State Secrets Upheld in Jeppesen Ruling, Will be Appealed to SCOTUS

Yesterday, the ACLU's team that was challenging a post-9/11 US program that flew terrorism suspects to secret prisons, suffered a major legal setback. Jeppesen, a Boeing subsidiary was contracted out by the CIA to conduct said flights. The ruling, which was handed down by the 9th district Court of Appeals, was divided 6-5 and narrowly upheld the state secrets doctrine used by the Bush Administration and now defended by the Obama DOJ. The case will undoubtedly be appealed to the SCOTUS, which in all likelihood will uphold the appeals' court's ruling.

In light of the recent developments Jeppesen case, I thought I'd share a couple of relevant links. In this first video from a panel hosted by the American Constitution Scoiety (ACS), Ben Wizner, the ACLU's attorney in the Jeppesen case, discusses state secrets and national security. This is back from 2008, but the points Wizner makes are the same as the ACLU made in Jeppesen

http://www.youtube.com/watch?v=FJpcq6VO7N4

Here are two other great clips of Wizner on MSNBC's Rachel Maddow Show:

http://www.msnbc.msn.com/id/26315908/ns/msnbc_tv-rachel_maddow_show/#29129616 - This one starts a little silly with a reenactment of a 9th circuit ruling on Jeppesen from 2009, but quickly gets serious as Wizner joins Maddow to discuss state secrets, national security and the details of the Jeppesen case. This clip is the only one I could find where Wizner specifically discusses Jeppesen.

http://www.msnbc.msn.com/id/26315908/ns/msnbc_tv-rachel_maddow_show/#31378360 - This clip has Wizner discussing the Bush Administration's state secrets doctrine. Wizner additionally provides proof of the use of State Secrets for political purposes.

Ben Wizner also came and spoke at Oxy in October 2009 about Jeppesen, the history of the state secrets doctrine, and ACLU involvement with other torture cases. I took extensive notes on the lecture/Q&A and posted them on my blog here: http://powertothepundits.blogspot.com/search/label/Ben%20Wizner

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.

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.

Spain is Prosecuting the Bush Torture Lawyers!

Spain is going to go ahead with its exhaustive prosecution of the Bush lawyers (including Alberto Gonzales!) who constructed the argument for torture:

Spain to proceed with torture prosecution of Bush lawyers: Report

While this is unlikely to have the sway that Holder's special investigator will have in what actually happens to these men, this investigation will actually examine the legality of the entire program. The Holder investigation will only look at instances where interrogators overstepped the already outrageous bounds of the Bibey and Yoo memos.

LGBT Rights, Gay Marriage and Obama

For the class I'm taking this semester, Politics 101, we have been asked to pick a specific area of public policy to focus on in our blogs. For me I'm going to pick gay rights. This is an issue close to my heart for personal reasons and because I was involved in the failed "No on 8" campaign here in California.

A common mistake made by many political observers is the conflation of LGBT (Lesbian, Gay, Bisexual, Transgender) rights with gay marriage. To merge these two concepts is fallacious, ignorant, and lazy. For most of the gay community and almost every gay rights activist, gay marriage is a long-term goal that is secondary to the more pressing problems of legal discrimination, workplace discrimination and homophobia in the media. That being said, the media and political discourse have made gay marriage the big scary proxy issue that stands in for any and all enfranchisement of LGBT individuals. As such it will be unavoidable as a chief topic of interest in this blog. Whenever the Obama administration, Congressional leaders or media pundits talk about gay marriage, they are speaking too about the larger concept of LGBT equality.

With the massive Republican defeat in all levels of government this election cycle and hence the reduced clout of social conservatives, there would appear to be hope for LGBT rights activists. President Obama stated in an open letter to LGBT Americans in February that:

I talked about the need to fight homophobia when I announced my candidacy for President, and I have been talking about LGBT equality to a number of groups during this campaign – from local LGBT activists to rural farmers to parishioners at Ebenezer Baptist Church in Atlanta, where Dr. Martin Luther King once preached. Just as important, I have been listening to what all Americans have to say. I will never compromise on my commitment to equal rights for all LGBT Americans. But neither will I close my ears to the voices of those who still need to be convinced. That is the work we must do to move forward together. (http://www.proudparenting.com/node/1321)

Needless to say, there is ample reason to feel that LGBT rights will see great progress in the Obama administration. The Bush presidency certainly didn't set the bar very high. In 2004 President Bush called for an anti-gay marriage amendment stating:

"Today I call upon the Congress to promptly pass, and to send to the states for ratification, an amendment to our Constitution defining and protecting marriage as a union of man and woman as husband and wife." (February 24, 2004, http://en.wikiquote.org/wiki/George_W._Bush)

The tides of civil rights are changing. I hope as many LGBT activists do that a new administration means more federal action for LGBT civil rights not against them. The hope is tempered by political reality. Nobody believes that LGBT rights are near the top of President Obama's agenda right now. With constant pressure from LGBT activists and the LGBT community though, I believe that the promises of "full equality in their [LGBT] family and adoption laws" (http://www.proudparenting.com/node/1321) that President Obama promised in his campaign could be realized within his first time. With momentum on our side, the movement for LGBT equality just might come to the White House.

DeMint and the Freedom Fighters

I don't know if these extremists could sound more like Big Brother if they tried. I mean what's next, loyalty oaths?

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Video Courtesy of the "Rachel Maddow Show", 1-22-09.

You'd think that the far right reactionaries in the Republican party would attempt to remain relevant by toning down their rhetoric. Former President (!) GW Bush was only to happy to use the divisive us vs. them rhetoric that Sen. DeMint so classily wields in this video. Maybe he didn't get the memo, but that's not such a good way to become relevant in the Obama administration. As Obama himself reminded Senate Republicans: he won. There's a reason for that.

America is not crying out for more Reactionary faux-patriotic rhetoric: we voted that out of office. The man who championed and put in the spotlight the "freedom fighter" McCarthyist rhetoric left office three days ago with a 22% approval rating, the lowest ever excepting Nixon. Let the long slide into irrelevavence continue for Demint and his ilk. The reasonable Republicans will moderate themselves for the new administration and shifting public opinion. Demint and his fellow "freedom fighters" are in for a rude awakening.