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

My Presentation to the Torture Class

Warning: High Emotional Content.

There were many subjects I considered discussing for my presentation. I considered showing media clips, or discussing the arc of my blog (thanks to those of you that followed by the way). Ultimately what I decided to discuss however is disability. If you’ll allow me, I’d like to begin with a personal story and then tie it in to the course and the creation of the other.

This may seem like a strange topic considering that I personally am not disabled. Disability, however, has shaped my life. When I was five, my father was in a wheel chair for a year when he had a cancerous back tumor removed. The chemotherapy he had following the removal caused a rare condition to occur wherein the nerves in his legs no longer correctly transmit motor information, severely limiting their use to this day. When I was nine my mother’s auto-immune condition, Sjögren’s Syndrome (which is akin to Lupus or Coeliac disease), drastically worsened. To this day she is constantly nauseous, suffers from daily migraines, is severely limited physically and is only active for 8 hours a day. Today, as they have been for most of my childhood, my parents are severely physically disabled. In other words, I grew up in a disabled household.

My parents’ disabilities affected me directly in many ways. More important in defining who I am today though is how their disabilities affected them. Unlike my younger brother, I still have strong memories of when my parents were able-bodied. My mother in particular was an incredibly dedicated worker, administrating family planning clinics for Contra Costa County, pulling long hours and still finding time to spend with my brother and me. Even when a drunk driver ran her down while she was on a bike, crushing one of her spinal disks, she persevered. When her Sjögren’s Syndrome flared up, everything changed. My mother’s seemingly unstoppable lifelong effort to succeed in the workplace and in the community was crushed within the course of a year. Her work was not all that changed. My mother to this day cannot do lengthy social engagements or even meet with friends outside our house without great physical cost. As a result of this, most of her long-term friendships buckled and collapsed, and many in her family alienated. My mother’s Sjögren’s Syndrome will be with her as long as she lives, and its many burdens along with it.

Despite the amount of suffering my mother endures and the loss of her career, there is an additional layer of unnecessary suffering that greatly compounds her hardships. American society has, to put it mildly, a disturbing view of physical disability. For those who we acknowledge as “legitimately” disabled we have developed limited accommodations but by and large have not committed ourselves to bringing about true equal opportunity. One look at Occidental’s campus will tell you that the school simply wasn’t designed and largely hasn’t been updated to accommodate the basic needs of the physically disabled. Sure there are methods whereby the wheelchair-bound and those with reduced mobility can get into Johnson and Fowler, but can you imagine trying to get into Weingart? Or trying to get food at the Marketplace? Or live for that matter in any of the dorms? Despite its debatable “bet intentions”, Oxy operates out a standard playbook for American social thought: human beings when “normal” are physically “well”, and that additional “accommodations” are desirable but not urgent. I’ll return to this standard of normalcy and wellness in a minute.

To go back to the subject of my mother, she is not one of those I described above. Though her disability is crippling and prevents her from engaging in most activities the “well” (myself included) enjoy, it is not immediately visible to the eye like a wheelchair or a limp would be. Without a physical reminder of her disability, the social construction of “wellness as normalcy” comes to the surface in an ugly fashion. Again and again I see my mother’s friends, peers, acquaintances and even her own family question whether she was “really sick”. Some say it outright, calling her a “hypochondriac”, and inventing/perpetuating her own maladies. Others are, or grow to be more subtle, asking over and over again why my mother wasn’t investing “enough” time in their relationship, or why she couldn’t pick up their kids from school, or why she couldn’t just “overcome” and “be stronger than her sickness” for just one event that they wanted her to do. No matter how many times my mother explains her condition, and indeed demonstrates how limiting it is in her daily life, few truly believe her. With no job and very few friends and family that acknowledge the nature of her life, my mother has no choice but just to live.

This denial of illness and elevation of ability-based normalcy is from my life experience rooted in fear. As my mother’s friends and family look her in the eye and tell her she can overcome her illness if she sets her mind to it they are afraid. Afraid that when they look at her, what looks back is their own mortality. Afraid that the strength they see within her would not be in them were they as ill as she. Western culture is profoundly afraid of death and even more so, I’d argue, loss of our faculties. A post-enlightenment worldview has given the West an obsession with rational observation and our supposed ability to control our own lives. What is more American than the idea that anyone can pull themselves up by their bootstraps? If someone is not satisfied with their life, shouldn’t they just try harder? If you’ve gotten to where you are in life through hard work, isn’t it insulting when someone says that they are stuck by their circumstances?

