes such as interrogation. The U.N. Committee on Torture and the Inter-American Court of Human Rights have held that incommunicado detention—even for periods far shorter than Padilla endured—is torture. They have also ruled that combinations of sensory deprivation techniques amount to torture, as well.

According to Padilla’s complaint, a “substantial body of clinical literature and expert opinion … holds that restriction of environmental and social stimulation has a profoundly deleterious effect on mental functioning, and that even a few days of solitary confinement predictably causes brain patterns to become measurably abnormal.”

It would drive anyone mad.

Waging ‘lawfare’

Yoo has castigated Padilla and his lawyers at the Yale Law School clinic for waging “lawfare,” which Yoo calls “another dimension” of the terrorist war against the United States.

In a Jan. 16 op-ed in the Philadelphia Inquirer, Yoo complained that terrorists use cases like Padilla’s to press “novel theories that have failed at the ballot box.”

If their legal theories are novel, Yoo can thank himself: Never before has the Justice Department sanctioned prolonged, mind-altering brutality on a U.S. citizen.

Still, suing a government lawyer for rendering legal advice, no matter how injudicious, ought to give pause. Such lawsuits could deter creative thinking by attorneys trying to protect the public. If allowed at all, they should be confined to rare and extreme cases, such as Yoo’s torture memo.

There are limits on what advice lawyers may give. After World War II, German government lawyers who wrote memos and orders depriving Russian prisoners of war of their Geneva Conventions protections, and authorizing the forced disappearances of political prisoners, were convicted at Nuremberg. Would authorizing torture of prisoners have made them any less guilty?

Although the suit against Yoo does not seek to convict him of a crime, it does aim to hold him civilly liable—for a symbolic $1 in damages—not only for the torture, but also for his legal advice that allegedly led to violations of Padilla’s constitutional rights. Those include the rights to counsel, access to court, due process of law, freedom of religion, rights to information and association, and his rights to be free from inhumane conditions of confinement, cruel and unusual punishment, coercive interrogations and improper military detention.

In pressing these wide-ranging claims, Padilla’s lawyers face daunting legal obstacles. Unlike most damages suits for violations of basic rights, civil rights law does not authorize their lawsuit. By necessity, Padilla’s suit rests directly on the Constitution. While the Supreme Court has authorized suits for damages based solely on violations of the Constitution, it does so sparingly—when the violations would not otherwise be subject to judicial or effective oversight and, even then, only if no special factors weigh against the wisdom of creating a new cause of action.

Only one of Padilla’s claims—under the Eighth Amendment—has arguable Supreme Court precedent. Some claims may fail on the ground that they are subject to judicial oversight in the criminal proceedings against him. Others may be rejected because they deal with gray areas of national security law, where legal mistakes should not result in damages suits.

But Padilla should probably be allowed to try at least his core claims—that the torturous confinement and interrogation techniques violated his Fifth Amendment right to due process, and possibly his Eighth Amendment right not to be subjected to cruel and unusual punishment. To the extent the prosecution in his criminal trial did not rely on any coerced confession by Padilla, these alleged violations have not been subject to judicial oversight.

Curbing an imperial presidency

If Padilla overcomes this hurdle, others remain. Yoo may contend that he is entitled to absolute immunity, as are prosecutors when presenting their cases to a court. But Yoo more likely will be granted only the “qualified immunity” afforded to prosecutors when they advise police on interrogation techniques, or to the attorney general when he authorizes national security wiretaps without a judicial warrant.

If Yoo is granted qualified immunity, he can be held liable for his erroneous legal advice only if it violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” In this case, his legal advice plainly did: Yoo’s memo legally authorized torture.

But the issue is not so simple.

Yoo’s overriding legal rationale is that the president’s powers give him constitutional license to override any law—including laws against torture—if he deems it necessary to wage a war. The courts may thus need to consider whether any reasonable lawyer could advise that the Constitution allows the president to disregard all law during wartime.

Finally, the government might decide to assert the “state secrets” privilege to quash Padilla’s claims, on the ground that the claims cannot fairly be adjudicated without probing secret intelligence methods and communications.

Unless barred by the state secrets privilege, Padilla’s suit will likely break new ground. Far from a case of “lawfare,” it promises to strengthen the rule of law by clarifying whether and when government lawyers can be held accountable for ill-considered legal advice.

