Bits & Pieces

If you have any doubts that waterboarding is torture, take a look at this article from Salon which summarizes the contents of internal CIA documents recently released.

The documents … lay out, in chilling detail, exactly what should occur in each two-hour waterboarding “session.” Interrogators were instructed to start pouring water right after a detainee exhaled, to ensure he inhaled water, not air, in his next breath. They could use their hands to “dam the runoff” and prevent water from spilling out of a detainee’s mouth. They were allowed six separate 40-second “applications” of liquid in each two-hour session – and could dump water over a detainee’s nose and mouth for a total of 12 minutes a day. Finally, to keep detainees alive even if they inhaled their own vomit during a session – a not-uncommon side effect of waterboarding – the prisoners were kept on a liquid diet. The agency recommended Ensure Plus.

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One of the more interesting revelations in the documents is the use of a saline solution in waterboarding. Why? Because the CIA forced such massive quantities of water into the mouths and noses of detainees, prisoners inevitably swallowed huge amounts of liquid – enough to conceivably kill them from hyponatremia, a rare but deadly condition in which ingesting enormous quantities of water results in a dangerously low concentration of sodium in the blood. Generally a concern only for marathon runners , who on extremely rare occasions drink that much water, hyponatremia could set in during a prolonged waterboarding session. A waterlogged, sodium-deprived prisoner might become confused and lethargic, slip into convulsions, enter a coma and die.

Therefore, “based on advice of medical personnel,” Principal Deputy Assistant Attorney General Steven Bradbury wrote in a May 10, 2005, memo authorizing continued use of waterboarding, “the CIA requires that saline solution be used instead of plain water to reduce the possibility of hyponatremia.”

The entire range of techniques used by the CIA and explicated in the article is beyond sickening and horrifying. I cannot comprehend how this country could have allowed this to have happened, and to have planned the torture sessions in a careful and systematic manner to enhance the discomfort and terror of the victim.

How can the Obama administration continue to take the position that a criminal investigation of these activities is not essential to restore our country to the rule of law, both domestic and international?

Matt Taibbi has a new article in RollingStone outlining the amazing similarity between the way Wall Street made money,during the collapse and through today, and classic grifter cons. As usual, his article well worth a full read.

The bottom line is that banks like Goldman have learned absolutely nothing from the global economic meltdown. In fact, they’re back conniving and playing speculative long shots in force — only this time with the full financial support of the U.S. government. In the process, they’re rapidly re-creating the conditions for another crash, with the same actors once again playing the same crazy games of financial chicken with the same toxic assets as before.

That’s why this bonus business isn’t merely a matter of getting upset about whether or not Lloyd Blankfein buys himself one tropical island or two on his next birthday. The reality is that the post-bailout era in which Goldman thrived has turned out to be a chaotic frenzy of high-stakes con-artistry, with taxpayers and clients bilked out of billions using a dizzying array of old-school hustles that, but for their ponderous complexity, would have fit well in slick grifter movies like The Sting and Matchstick Men. There’s even a term in con-man lingo for what some of the banks are doing right now, with all their cosmetic gestures of scaling back bonuses and giving to charities. In the grifter world, calming down a mark so he doesn’t call the cops is known as the “Cool Off.”

I’m seeing a series of ideas suggested involving major government intervention in the housing market, and these things are usually presented or sold as a way of helping homeowners stay in their homes. Then, when you look at them more carefully, what they really amount to is a bailout for financial institutions or Wall Street.

-Hank Paulson, former Treasury Secretary in the George W. Bush administration, February 28, 2008, quoted by The Cunning Realist.

What can one say? The ethics review of the opinions issued by John Yoo and Jay Bybee conducted by the DOJ Office of Professional Responsibility concluded that the two should be referred to their state bar associations for possible discipline. However, that report was overruled by a career lawyer within the DOJ. As the New York Times notes:

Some of the brutal interrogation methods that Mr. Yoo and Mr. Bybee approved for use on Qaeda prisoners, including wall-slamming and the near-drowning of waterboarding, had never before been authorized in American history, and the United States had condemned such treatment as torture and abuse when used by other countries.

History will be the ultimate judge of these two and the actions their opinions authorized.

Update: The full report (save for some shameful redactions by the government) is available here.

Here is a quote of what Cheney said over the weekend on national TV:

I was a big supporter of waterboarding.

Jonathan Turley points out this is a very dangerous thing to say, since waterboarding is a crime under international law.

We have now come to this: a Vice President who feels perfectly comfortable in bragging out his support for a torture program. It is a moment that is more of an indictment of Obama than (the unindicted) Cheney. It is fruit that comes from an Administration that chose politics over principle — even at the cost of precedent forged in the Nuremberg trials and the Geneva Conventions. Cheney’s statement should be a moment of unspeakable national shame.

Andrew Sullivan has more:

Either this country is governed by the rule of law or it isn’t. Cheney’s clear admission of his central role in authorizing waterboarding and the clear evidence that such waterboarding did indeed take place means that prosecution must proceed.

Cheney himself just set in motion a chain of events that the civilized world must see to its conclusion or cease to be the civilized world. For such a high official to escape the clear letter of these treaties and conventions, and to openly brag of it, renders such treaties and conventions meaningless.

