Supreme Court Rejects Appeals Court Ruling Ordering Release of Torture Photos

There is another frustrating setback in the torture photos saga that started on May 13th when the Obama administration reversed its decision to release a substantial number of new Abu Ghraib photos to the public. As reported today by the New York Times, the Supreme Court nullified the 2008 ruling by the Manhattan Second Circuit Court of Appeals that ordered the photos be released to the public. The Supreme Court has today kicked the ruling back to the Appeals Court, asking, as the Times put it, that it "give 'further consideration' to the issue in light of a Congressional action authorizing the Defense Department to keep the pictures from the public."

As a constitutional law dork, I have to ask why the Supreme Court would pay any heed to Congressional legislation in its rulings. Supreme Court cases deal by definition with matters of strictly constitutional law. If our system of checks and balances is to be believed, as articulated in Marbury v. Madison, it is the within the purview of the Court to curb Congressional action, not vice versa. The Court since its inception was meant to stand as an antimajoritarian counterweight to the executive and legislative branches. It is the Supreme Court's most basic duty in this case to authoritatively decide whether or not it is constitutional to withhold the torture photos as so-called "state secrets". If the Court is unwilling to fulfill its basic constitutional obligation to decide cases on the basis of constitutional law alone in this case, it should have not granted cert. to the case. Rather than subvert their own constitutional role, the Supreme Court could have simply let the Appeals Court ruling stand.

Sadly, the constitution sadly doesn't seem to be the center of this debate. My fingers are crossed that the hard work of the ACLU and their allies will be sufficient enough to convince the Appeals Court once again that the constitution still matters. Maybe then will we get the photos, and with them another step towards truth, justice, and accountability.

ACLU FOIA Request Reveals Even More Bush Administration Involvement in Torture

In a press release issued today, the ACLU announced that it has obtained an index of important new CIA documents through a FOIA request. This documents in this index mostly relate to the CIA's 2005 destruction of videotapes that showed vicious torture at CIA black sites. The reason we only have an index rather than the actual documents themselves is, you guessed it, national security. One more example of so-called "state secrets" used as an excuse to cover the administration's butt.

To quote the ACLU's press release:

The chronology outlined in this new index supplies further evidence that the CIA destroyed the videotapes in order to prevent the public from learning the full scope of the CIA’s torture program, and further evidence that the Bush White House was on notice that the CIA intended to destroy the tapes" said Jameel Jaffer, Director of the ACLU National Security Project. "We continue to believe that the CIA’s destruction of the tapes constituted contempt of court, and we intend to press that case over the next few weeks

Listed in the index released last week are a November 8, 2005 cable from a CIA field office to CIA headquarters requesting permission to destroy the 92 tapes and a November 9, 2005 cable confirming their destruction. The precise date of destruction confirms that the tapes were destroyed immediately after the Washington Post reported the existence of the CIA black sites and the New York Times reported that the CIA Inspector General had questioned the legality of the agency’s torture program.

The index also lists the earliest known record of White House participation in discussions about destroying the tapes – an e-mail dated February 22, 2003 revealing that CIA officials met with Bush administration officials to discuss how the agency should respond to a letter from Representative Jane Harman (D-CA) advising the agency not to destroy the tapes. While it was known previously that the White House participated in discussions about the disposition of the tapes, this is the earliest record to date of any such discussions.

I suppose at this point that new knowledge about the complicity and guilt of the Bush administration in the CIA's torture program is not surprising. As much as George Tenet and the Bush Administration attempted to pass the buck to one another, they are both guilty for the human rights atrocities committed at CIA black sites.

Indeed the transparency of the "state secrets" lie is even more apparent now. As Ben Wizner pointed out in his Oxy Q+A session, Secrecy and abuse are cyclical: State secrecy sets the stage for torture. Torture creates the need for state secrecy, etc. etc. Here the political nature of the "state secrets" claim is more transparent than ever: the tapes were destroyed in response to the Washington Post's discovery of them and the CIA Inspector General's questioning of the program's legality. Rather than serve a national security interest, the "state secrets" defense being used now to withhold the documents regarding the videotapes is blatantly political. The political fallout of documents proving that the Bush Administration's explicitly authorized the destruction of the tapes in response to the very real possibility that they could be held accountable for them would be immense. The CIA knows it, Obama knows it, and congress knows it.

With evidence as damning as this, it's not hard to see why Republican congressmen have tried so hard to block torture accountability. The extremely limited evidence is damning enough without the no-doubt gruesome details of the documents themselves.

Lawrence O'Donnell and the Denial of Impact

Last night, MSNBC contributor and political analyst Lawrence O'Donnell came and spoke to our torture class. here at Oxy Most of the material he covered was basic media studies knowledge: the media has a significant liberal bias, the 24-hour news cycle, investigative journalism is in decline and traditional news media sources are dying off. There were a couple interesting points. First, that Dick Cheney was trying to receive some kind of national support for torture by making it a partisan issue. In part he succeeded, as evidenced by the many Republican torture apologists in congress. Second, he did acknowledge that giving a platform to Cheney and other torture apologists for the sake of back-and-forth talk show confrontation does legitimize their position. This knee-jerk impulse to find two sides to every issue does create a serious moral quandary for the media by lending legitimacy to defenders of the most heinous crimes against humanity.