Jim Bronskill

An investigation by the watchdog over the Canadian Security Intelligence Service concludes the spy agency “uses information obtained by torture” - perhaps its bluntest assessment of CSIS’s intelligence-gathering practices to date.

The Security Intelligence Review Committee, which began looking into the issue two years ago, stops short of accepting Toronto lawyer Paul Copeland’s assertion that CSIS had shown a “total lack of concern” about evidence possibly gathered through coercive means.

But it finds that CSIS’s concern has focused on the impact that torture might have on the reliability of information it uses, rather than obligations under the Charter of Rights, the Criminal Code and international treaties “that absolutely reject torture.”

Questions about Canadian reliance on information extracted from suspected terrorists through brutal methods have arisen in several high-profile cases.

Copeland’s complaint to the review committee, which reports to Parliament, stemmed from evidence CSIS entered in the case of client Mohamed Harkat who is slated for deportation to his native Algeria under a national security certificate.

CSIS contends Harkat, a former pizza delivery man, is an Islamic extremist and collaborator with Osama bin Laden’s terrorist network - a charge he denies.

During bail proceedings for Harkat in 2005, Copeland questioned a senior CSIS analyst, identified only as P.G., whether he ever asked if information he handled was obtained through torture.

P.G. insisted he would usually try to corroborate such material through independent sources.

Copeland was left with the impression the spy service made no effort to determine whether information was extracted by torture.

In its report, recently delivered to Copeland, committee member Aldea Landry noted CSIS is required, before entering a foreign liaison arrangement, to address the country’s human rights record. That includes possible abuses by its security or intelligence organizations.

In addition, arrangements with countries that do not share Canada’s respect for human rights are to be considered only when contact is necessary to protect the security of Canada.

“Based on these facts, I find CSIS is concerned with human rights, but nevertheless uses information obtained by torture.”

In an interview, Copeland said Tuesday he does not take much comfort from the review committee’s finding: “It’s nice to have them say it, but what are they doing to try and prevent CSIS from (using such information)?”

Landry called on CSIS to promptly implement the recommendations of the federal inquiry into the case of Maher Arar.

Landry said the changes - and any that might flow from an ongoing inquiry into the foreign imprisonment of three other Arab-Canadians - would ensure the use of information obtained from other countries does not violate Canadian law or treaty obligations.

Justice Dennis O’Connor, who led an inquiry into Arar’s case, made a number of recommendations in September 2006 intended to guard against Canadian complicity in torture and to safeguard the rights of those confronted with evidence that may have been gathered using extreme methods.

Arar, an Ottawa engineer, was sent to Syria and imprisoned in Damascus after being detained at a U.S. airport in September 2002. O’Connor concluded false information the RCMP provided to American officials likely led to Arar’s deportation.

In committee report, Landry said CSIS had made some strides toward ensuring compliance with O’Connor’s recommendations but that “it will take some time” to fully do so.

Manon Berube, a CSIS spokeswoman, said the intelligence service would “closely evaluate” the new review committee report as part of “its ongoing efforts to improve how it deals with this difficult issue.”

Former Supreme Court Justice Frank Iacobucci is currently probing the actions of Canadian officials in the cases of Abdullah Almalki, Ahmad El Maati and Muayyed Nureddin.

The trio maintain they were tortured in Syria - and in the case of El Maati in Egypt as well - due to flawed information from Canadian security agencies.

Alan Bock

So it’s out in the open now. Central Intelligence Agency Director Gen. Michael Hayden admitted to the Senate Intelligence Committee on Tuesday that the CIA used the coercive interrogation technique known as waterboarding, a form of simulated drowning, on three al-Qaeda operatives in 2002 and 2003. The technique is widely viewed as torture, which is prohibited by U.S. law and international treaties. Gen. Hayden said it has not been used since 2003 but that the CIA could use it again if approved by both the attorney general and the president.

The Justice Department is currently investigating the destruction of videotapes of the interrogations of two detainees held in Thailand who were reportedly subjected to waterboarding and other coercive interrogation techniques to determine whether destroying the tapes amounted to obstruction of justice. However, Attorney General Michael Mukasey said Thursday that the Justice Department cannot probe the legality of the interrogations themselves because the department said they were legal in 2002 and 2003, but new laws passed since then make it “not certain that that technique would be considered lawful under the current statute.” CIA director Hayden says he prohibited his agency from using waterboarding in 2006.