This brings me back to our coursework and the discourse of torture. In the very beginning of the course, Elaine Scarry made the claim that the pain of others is fundamentally inaccessible. As we progressed through the course, we saw this view reflected again and again in Western metaphysics. Only in some of our most recently examined theorists, like Levinas and Derrida have we seen an attempt to break this tradition and de-alienate the suffering of the other. These more recent challenges to the traditional framework are just that however: challenges to an accepted reality. This standard conception of identity and the human experience as internal and isolated still governs our society today.

For the tortured and the disabled alike, there is a narrative of conflict between rational self-control and pain. The tortured, when the act is committed, are as we discussed “reduced to animals” and “rendered sub-human” by their loss of self (as Scarry puts it) and inability to overcome their pain through rational thought. When I read this at the beginning of the semester, I wondered how this fundamentally differs from the pain of the unwell or disabled.

While for one the pain is externally inflicted and the other the pain is internal, there is a parallel inherent in the two groups of people in the Western tradition. Neither group has control over their pain, nor can exert the rational faculty that defines humanity in Western metaphysics to stop it. For these two groups that should elicit the most sympathy from us, sympathy is impossible (Scarry). Ingrained in our thinking is the fundamental internalization of the pain of the “other” and their own obligation as humans to overcome their adversity through rationality and re-establishment of a “well” self. As Du Bois put it, the torturee is just “a body”. Asad says that torture in the ascetic tradition releases the soul from the body. Like the tortured, the disabled are reduced to the limitations of their body and hence have a damaged “self” from their inability to exert rational control.

In perhaps an even more frightening manner, this Western metaphysical tradition compounds with American exceptionalism, the American dream, and the neo-liberal tradition. Ingrained in this tradition, as I mentioned earlier is the expectation that everyone can pull themselves up by their bootstraps and be a productive member of society. External barriers in this tradition are non-existent: the expectation is that whether you succeed or not depends on whether you have the willpower and personal drive to achieve what is offered to everyone equally. The tortured and the disabled are similarly demoted in the eyes of society by their inability to fulfill their Hobbesian social contract. The torture have allegedly already exited said contract for their alleged crimes, and the disabled face an inherent barrier that prevents them from contributing as “productive” members of human society. By “refusing” to use their rational control to fulfill their contract with society, both groups have failed to live up to the supposedly barrier-less American dream.

I know that significantly more biopolitical analysis is needed here, and that this is only an initial exploration, but it was important to me to share with you how this class has made me reflect on my own life and the lives around me. Thank you.

David Adler: The Q + A

After David Adler's Dec. 3rd lecture to Oxy's "American Presidency", which I blogged about last week, he had a Q+A session. I also got the chance to ask him several questions that focused more directly on torture and the constitution.

Here are some of the questions I asked and the responses I received from Prof. Adler. Because I did not have a recording device, I will be paraphrasing Prof. Adler's responses:

Q: In the last several months, the Obama administration has seen the resignation of several high profile officials who were involved with Guantanamo and Torture policy. The list includes such high profile individuals as Greg Craig (White House Counsel), Phil Carter (Detainee affairs policy appointee), and David Ogden (Deputy Attorney General). Do you think that this massive turnover in torture policymakers is indicative of a disagreement on torture in the Obama administration?

A: Adler does believe there is significant disagreement w/in the Obama admin. He believes that there is a significant push-pull between the Obama administration's desire to follow his campaign promises and Constitutional principles and political pressure from the military and party power brokers not to tackle the issue of torture. He believes Obama will eventually close Guantanamo Bay.

Q: Congress recently wrote legislation allowing the Defense Secretary to withhold photos of US-committed torture during the Bush years. The Supreme Court used this legislation as the basis to advise the 2nd District Court of Appealsto reconsider siding with the ACLU's FOIA suit. Is it unusual for the Supreme Court to rely on congressional legislation to make its legal decisions? Also, what effect does this have on the breadth and power of FOIA.

A: Adler replied that no, it's not unusual for the Court to use congressional legislation rather than just the Constitution and legal precedent. He also asserted that FOIA lost a massive amount of clout under the Bush administration, and he's hopeful that it will return to its previous prominence with the Obama administration's promises for open government.

Q: Why can Obama increase troop levels? Isn't that congress' role?

A: Adler agreed with me that this should be congress' call to make. Because of congress' ceding of war powers to the Presidency and the executive's role as the sole organ of foreign policy has resulted in the movement of war powers from the legislature to the executive.

Q: As a potential US Senate candidate and a Constitutional scholar, I have to ask you abut the institution of the Senate itself. Considering the filibuster fiasco and other undemocratic elements (e.g. unequal representation of states) of the Senate, do you think fundamental changes nead to be made to the institution?

