Ben Wizner pt. 3: Q+A Session (Oct. 23)

In the Oct. 23rd conversation our class on torture had with ACLU attorney Ben Wizner, we discussed in greater detail and specificity the legal issues regarding torture. We covered a large range of topics, but with an emphasis on state secrets and the classification of the so-called "enemy combatant". Here are some of the gems of knowledge Wizner shared with us:

On State Secrets:

• In relation to torture: "secrecy is the source of rot".
  

• Secrecy and abuse are cyclical: State secrecy sets the stage for torture. Torture creates the need for state secrecy. Etc. etc.

• Though there are legitimate state secrets (e.g. military technology in wartime), secrecy must be balanced with the need for an open government of and for the people. State secrets have been abused since their very inception, as evidenced by the pentagon papers. The pentagon papers were held secret on the grounds of national security when ultimately it was revealed that they were kept secret because they were a political liability. Governments have an irresestible temptation to use state secrets for political ends, and this is where the courts must intervene.

On FOIA:

• Between 2000-2006, FOIA was the only oversight of the Presidency. The Republican controlled congress did not perform it's constitutional duty.
  

On the Gitmo Military Tribunals:

• "Secret people, secret laws, secret proceedings". Enemy combatants, being tried under "state secrets protected" secret laws, and the few human rights representatives present could only watch through a soundproof screen. Indeed, they had a censor at the ready to bleep out anything a detainee could say regarding his treatment in Gitmo.

• The tribunals, according to Wizner, were "not about keeping information from terrorists, but about keeping information from the American people.

• The purpose of the courtroom was to prevent testimony about torture from leaving it. The detainees were allowed to talk about martyrdom and other purported evils of the US, and indeed even call for direct assaults on the nation. But when they talked about their treatment in Gitmo, they were censored. In other words, they were allowed to call for assaults on the US, but it was far more important that evidence of US torture be kept secret.

On the So-Called "War on Terror":

• Bush: the "War on Terror" is not a normal war. Enemy combatants are not normal enemies. There are no rules for enemy combatants beyond what we make up. Even individuals acquitted by the Bush-created tribunals remained enemy combatants.
  

• Where Bush argues no laws apply to enemy combatants, as they are a new class of enemy, Wizner argues that they have additional protections. They are both private citizens and enemy fighters. Both criminal laws and rules of combat (e.g. Geneva Conventions) apply.

Question and Answer:

• Wizner opposes a truth commission. Such a commission assumes we all agree that torture occurred. As congressional Republicans exemplify, we do not.

• The rule of law is diminished by the 24-hour news cycle. He-said she-said partisan standoffs always assume two sides to any issue. In other words, the mass media legitimizes fringe believers in the usefulness of torture.

• Wizner hopes that congress will pass legislation defining, and hopefully limiting, the breadth of executive "state secrets".

This is the final installment in the Wizner Talks! Here are the earlier installments: Part 1 and Part 2 .

Ben Wizner pt. 2: Q+A Session (Oct. 22)

In his question and answer session to his Oct. 22 lecture, Ben Wizner addressed much of the audience's lingering confusion surrounding the US' torture program. Here are a few of the points Wizner made:

• President George W. Bush used "state secrets privilege" in an unprecedented manner. Rather than use the provision to withhold individual pieces of evidence at the case-be-case discretion of the judge, Bush used the provision to throw out torture cases before they even got to court. Rather than have to prove the "secret" nature of the individual evidence, the Bush admin. claimed blanket overriding secrecy and denied constitutional due process to the US' torture victims. This practice still continues successfully today in the Obama administration.

• Wizner wholeheartedly denounced Obama's decision to keep many torture photos secret- photos he'd previously promised to release. Obama's argument, no doubt inspired by the generals and his military advisers, was that the release of the photos would jeopardize American soldiers. The underlying rationale, as Wizner pointed out, was the idea that the more international outrage the photos' release would cause, the greater the need to keep them secret. To quote Wizner, this is an "ass-backwards legal philosophy". State secrets should not be applied simply because the relevant material is more outrageous. The law doesn't protect things more when they are more repulsive.

• Wizner is a strong advocate for targeting the publishers and commissioners of the OLC memos in particular because it will be extremely difficult to prosecute others involved. The DOJ would have an extremely difficult time prosecuting "lower-downs" who followed the DOJ's own directives during the Bush years. Conversely, it could be extremely difficult to prove culpability among high level Bush cabinet officials unless it can be proven that they specifically commissioned the memos. Targeting the authors and commissioners is perhaps the most effective path towards legally repudiating torture.