Well, now. Do you suppose that public disclosure of these incidents will lead to a firm U.S. policy preventing government operatives from using torture in the future? Given the almost incoherent murmurings from the administration, that may be too much to hope for as long as this administration is in power. Press spokesman Tony Fratto intimated that it might be used in the future (though the CIA and FBI seem convinced it is illegal) and Darth Cheney (of course!) said he was glad and proud that the U.S. had done it.

Will that attitude last forever? Perhaps the best thing about the emergence of Sen. John McCain as the Republican presidential front-runner is that Sen. McCain, who was tortured by the North Vietnamese while a POW during the Vietnam War, has expressed his firm opposition to the use of torture by the U.S. He has said that one thing that helped him endure torture and imprisonment was the knowledge that our side doesn’t engage in such barbarity – although Philippine guerrillas could testify that it was not always so.

Torture is sometimes justified as the only way to extract information from detainees when an attack is deemed imminent, and Gen. Hayden said in 2002 and 2003 that everybody expected more attacks after 9/11. But most experienced interrogators say that torture seldom if ever produces reliable intelligence and that while other techniques may take longer, they generally produce better information. Recent Army War College research reinforces the perception that although there may be occasional instances when a detainee blurts out the truth under torture, in the vast majority of instances people being tortured say what they think the torturer wants to hear or might believe – anything to get the pain to stop. If the person being tortured has any training or dedication to cause at all, torture is much more likely to produce lies than the truth.

Sometimes torture that elicits lies can lead to much larger tragedies. As I wrote a couple of years ago:

“For example, Ibn al-Shaykh al-Libi was subjected both to the cold cell and waterboarding. Eventually he told interrogators that Saddam Hussein’s regime had trained al-Qaeda members to use biochemical weapons. This ‘confession’ became a key part of the administration’s case for invading Iraq. But it was pure invention. And relying on it led to a huge disconnect between justification and the realities that emerged after the invasion of Iraq that would have been hugely embarrassing to the administration, if this administration were in fact capable of embarrassment.

“Not that the president or anybody in the administration has even acknowledged, let alone apologized for, the mistakes and lies that led many Americans to support the invasion initially.”

At a more fundamental level, the use of torture blurs the line between civilized societies and ruthless barbarians. Permitting torture by the government of a society that likes to think of itself as civilized can lead to tragic and bizarre results. Former CIA analyst Ray McGovern noticed, for instance, that on Thursday President Bush attended the annual National Prayer Breakfast and intoned: “When we lift out hearts to God, we’re all equal in his sight. We’re all equally precious …In prayer we grow in mercy and compassion.” That same day Darth Cheney told the Conservative Political Action Conference he was glad the U.S. had detained and harshly interrogated those al-Qaeda prisoners, whom he apparently didn’t consider quite equal and deserving of mercy and compassion.

In the larger struggle with jihadist terrorists and their supporters and those tempted to harbor them, the perception that the United States has a certain moral authority is invaluable. Moral authority (sometimes deserved, sometimes not) was a key factor in the long, twilight struggle we call the Cold War. Using torture undermines that moral authority.

It is beyond dismaying, therefore, that White House spokesman Tony Fratto on Wednesday was still saying that waterboarding might be used justifiably in the future. It would have been better to acknowledge that in the wake of 9/11 the U.S. used coercive techniques, that one could understand the temptation considering the circumstances and the lack of knowledge about al-Qaeda, but that we had renounced them.

It is telling that the firmest opponents of the use of torture tend to be military and former military people, who understand the dangers to captured military personnel if it is widely believed that the U.S. still engages in torture. During previous debates on torture not only Sen. McCain but Colin Powell, former Chairman of the Joint Chiefs of Staff, and South Carolina GOP Sen. Lindsey Graham of South Carolina, a former military lawyer, as well as dozens of retired top-level officers, weighed in against even a hint of the authorized use of torture.

The most prominent defenders of torture are sofa samurai and deskbound intellectuals and lawyers whose experience consists of watching “24″ and dreaming up convoluted justifications. These mock-macho war weenies deserve to – no, I guess it would be inconsistent to waterboard them, but if they ever came to my house I would throw them in the pool.