A: Adler believes that while the filibuster may have been useful during the civil rights era, it no longer serves a valid purpose. He would advocate the filibusters' elimination if elected. He doesn't believe that the Senate needs to be eradicated in the name of democracy.


And 3 questions from the class:

Q: If not Iraq, what will it take to get the American public to embrace a Constitutional culture?

A: Adler responded that he didn't know, but re-emphasized education.

Q: Is Obama surging in Afghanistan due to political pressure.

A: Adler has immense respect for Obama's character and thinks he makes extremely deliberative decisions that are not motivated by concerns for his legacy. Though he doesn't agree with the Afghanistan surge, he thinks that Obama is doing what he perceives to be the best and most rational course of action within a very poor set of circumstances.

Q: If you run for Senate, will you devote precious campaign time and resources to making a return to constitutional governance a major campaign cornerstone?

A: Adler reasserted that it will be a top priority for him both on the campaign trail and off.


Thanks a million to Professor Adler for answering so many of my questions and giving his time to our class! I wish him the best of luck, and know he will make an excellent Senator from the great state of Idaho.

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.

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.

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.

In Case You Still Thought Torture Worked

Though I believe that the most important debate surrounding the US torture program is the moral one, the fact remains that torture simply doesn't work. The Scientific American reports today that yet another study has come out proving that torture is counterproductive to the acquisition of meaningful information.

To quote the Scientific American article:

Proponents claim that waterboarding's effective because prisoners will tell the truth to make the interrogation stop. But O’Mara says that’s not supported by scientific evidence. Harsh interrogation doesn’t motivate prisoners to tell the truth. It motivates them to talk. Because while they’re talking they’re not being waterboarded. But that doesn’t mean that what they say is true.

What’s more, prolonged extreme stress impairs memory retrieval. American Special Ops soldiers have been shown to have trouble recalling things they’d learned before being subjected to food- or sleep-deprivation as part of their training. That’s because stress hormones can compromise brain activity, especially in regions involved in memory.

The real bombshell here is that torture in not merely inneffective but that it actually impairs memory. Despite this and many, many, concurring studies, we still get lots of opinion makers leaving us such intellectual treatises as this beauty of an editorial. Remind me exactly why torture is worth the damage to our moral fiber and international reputation?

You can read the Scientific American article or listen to a podcast of it here.

UPDATE:

Rachel Maddow covers the story in the first half of this segment:

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

Obama Admin. contends that Bagram Detainees have no rights

Even as the Obama administration makes platitudes about closing Guantanamo and ending the US torture program, the DOJ filed a brief on September 14th asserting that, unlike Guantanamo detainees, prisoners in Afghanistan's Bagram air base have no rights whatsoever. Nada, zip.

The briefing appears to depend on a very narrow reading of the US Supreme Court ruling in Boumediene v. Bush which firmly established habeas corpus rights for Guantanamo detainees. The ACLU says in their statement that the DOJ has missed the entire point of the Boumediene ruling, and that it obviously upheld judicial review in all cases of detention.

This filing on the part of the Obama administration is deeply disappointing. What good is phasing out Guantanamo if, as the ACLU purports, the federal government can just send the detainees to Bagram instead, where they will have even less rights. Though the Obama administration is starting to give Bagram prisoners avenues to challenge their detentions, the prisoners' lack of habeas corpus rights is morally reprehensible.

For further reading see this ABC News Blog article.

The Ali Soufan Testimonial and the Truth About The Effectifeveness of Torture

This video of former FBI Interrogator Ali Soufan's testimony before the Senate Judiciary Committee should be required viewing for understanding the torture debate:



Ali Soufan makes two key points:

1. Key information was gleaned from Abu Zubaydah using professional and unquestionably legal FBI techniques. Once torture began, no more useful information was received.

2. The "smoking gun" argument is bogus. Torture (and especially sleep deprivation) takes time. Soufan received untarnished information from Zubaydah in the first hour using his techniques.

With this testimonial, the vast majority of the torture apologist / Dick Cheney argument is dismantled. No smoking gun can wait 180 hours for a sleep deprivation stage. The argument that torture's immorality was overshadowed by its effectiveness is shattered when its use directly caused the end of the information flow.

None of these facts can stop Cheney's fact-free media circuit, but with any luck he will begin to be challenged for his irreverence for the facts of torture's proven ineffectiveness.

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.

Torture Focus

This semester I will be refocusing this blog on the torture debate in the United States. The largest reason why I am doing this is my upcoming Religious Studies course, "Religion and Politics". I plan to look specifically at Cheney, the "Bush Legacy Contract", and of course how the Obama administration defines the torture debate for themselves.

These are exciting times for the fate of human dignity, so please stay tuned!

Best,
Isaac