• The media was another topic Wizner addressed in the Q+A. Wizner criticized the confrontational punditocracy that takes place on most mass media today. Every issue, he rightly argues, is oppositionalized, with one pundit arguing one position, and another pundit the other. Wizner contends that it is outrageous that media outlets give extremist wingnuts like Dick Cheney de facto equal legitimacy in the rhetoric of torture by giving their outspoken perspective equal airtime.

• Wizner expressed extreme doubt that members of congress would be held accountable for their actions/inaction regarding torture. At the same time, he didn't close the door on future legal action should new evidence of congressional misconduct arise

Check back later this week for the third and final installment in the Wizner talks, where I discuss his intimate meeting with my Torture class!

See part 1 of the Wizner talks here.

Did The CIA Lie to Nancy Pelosi?

According to a report yesterday from The Hill, Nancy Pelosi's claim that she and other congressmen/women were mislead on multiple occasions by the CIA could be bolstered by an ongoing House Intelligence Committee investigation. The investigation was spurred by the new CIA Director Leon Panetta's admission that several CIA officials didn't notify congress about a program to assassinate al Qaeda leaders. Nancy Pelosi has been under constant assault from Republicans since she made the claim in May that: "We were told explicitly that waterboarding was not being used... They [the CIA] misled us all the time".

Now, House Intelligence subcommittee Chairwoman Jan Schakowsky (D-Ill.) is saying that the Panetta admission is just one of five instances of a critical breakdown in communications between the CIA and congress. Said Schakowsy:

There have been many instances where we’ve come to a committee hearing, after having read in the paper of something that should have been notified to us, where it’s followed up my mea culpas by the intelligence community... And examples where the committee actually has been lied to.

Apparently, the instances of omission, misleading and outright lying to congress are not limited to torture techniques. Of further interest is that Dick Cheney apparently ordered the CIA not to notify congress about the al Queda assassination program and potentially other programs.

Conspiracy to deceive congress is criminal. I hope that serious investigation into the CIA and Dick Cheney comes of this, though I'm not holding my breath. Expect more from this fascinating story as the House Intelligence subcommittee's investigation continues. In the meantime, enjoy this lovely clip of "Fox and Friends" getting the story on Nancy Pelosi's May assertion really, really wrong:



Got to love the torture apologia coming out of the guest's mouth. "We were all scared after 9/11" is the worst excuse out there. And then he defends Bush's torture record by asserting that Bush won in a "relative landslide" in 2004 (Reminder: these were the election results. Not impressive for an incumbent.). I suppose any electoral victory could be called a landslide in comparison to the 2000 election, but that's just intellectually dishonest. Then again, it's "Fox & Friends"

Torture Apologia Chart

Thanks to Vagabond Scholar for this awesome flowchart on torture apologia. This ties in well with my post on Ben Wizner's lecture which discussed the mutually exclusive frameworks used by the Bush administration to characterize torture.

Ben Wizner pt. 1: The Lecture (Oct. 22)

On October 22nd and 23rd, we here at Occidental College were lucky enough to have ACLU attorney Ben Wizner come speak. Ben Wizner joined the ACLU directly before the September 11th attacks, and has been working largely on cases regarding torture and Guantanamo bay since the beginning of the so-called "war on terror". I will be splitting up my summary and analysis of the two talks into three posts, one for his Oct. 22nd lecture, one for his Oct. 22nd Q+A session, and one for his Oct. 23rd conversation with the Torture class.

On the 22nd, I came to the lecture hall expecting minimal turnout. From my experience as an RA, I know that anything less than an all-out advertising blitz usually results in low turnout. Thankfully, this was not the case. The hall was packed, and I was glad to know all the questions for Mr. Wizner would not be my own.

The beginning of Mr. Wizner's lecture was spent alternating between reading John Yoo's infamous "you would like" torture memo and reading the Red Cross testimony of Abu Zubaydah. Wizner provided a striking contrast between all of the forms of torture Yoo authorized in the memo with the actual memories and suffering endured by Abu Zubaydah. Part of what was truly horrifying about hearing the two pieces together was realizing how sterile and deceptive Yoo's methodical descriptions of the techniques he authorized were in comparison to the deeds that were actually committed.

To quote John Yoo's 2002 memo, "You would like to place Zubaydah in a cramped confinement box with an insect. You have informed us that he appears to have a fear of insects... As we understand it, you plan to inform Zubaydah that you are going to place a stinging insect into the box, but you will actually place a harmless insect in the box, such as a caterpillar. If you do so, to ensure you are outside the predicate death requirement, you must inform him that the insects will not have a sting that would produce death or severe pain. If, however, you were to place the insect in the box without informing him that you are doing so, you should not affirmatively lead him to believe that any insect is present which has a sting that could produce severe pain or suffering or even cause his death...". The fact that this extremely Orwellian authorization failed in any way to capture the horrors of Zubaydah's experience is testament to the true nature of the memos. The torture endured by Zubaydah, by insects among other things, was far worse than even the disturbing "guidelines" established in the memo.