Perhaps there’s a bright side to the fact that modern “conservatives” (unlike the hardy breed that emerged in the 1950s and 1960s) tend to be worshippers of authority figures. At the CPAC convention they went beyond being polite to John McCain, whom most of them couldn’t stand a few days ago and started applauding him enthusiastically. (Some of them did stay and applaud Ron Paul, who was especially tough on the war and directly critical of McCain on a range of issues.) He was, after all, the designated leader now, and conservatives and Republicans love to “touch the purple” as a former colleague used to put it.

Now that the wearer of the purple is an opponent of the use of torture by the United States, will the newly enlightened followers of the newly anointed Great Man stop justifying and demanding torture? Probably not entirely, but they might not make it so central to their public talking points.

PETER URBAN

Connecticut federal prosecutor John Durham can clear at least one task off his full plate. His criminal investigation into the destruction of CIA interrogation videotapes won’t touch waterboarding.

Attorney General Michael Mukasey told the House Judiciary Committee last week that his lawyers concluded that the CIA’s use of waterboarding in 2002 and 2003 was legal. So the department cannot investigate whether a crime occurred.

Two months ago, Mukasey called on Durham to lead an investigation into the destruction of videotapes that showed CIA officers using tough interrogation methods while questioning two al-Qaida suspects.

Mukasey suggested at the time that Durham would follow the investigation wherever it took him.

The waterboarding question came up after the Bush administration revealed earlier in the week that the CIA had indeed used the technique on a few occasions.

CIA Director Michael Hayden confirmed Tuesday that the CIA waterboarded al-Qaida prisoners Khalid Sheik Mohammed; Zayn al-Abidin Muhammed Husseing and Abd al-Rahim al-Nashiri at a secret detention site. He defended the use of waterboarding as necessary to obtain information about potential terrorist attacks.

Vice President Dick Cheney also hit the Republican speakers’ circuit last week to defend the practice.

“It’s a tougher program for a very few tougher customers,” Cheney told the Conservative Political Action Convention and the Pennsylvania State Victory Committee. “The program is run by highly trained professionals who understand their obligations under the law.

“And the program has uncovered a wealth of information that has foiled attacks against the United States.”

House Judiciary Committee Chairman John Conyers asked Mukasey straight up about the program during an oversight hearing last week.

“Are you ready to start a criminal investigation into whether this confirmed use of waterboarding by United States agents was illegal?” asked Conyers, D-Mich.

“That’s a direct question, and I will give a direct answer. No, I am not,” Mukasey said.

Here’s his torturous reasoning.

At the time of the waterboarding, it was done “as part of a CIA program” that had been cleared as “permissible under the law as it existed then” by the Department of Justice’s Office of Legal Counsel.

To launch a criminal investigation of a technique used by someone who relied on a Justice Department opinion as legal would put in question not only that opinion “but also any other opinion from the Justice Department,” Mukasey said.

“Essentially, it would tell people: ‘You rely on a Justice Department opinion as part of a program, then you will be subject to criminal investigation when and if the tenure of the person who wrote the position changes or, indeed, the political winds change.’ And that’s not something that I think would be appropriate and it’s not something I will do,” he said.

Rep. William Delahunt, D-Mass., a former state attorney general, seemed skeptical of that logic, noting that the “law is the law” and that relying on bad legal opinions to shield oneself from prosecution would be a new legal doctrine.

“You know, this is brand-new legal theory, at least in terms of my own legal scholarship,” he said.

Rep. Adam Schiff, D-Calif., wasn’t satisfied with Mukasey’s answer either.

“If we don’t establish a bright line, in this country, that we don’t torture, then it makes it very hard for us to argue to other countries that they shouldn’t torture our people, period,” he said.

Mukasey countered that there is a bright line: “We bar the torture.”

Simple? Well, then he adds the legal footnote: “The evaluation of whether a particular practice constitutes torture could be presented to me only in a particular situation, namely, whether it was defined, part of a proposed program, in which case I would pronounce on it one way or the other.”

“That’s a bright line that we can hold up to the rest of the world?” Schiff asked.

“We have and do defend our position before the rest of the world. We have people in the State Department who do a superb job at that. And we will continue to do that,” Mukasey explained.