Though Mr. O'Donnell did a fantastic job of avoiding saying anything substantive or newsworthy, I did take umbrage at his assertion that media contributors like him don't make a significant impact in public perception of issues. While it is true that viewership for news shows has declined dramatically, televised media as a whole still plays an important role in establishing the national rhetoric surrounding political issues. Mr. O'Donnell complained both about the decline of investigative journalism and the rise of sensationalist media outlets, I wish he'd discussed the effect of their intersection. As has been widely studied in the discipline of media analysis, the decrease in editorial filtering and independent investigative journalism has created a media echo chamber of sorts. In this echo chamber, news stories and particularly soundbite-worthy statements ricochet around the various mass media outlets with little restraint. Mr. O'Donnell argues that his presence on a cable news outlet like MSNBC is fundamentally inconsequential because the viewers watching shows on cable networks "already have their minds made up". Be that as it may, outlets like MSNBC and FOX allow for the introduction of stories and frames into the newscycle that would not otherwise appear in mainstream media.

As exciting as it was to have Mr. O'Donnell join us here at Oxy, I was disappointed that he believed so strongly in the futility of his occupation. I sincerely hope that Mr. O'Donnell uses his powerful position to speak truth to power and establish progressive media narratives. Only in doing so can we counter the pervasive conservative torture apologism narrative that rears its ugly head in nearly every discussion of torture in the media.

Return to the Rule of Law?

Breaking News: Khalid Sheikh Mohammed and 4 other men accused of involvement in the 9/11 attacks will finally be put on trial in NYC. Unfortunately, it was also announced that 5 other men will face military commissions. Regardless, though this is specifically being politically framed as bringing the 9/11 perpetrators to justice, it is a massive step in favor of law and order. President Obama is finally fulfilling President Bush's promise to bring the accused 9/11 conspirators to justice. This is a huge political risk for President Obama. If successful, the trials will make him a man of justice, and if plagued by complications from US-committed torture could be a major political albatross.

The GOP of course, is outraged. Surprise, surprise. Some pretty crazy things are being said by individuals such as Sen. Jeff Sessions and Sen. John McCain, but the crown jewel of crazy goes to former NYC Rudy Giuliani, who said on Fox that "We think they're criminals! These are soldiers in a war against us; and the rules of war should apply." Apparently the new chapter in Republican revisionist history is that we have treated these men as "prisoners of war" and should continue to do so. If they're POWs, the Geneva Conventions apply. Are you and the Republican party willing to accept that Mr. Giuliani? The hypocrisy of these men is astounding, as they flood the media with the message that these accused terrorists are POWs and hence can't be tried in civilian court. A reminder to Mr. Giuliani, Sens. McCain and Sessions and their ilk: it was you who supported the declassification of these men as POWs and the creation of the "Geneva Convention-immune" classification of "enemy combatant". You cannot call them POWs again out of convenience after 8 years of illegal detention, torture and Geneva Convention violations. That is revisionist history and blatantly deceptive.

Additionally, the Republicans seem to be arguing that the US courts are incapable of dealing with terrorism cases. As Rachel Maddow pointed out tonight, this is an absurd proposition. We've imprisoned Charles Manson, the "blind sheik", the "unabomber", the "shoe bomber" and even another 9/11 conspirator through the federal courts. This, as Maddow points out, is sheer cowardice.

I would go further than Maddow does though and outline the political implications of these proceedings for Republicans. I believe that the Republicans do have legitimate reasons to be afraid, though not for the safety of the American people. Rather, the Republicans are all too aware that these trials for the first time will allow the Guantanomo detainees to testify in a real American court about the torture they were subjected to at the hands of the US. No longer will the culpability of the Bush White House's torture program be shielded by a censor and thick glass, as Wizner described it as being in the Gitmo military tribunals. If the details of detainees gruesome torture at the hands of US operatives becomes public, Republicans could be forced to answer for the Bush administration's actions. I'd be panicking if I were them too.

For this blog, the timing of this decision couldn't be better. In my recent posts on Ben Wizner's talks, I quoted him as saying that "[state] secrecy is the source of rot". If AG Holder is serious about these prosecutions, and the accused 9/11 conspirators are only the first of many to face constitutional justice, our long national nightmare of secret torture may finally come to an end. That end is still a long way off, but today marks a historic first step. Friday night is when the most contentious policies are always announced (nobody listens to the news Friday night. Except me.), but this story will hopefully dominate the news for a long time.

Further Viewing:

On the decision to put the 5 men on trial and Republican outrage:

Visit msnbc.com for Breaking News, World News, and News about the Economy

On the challenges facing the court and a possible referendum on the Bush torture policy:

Visit msnbc.com for Breaking News, World News, and News about the Economy

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.