And where is the United States Justice Department in all of this? Why are they not enforcing the law or at least investigating whether a crime has been committed, given this admission by the former Vice-President?

Update: More from Scott Horton at Harper’s Magazine:

Section 2340A of the federal criminal code makes it an offense to torture or to conspire to torture. Violators are subject to jail terms or to death in appropriate cases, as where death results from the application of torture techniques. Prosecutors have argued that a criminal investigation into torture undertaken with the direction of the Bush White House would raise complex legal issues, and proof would be difficult. But what about cases in which an instigator openly and notoriously brags about his role in torture?

Glenn Greenwald, writing in Salon, points out that if a government asserts that someone is a “terrorist” that does not mean that the accused in fact is a terrorist. The idea that if a claim of “terrorist” is made means anything can be done to the accused (torture, indefinite imprisonment, deportation, etc.) is what helps support the use of torture among a large number of Americans. This despite the fact that torture is both illegal and immoral. It is particularly galling that many on the right (but including a growing number on the left), who claim to be against government interference in the private sector because of alleged governmental incompetance, seem to be quite willing to believe that no claim of “terrorist” can ever be wrong.

The whole point of the Bush-era controversies was that — away from an actual battlefield and where the Constitution applies (on U.S. soil and/or towards American citizens wherever they are) — the Government should have to demonstrate someone’s guilt before it’s assumed (e.g., they should have to show probable cause to a court and obtain warrants before eavesdropping; they should have to offer evidence that a person engaged in Terrorism before locking them in a cage, etc.).  But to someone who equates unproven government accusations with proof, those processes are entirely unnecessary.  Even in the absence of those processes, they already know that these persons are Terrorists.  How do they know that?  Because the Government said so.  Even when it comes to their fellow citizens, that’s all the “proof” that is needed.

This despite repeated proof to the contrary.

After months of delay the Office of Professional Responsibility report regarding the legal advice provided to the Bush administration is about to be released. Newsweek reports:

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action—which, in Bybee’s case, could have led to an impeachment inquiry.

The Obama administration needs to conduct a full and open investigation of both the “legal” basis for Bush administration torture and the actual practice of torture. In order for change, there must be a full revelation of the way the country adopted clearly immoral behavior in response to terrorism.

More from the ABA Journal, and this from Andrew Sullivan:

The details of this critical report and the way it was handled at DOJ are little short of infuriating. Here is a critical report whose conclusions were already clear months ago: that Yoo, Bybee at al were guilty of flagrant incompetence in assessing the law in order to allow their political masters to torture at will. And yet, out of some sort of tradition, DOJ hands over the final version to a 70 year-old career Justice Department official who allowed former DOJ officials to dispute and review the report again and again, and then allowed its central conclusion to be watered down. It is one more sign – along with the blanket dismissal of the serious allegations of misconduct at Gitmo – that the Obama administration is circling the establishment wagons on defending Bush era torture and war crimes. They seem either a) incapable of understanding the gravity of what went on or b) deliberately refusing to tackle clear violations of the law out of the usual political cowardice.

Here is another depressing story, from the Washington Post, highlighting the misuse of emergency terrorism legislation to wrongfully request telephone records from 2002 to 2006.

The FBI illegally collected more than 2,000 U.S. telephone call records between 2002 and 2006 by invoking terrorism emergencies that did not exist or simply persuading phone companies to provide records, according to internal bureau memos and interviews. FBI officials issued approvals after the fact to justify their actions.

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A Justice Department inspector general’s report due out this month is expected to conclude that the FBI frequently violated the law with its emergency requests, bureau officials confirmed.

When people argue that such powers do not bother them because they do nothing wrong, they have to understand that when governments are given the power to breach privacy rights without judicial review, wrongdoing almost always occurs. This behavior is inherent in governments and it is why our Constitution requires judicial approval of search warrants..

The case of Maher Arar, a Candadian citizen, is appalling. David Cole, writing in the current issue of The New York Review of Books, outlines the terrible injustice done by the United States to this man, and the shameful failure of our court system to provide justice for violations of national and international prohibitions on torture.  Here are the opening paragraphs, but read the entire story for yourself if you care about the duties of the United States that have been destroyed in the name of the war on terror

In the fall of 2002, Maher Arar, a Canadian citizen on his way home from Tunisia, was pulled out of line by US officials while changing planes at New York’s John F. Kennedy Airport. He was locked up for twelve days, much of that time incommunicado, and harshly interrogated. When he was finally allowed to make a phone call, after a week in captivity, he called his mother in Canada, who found him a lawyer.

The lawyer saw Arar on Saturday. The very next night—a Sunday evening—immigration officials held an extraordinary six-hour hearing starting at 9 PM, orchestrated from Washington, D.C. When Arar asked to have his lawyer present, they told him that she had chosen not to participate in the hearing. In fact, the only “notice” they had provided was to leave a message on the lawyer’s office voice mail that Sunday night. She got the message Monday morning, and immediately called the immigration service. They told her, falsely, that Arar was being transferred to New Jersey, and she could contact him the next day. In fact, that night federal agents took him on a federally chartered jet to Jordan, and from there to Syria.