Connecticut Sen. Chris Dodd issued a statement urging a brighter line than Mukasey’s.

“There is no such thing as ’simulated’ drowning. When a person is strapped to a board and water is poured into their mouth and nose with no way to get air, that is drowning; that is torture,” he said.

Dodd said that President Bush should make clear that “all forms of torture — including waterboarding — are always wrong and always illegal.”

l

Speaking of torture

Sen. Joe Lieberman offered some insights into hostilities that afflict moderates from both ends of the political spectrum. Lieberman gets the brunt from liberal Democrats while his conjoined twin John McCain takes it from conservative Republicans.

“I do see some similarities. It is part of what is wrong in American politics today,” Lieberman said. “At the margins of either party there is a significant group of people who seem to really want to be more in a fight than to get things done.”

Lieberman says the majority is in the middle looking for Democrats and Republicans to find common ground for the good of the nation.

“John McCain is a conservative Republican but it is important to say that he is his own man and he will do what he thinks is right. As devoted a Republican as he is, if party interest conflicts with what he thinks is in the national interest he will always go with the national interest.”

(Yes, it seems Lieberman can’t make the connection between getting things done and getting out of Iraq — something two-thirds of Americans have consistently said they believe is in the nation’s interest.)

Drip. Drip. Drip.

The White House is defending the use of the interrogation technique known as waterboarding in certain, rare circumstances when suspects are believed to have knowledge of an imminent threat. VOA’s Paula Wolfson reports the Central Intelligence Agency now admits it used the technique roughly five years ago on three top terror suspects.

Tony Fratto, 04 Jan 2008

White House spokesman Tony Fratto says President Bush personally authorized the disclosure - breaking with the long-standing practice in the administration of refusing comment on specific interrogation techniques.

He says the decision to have Central Intelligence Agency chief Michael Hayden go before a Congressional committee and reveal the use of waterboarding in the past was difficult, because it could provide the enemy with information about the CIA’s program for questioning terror suspects.

“This decision to allow General Hayden to talk about the technique wasn’t taken lightly,” Fratto said. “There was discussion of great concern about starting to talk about something we don’t ordinarily do for reasons that we feel very strongly about.”

Fratto says so much misinformation has been disseminated about the interrogation program, that the White House felt it was time to set the record straight.

Fratto says waterboarding - which simulates drowning - was approved in a few specific instances and with certain safeguards in place.

The CIA banned the practice in 2006. Fratto says interrogators might be able to use it again, but emphasized they would need authorization from the president to do so.

He noted that any CIA request to use the technique would have to be declared legal by the Justice Department before consideration at the White House. He says approval depends on the circumstances, adding one important factor would be the belief that an attack might be imminent.

“Any change to the enhanced interrogation technique that may be used will follow the process that I outlined which includes a legal review and notification of Congress,” he said.

Critics have called waterboarding a form of torture. But Fratto says its use in the past under the conditions approved by the attorney general and the president was legal.

On Capitol Hill, a senior Democrat - Senator Dick Durbin of Illinois - denounced the use of waterboarding under any circumstances. He noted that in its annual human rights report, the U.S. State Department is quick to condemn other nations that use harsh interrogation techniques on prisoners.

“So once a year we stand in judgment of the world, and condemn them for engaging in waterboarding and torture techniques on their prisoners,” he said. “And yet it is clear from the testimony yesterday of General Hayden, that we have engaged in some of those own techniques.”

The U.N.’s torture investigator also responded to the CIA disclosure, calling on the Bush administration to give up its defense of enhanced interrogation methods such as waterboarding. Manfred Nowak told the Associated Press in Geneva that these techniques are totally unacceptable under international law.

By HOWARD MINTZ

SAN JOSE — Faced with the Bush administration’s argument that a lawsuit over alleged CIA torture flights could expose state secrets, a federal judge Tuesday appeared reluctant to allow the case to proceed against a San Jose-linked company accused of carrying out the trips on the government’s behalf.

U.S. District Judge James Ware said he would rule soon on the government’s attempt to block the lawsuit on national security grounds, but indicated that the state secret privilege could derail the American Civil Liberties Union’s lawsuit against Jeppesen International Trip Planning, a San Jose-based subsidiary of Boeing.