Wizner noted that Yoo's and the other torture memos were not truly legitimate legal opinons for the supposedly impartial White House Office of Legal Counsel, but rather a defense against later retribution. Arguing that the Bush administration knew the illegality of its actions, Wizner said the memos were "an effort to protect [the administration] from prosecution, from universally recognized war crimes". Wizner used the example of the "golden shield" provided by the OLC: if individuals were following OLC guidelines for legality and constitutionality, they would be extremely difficult to prosecute. These secret laws, guidelines and legal opinions not only gave authorization for the military to use torture, but first and foremost provided protection for administration and military officials from prosecution. For this reason, Wizner argues it is critical to directly challenge the memo authors, like Yoo and Bibey, and those who commissioned them in the Bush administration.

One of the problems Wizner said was most troublesome is how there has been no debate surrounding torture, only narratives. By discovering our torture program in a piecemeal fashion, Wizner argued that the Bush administration was able to frame torture as an acceptable national security necessity. There were two competing and mutually exclusive narratives said Wizner, a "bad apples" frame in which America does not torture but a few "bad apples" do, and the "ticking time bomb" narrative wherein torture is a necessity. As Wizner pointed out, these two frames are abusrdly opposed: one articulates torture as a moral wrong used only by a few moral degenerates (as the Bush administration characterized the Guantanamo Bay torture), while the other argues that torture is both morally correct and necessary for national security. These two narratives existed at the same time, and unfortunately never caused a media debate or public outrage.

In conclusion, Wizner said that the only way to "look forward" (in Obama's words) is by addressing the omnipresent specter of our recent past. For Wizner, the only way to restore the United States' reputation is if we actively uphold our international treaties and conventions surrounding torture. This means, in other words, not attempting to avoid prosecutions of Bush administration officials out fear that it will grind Washington politics to a halt. Wizner argued that it was this exclusion of certain politicians from legal retribution politicizes the legal system.

I couldn't agree more: not prosecuting obvious war crimes ruins our international credibility, makes us hypocrites on issues of morality, allows other countries to use us an excuse to torture, and establishes that political power can put you outside the reach of the law. Nothing could be more antithetical to what I perceive to be the promise of the United states. Moving on means facing our collective demons and showing to the world that we can be its moral compass. That is true leadership. After the Bush years, that would be change I can believe in.

FOIA Limited Once Again

It appears unfortunately that the DOD can now exempt torture testimony from FOIA requests. The testimonies that Gitmo inmates gave before the military tribunals is being guarded on the grounds that it protects “intelligence sources and methods” and might aid enemy "propaganda". I, like the ACLU, call BS on that one. The most important eyewitnesses of the US torture program, the torturees themselves, are still being censored by the DOD and the CIA.

Congressional leaders agree to try Gitmo detainees in US

For the first time since Guantanamo Bay's establishment as a detainment facility by George W. Bush in 2002, congressional leaders have agreeed to try the detained in the United States. This is a landmark decision that is a dramatic reversal of the unconstitutional system of military tribunals currently being implemented in Guantanamo Bay. This is not to say that this "compromise", as the NY Times calls it, is not highly problematic.

I have several questions I'd like to ask about the agreement in question:

1. Does this mean the prisoners will be granted habeus corpus rights? Can they go to trial in the US when we haven't even informed of their alleged crime?

2. The article states: "In addition, it was not clear whether the compromise would permit detainees to be brought to the United States for indefinite detention. An undetermined number of detainees are deemed too dangerous to release but cannot be put on trial because there is insufficient evidence against them". Is there the possibility that we will suspend habeus corpus on US soil? The entire Bush "legal argument", as articulated and ultimately rejected in Boumediene v. Bush, was that the constitution's 4th amendment protections don't apply on foreign soil. This appears to leave open the possibility that we will simply continue to detain prisoners whom we don't have sufficient evidence to convict. Does this compromise intend to only send suspected "dangerous" inmates to trial if we are sure of conviction? Last time I checked, that's not how the criminal justice system works.

3. Why would the agreement "forbid the Obama administration from releasing detainees in the United States"? If they are found innocent in the criminal justice system, aren't we obligated to release them? Where do we send them? To their home countries to face persecution and suspicion (or in the case of the Chinese Uighurs, death)? This seems to follow the same fear-inspired logic that caused congress to forbid Gitmo detainees from being held in US maximum security prisons. Nobody has ever escaped from a maximum security prison. Not the Unabomber, not Charles Manson,and certainly no terrorists. If our system of laws deems these detainees guilty, why can they not be held in our extremely effective high-security prisons? If they are innocent, what right have we not to release them immediately?