In Syria, Arar was handed over to intelligence officials who imprisoned him in a cell the size of a grave, three feet by six feet by seven feet. Syrian security agents tortured him, including beating him with an electric cable, while asking the same questions that FBI interrogators had been asking at JFK—was he a terrorist, was he linked to al-Qaeda, did he know various other persons thought to be associated with al-Qaeda? (The Syrian security forces are widely known for their use of torture, as the US State Department reports every year in its annual Human Rights Country Reports.) After a year, the Syrians released Arar, concluding that he had done nothing wrong.

Did anyone at Human Events notice what year it is? Salon thinks not.

For most people, the year ending now is 2009. That’s apparently not true at the right-wing magazine Human Events; reading it Monday, you could be forgiven for thinking that the Bush administration is still in office.

Update: And Wonkette adds its own take.

There is nothing against you. But there is no innocent person here. So, you should confess to something so you can be charged and sentenced and serve your sentence and then go back to your family and country, because you will not leave this place innocent. [emphasis added]

– Statement of US interrogator to al-Rabiah during his interrogation, quoted by the judge on page 41 of the decision. This was cited in an email from a US Attorney posted at Andrew Sullivan’s blog. Take a minute and read what he has to say.

This was not a statement pulled from the transcripts of the Nuremburg trials, nor archival evidence taken from reports smuggled out of one of Stalin’s gulags.  This was a statement made by an agent of this government less than 7 years ago to a detainee.  The enormity of that is nearly incomprehensible.

But even worse – far worse – is the fact that the government would nevertheless still seek to convict based on the resulting confession.

To those of us who read that passage and who vowed and make it our vocation to serve and protect the Constitution of the United States, that fact is a gut-punch.

Andrew Sullivan tackles US torture head on. This is not alleged torture, nor is it “enhanced interrogation techniques”. Such torture has now been confirmed in a Federal court judgment:

We now know that torturing a human being to get proof that he deserved to be tortured was not just a theoretical fear of mine. It happened. If it happened once, it almost certainly happened more often. The temptations are just too great; and when you have clear evidence that Bush and Cheney knew some inmates to be innocent but tortured them anyway to manufacture evidence of their guilt, we know that there was nothing in the character of those two men to restrain the true nightmare scenario.

Go here and read Scott Horton’s vital account of what the case of Fouad al-Rabiah tells us about the abyss the last administration threw us into. Here is the actual judgment, which provides a meticulous and unanswerable account of the extent to which the torture power corrupted the American government in ways usually found in totalitarian regimes. Read too how the Obama administration – far from turning the page on this matter, as it openly pledged to do – is up to its neck in the same disgrace, pursuing charges against a man they also knew was plainly innocent of all charges, simply to prevent embarrassing the government.

Obama had a chance to draw a line between his administration and the last. While he deserves credit for ending the torture going forward, he has essentially embraced and defended the torture of the past. Which makes him and Eric Holder complicit in it as well. May God and history forgive them. I sure won’t.

And here is a release from the law firm that defended the victim.

Shameful.

Sorry to cast a pall over the Labor Day festivities, but the US has lost over 200,000 jobs over the past 10 years. That’s right: negative job growth over a decade.

Three judges on the Ninth Circuit Court of Appeals have ruled that weeks-long detentions of innocent people as “material witnesses” violates the Constitution. From the New York Times:

In the decision, a three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, was sharply critical of the Bush administration’s practice of holding people it suspected of terrorism without charges, as material witnesses.

And from the decision itself:

We are confident that, in light of the experience of the American colonists with the abuses of the British Crown, the Framers of our Constitution would have disapproved of the arrest, detention, and harsh confinement of a United States citizen as a “material witness” under the circumstances, and for the immediate purpose alleged, in al-Kidd’s complaint. Sadly, however, even now, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world. We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.

As a result, John Ashcroft may face personal liability. Interestingly, two of the judges on the panel were appointed by George W. Bush, and the third by Ronald Reagan. It is unlikely these judges are insensitive to the claims of the government. Full text of the decision, al-Kidd v. Ashcroft, is here and it graphically outlines the lack of due process and undue harassment under an organized federal program.

The wheels of justice move slowly, but there are hopeful signs that constitutional sanity is returning.

The New York Times calls for a full investigation of torture programs conducted by the Bush administration, under the guidance of Dick Cheney.

In Mr. Cheney’s view, it is not just those who followed orders and stuck to the interrogation rules set down by President George Bush’s Justice Department who should be sheltered from accountability. He said he also had no problem with those who disobeyed their orders and exceeded the guidelines.

It’s easy to understand Mr. Cheney’s aversion to the investigation that Attorney General Eric Holder ordered last week. On Fox, Mr. Cheney said it was hard to imagine it stopping with the interrogators. He’s right.

The government owes Americans a full investigation into the orders to approve torture, abuse and illegal, secret detention, as well as the twisted legal briefs that justified those policies. Congress and the White House also need to look into illegal wiretapping and the practice of sending prisoners to other countries to be tortured.