The ACLU brought the case last year on behalf of five alleged victims of the CIA’s so-called “extraordinary rendition” program, which civil rights lawyers say involves kidnapping terrorism suspects and secretly flying them to U.S.-run or foreign prisons for interrogation and torture.

The lawsuit alleges that Jeppesen knowingly participated in the CIA program for profit, and provided the flight planning and crew support for the flights. A former Jeppesen employee has submitted a declaration in the case saying that top Jeppesen officials openly discussed “torture flights” and their profitability.

The Bush administration intervened in the case several months ago, asserting that allowing the suit to proceed would reveal information that could jeopardize national security. The government has raised similar arguments in lawsuits against telecommunication companies accused of participating in domestic spying programs.

ACLU attorney Ben Wizner said after the hearing that it is crucial for the courts to address the legality of the CIA flight program.

“This is another attempt by the CIA to ensure that no judge, no place, at no time has a chance to rule on the legality of its interrogation and torture program,” he said.

Justice Department lawyers left the hearing without comment. But in court papers and in arguments before Ware, they warned the case “attempts to probe the most sensitive details of intelligence operations.”

The Bush administration has invoked the state secrets privilege with more regularity than past administrations, and it is difficult for federal judges to interfere when it is asserted. Ware, while conceding the privilege is strong, did express concern about preventing a case to proceed that involves civil liberties.

“It does seem to me that the duty I have is to walk the line between those interests,” the judge said during the hearing.

Ware’s ruling is expected to be appealed to the 9th U.S. Circuit Court of Appeals, which already is considering a similar issue in a lawsuit pending against AT&T over the government’s domestic surveillance program.

Human Rights Watch says CIA director’s remarks were ‘explicit admission of criminal activity’.By Jim Mannion

COPENHAGEN : Denmark will demand answers from the United States for the “unacceptable” use of a Danish airport in Greenland for secret CIA flights, the country’s foreign minister said on TV Wednesday.

According to a documentary called “The CIA’s Danish Connections”, the US agency secretly used Danish airspace and airports as transit for its airplanes.

Planes flying for fake corporations are suspected of transporting illegally-kidnapped terrorist suspects to Egypt, Jordan, Romania and Afghanistan, among other countries.

“There is evidence in this film which I had not seen before which shows that the Americans are using private airplanes as government airplanes,” Foreign Minister Per Stig Moeller told DR1 TV, the channel that broadcast the documentary.

“It is clear that that is unacceptable, and we are going to talk to the Americans about this,” he said.

“We can say to the Americans that they have made commitments (to respect international aviation conventions) which they are not apparently keeping. And we would dearly like explanations on this point.

“Neither Danish airspace nor the airspace of Greenland can be used in violation of these conventions,” he added.

Greenland is an offshore Danish territory.

Lars Emil Johansen, one of Greenland’s two representatives in the Danish parliament, demanded an in-depth investigation, saying he did not have confidence in the Danish government - a long-time ally of the United States - to shed any light on the affair.

Last year the centrist and leftwing parties in parliament demanded an independent inquiry into the CIA’s use of Danish airspace - but the liberal-conservative government and its far-right ally, the Danish People’s Party, refused the request.

Figures from the civil aviation authority in Greenland show that a third of 35 private planes operated on a CIA account and suspected of being involved in illegal rendition flights, landed at the Narsarsuaq airport in southern Greenland.

Between the end of 2001 and 2005 the CIA-operated planes carried out more than a thousand flights involving European airports, most of them logistical, but in the absence of any proper European control the only provisional figures come from an account published by the European Parliament rapporteur Claudio Fava last year. - AFP/ch

AFP

US Attorney General Michael Mukasey said Tuesday that waterboarding is not currently authorized for CIA interrogations, but said he would not answer questions from Congress on the technique’s legality in general.

Mukasey, who is to testify before the Senate Judiciary Committee on Wednesday, said that since becoming attorney general on November 9 he had been briefed on Central Intelligence Agency methods in its current interrogation programme.

“A limited set of methods is currently authorised for use in that programme. I have been authorized to disclose publicly that waterboarding is not among those methods,” Mukasey wrote in a letter to committee head Senator Patrick Leahy.

“Accordingly, waterboarding is not, and may not be used in the current programme,” he said.

But Mukasey, under pressure since his nomination last year to declare waterboarding, which simulates drowning, as illegal torture in all cases, would not say whether it has been used in the past.

He also suggested there could be circumstances where it might be allowable, and added that he would not answer questions from the committee about technique’s legality under US law in the absence of any specific current needs and conditions to discuss it.

By PHILIP SHENON and ERIC LICHTBLAU

The Justice Department lawyer who wrote a series of classified legal opinions in 2005 authorizing harsh C.I.A. interrogation techniques was renominated by the White House on Wednesday to a senior department post, a move that was seen as a snub to Senate Democrats who have long opposed his appointment.

The lawyer, Steven G. Bradbury, who has run the department’s Office of Legal Counsel without Senate confirmation for more than two years, has been repeatedly nominated to the job of assistant attorney general for legal counsel.

But the earlier nominations stalled in the Senate because of a dispute with the Justice Department over its failure to provide Congress with copies of legal opinions on a variety of terrorism issues. Under Senate rules that place a time limit on nominations, Mr. Bradbury’s earlier nominations expired.

Late last year, Democrats urged the White House to withdraw Mr. Bradbury’s name once and for all and find a new candidate for the post after it was disclosed in news reports in October that he was the author of classified memorandums that gave approval to harsh interrogation techniques, including head slapping, exposure to cold and simulated drowning, even when used in combination.

Mr. Bradbury’s memorandums were described by Democrats as an effort by the Bush administration to circumvent laws prohibiting torture and to undermine a public legal opinion issued by the Justice Department in 2004 that declared torture to be “abhorrent.”

The department and the White House have insisted that there are no contradictions between Mr. Bradbury’s legal opinions, which are still secret, and laws and rules governing interrogation techniques. A department spokesman, Peter A. Carr, said Wednesday that the department remained eager to see Mr. Bradbury confirmed.

“Steve Bradbury is a dedicated public servant and a superb lawyer, who has led with distinction the department’s Office of Legal Counsel,” Mr. Carr said. “He has proven invaluable to the department, and we will continue to work with the Senate to get him confirmed.”

Joe Shoemaker, a spokesman for Senator Richard J. Durbin of Illinois, the No. 2 Democrat in the Senate, said that by putting Mr. Bradbury’s name forward again as a nominee, “the president has thumbed his nose at Congress and chosen an individual who has been involved in authorizing some of the most controversial policies of this administration.”

Mr. Durbin led the previous efforts to reject Mr. Bradbury’s nomination and sits on the Judiciary Committee, which would have to approve the nomination.

Mr. Bradbury’s new nomination is almost certain to be a focus of questions next week when Attorney General Michael B. Mukasey is scheduled to appear before the Judiciary Committee for his first public hearing since his confirmation to the job in November.

Mr. Mukasey has suggested that he is a firm supporter of the Bush administration’s tough anti-terrorism policies, and his nomination was nearly derailed over criticism of his refusal to condemn as torture the interrogation practice known as waterboarding. He has since said he is studying its legality.

Mr. Durbin and the nine other Democrats on the Judiciary Committee joined in a letter on Wednesday asking Mr. Mukasey to clarify his views on waterboarding and other harsh interrogation techniques. The letter noted there had been “ample time for you to study this issue and reach a conclusion” and asked him to respond to the question: “Is the use of waterboarding as an interrogation technique illegal under U.S. law, including terrorism obligations?”

Also Wednesday, Vice President Dick Cheney offered a broad and impassioned defense of the administration’s antiterrorism efforts as he urged Congress to act quickly in reauthorizing broad wiretapping powers for the National Security Agency and in giving broad immunity to phone companies involved in the wiretaps.

The vice president, who was closely involved in the N.S.A.’s program of eavesdropping without warrants from its inception weeks after the Sept. 11, 2001, terrorist attacks, depicted the vote in the Senate as a matter of national security.

“It is a fact,” Mr. Cheney told a friendly audience at the Heritage Foundation, a conservative research group in Washington, “that the danger to our country remains very real, and that the terrorists are still determined to hit us.”

Democrats concede that they probably lack the votes to stop a White House-backed plan to give immunity to phone carriers that assisted in the N.S.A. program, and they urged President Bush anew on Wednesday to agree to a one-month extension in the law to allow time for a full debate.