Saturday, December 22, 2007

Right-Wing Pundit: Give The CIA Official Who Destroyed The Torture Tapes ‘A Medal’


Prominent conservative commentator Linda Chavez writes that Jose Rodriguez, the CIA official who reportedly undertook the destruction of the torture tapes, “deserves a medal.” Chavez — President Bush’s once-failed Secretary of Labor candidate — writes:

In the next few months, [Rodriguez’s] name will likely be dragged through the mud, and he will be vilified as a rogue official engaged in a massive cover-up. I think he deserves a medal. […]

Rodriguez’s lawyer says that his client sought and received legal clearance to destroy the tapes. Even though he is likely to become a scapegoat, what he did was right. He protected not just his men but all of us. I, for one, thank him.

Given Bush’s past record of distributing medals to individuals who carried out the White House’s disastrous policies (see George Tenet and Paul Bremer), Rodriguez would indeed qualify. The New York Times reported recently that there was “vigorous sentiment” among some top White House officials to destroy the tapes.

In November, Fox pundit John Gibson said the White House deserved a medal for outing Valerie Plame. Conservatives have made a mockery of the “presidential medal of freedom,” turning it into a symbol for absolving the Bush administration’s illegal behavior.

Let Congress, courts probe CIA tapes case

The Bush administration has taken a heads-we-win, tails-you-lose approach to the scandal over the destruction of CIA interrogation videos. First, the Justice Department asked a federal court to halt a pending inquiry partly because Congress was already looking into it. Then it turned around and urged Congress to shut down its investigation until the CIA and Justice were finished with theirs. As convenient as this would be for an administration that prefers to operate in secrecy, both the courts and Congress have an obligation to conduct independent inquiries.

Pattern of secrecy

If the administration gets its way, the story of the videotapes' destruction would remain forever a matter of mystery and conjecture. This would conform to a years-long pattern in which anything remotely related to the war on terror -- wiretapping, the treatment of detainees, the ''rendition'' program -- has been stamped secret. The courts and Congress have had a hard time trying to exercise oversight and properly addressing issues of legality.

In the case of the CIA videotapes, there are two issues, and it's hard to say which is worse for the administration. The first is what Was on the videotapes: Were at least two al Qaeda operatives subjected to unlawful interrogation methods, i.e., torture? The second is whether the destruction itself violated the law.

Some lawmakers knew of the existence of the videotapes. All say they advised against destroying the tapes. Published reports say former Attorney General Alberto Gonzales and White House Counsel Harriet Miers were among those consulted. It is not clear what advice they gave, but the involvement of such prominent officials underscores the need for Congress to find out who ordered the destruction and why.

Judge makes right call

The judicial inquiry is equally serious. In 2005, U.S. District Judge Henry H. Kennedy issued an order requiring the administration to preserve evidence in a lawsuit brought on behalf of 16 prisoners at Guantánamo Bay, Cuba. A violation of that order could represent obstruction of justice. In view of reports about possible Justice Department or White House involvement, Judge Kennedy has been right to insist that administration lawyers appear in court today to discuss whether the destruction violated his order.

On Thursday, the CIA agreed to turn over to Congress documents related to the destruction of the tapes, reversing its earlier position under threat of subpoena. Now Congress must be careful to avoid the possibility that its investigation will produce testimony that would complicate, if not impede, the prosecution of witnesses who testify on Capitol Hill with or without grants of immunity.

Friday, December 21, 2007

9/11 Panel Study Finds That C.I.A. Withheld Tapes

WASHINGTON — A review of classified documents by former members of the Sept. 11 commission shows that the panel made repeated and detailed requests to the Central Intelligence Agency in 2003 and 2004 for documents and other information about the interrogation of operatives of Al Qaeda, and were told by a top C.I.A. official that the agency had “produced or made available for review” everything that had been requested.

The review was conducted earlier this month after the disclosure that in November 2005, the C.I.A. destroyed videotapes documenting the interrogations of two Qaeda operatives.

A seven-page memorandum prepared by Philip D. Zelikow, the panel’s former executive director, concluded that “further investigation is needed” to determine whether the C.I.A.’s withholding of the tapes from the commission violated federal law.

In interviews this week, the two chairmen of the commission, Lee H. Hamilton and Thomas H. Kean, said their reading of the report had convinced them that the agency had made a conscious decision to impede the Sept. 11 commission’s inquiry.

Mr. Kean said the panel would provide the memorandum to the federal prosecutors and congressional investigators who are trying to determine whether the destruction of the tapes or withholding them from the courts and the commission was improper.

A C.I.A. spokesman said that the agency had been prepared to give the Sept. 11 commission the interrogation videotapes, but that commission staff members never specifically asked for interrogation videos.

The review by Mr. Zelikow does not assert that the commission specifically asked for videotapes, but it quotes from formal requests by the commission to the C.I.A. that sought “documents,” “reports” and “information” related to the interrogations.

Mr. Kean, a Republican and a former governor of New Jersey, said of the agency’s decision not to disclose the existence of the videotapes, “I don’t know whether that’s illegal or not, but it’s certainly wrong.” Mr. Hamilton, a former Democratic congressman from Indiana, said that the C.I.A. “clearly obstructed” the commission’s investigation.

A copy of the memorandum, dated Dec. 13, was obtained by The New York Times.

Among the statements that the memorandum suggests were misleading was an assertion made on June 29, 2004, by John E. McLaughlin, the deputy director of central intelligence, that the C.I.A. “has taken and completed all reasonable steps necessary to find the documents in its possession, custody or control responsive” to formal requests by the commission and “has produced or made available for review” all such documents.

Both Mr. Kean and Mr. Hamilton expressed anger after it was revealed this month that the tapes had been destroyed. However, the report by Mr. Zelikow gives them new evidence to buttress their views about the C.I.A.’s actions and is likely to put new pressure on the Bush administration over its handling of the matter. Mr. Zelikow served as counselor to Secretary of State Condoleezza Rice from 2005 to the end of 2006.

In an interview on Friday, Mr. McLaughlin said that agency officials had always been candid with the commission, and that information from the C.I.A. proved central to their work.

“We weren’t playing games with them, and we weren’t holding anything back,” he said. The memorandum recounts a December 2003 meeting between Mr. Kean, Mr. Hamilton and George J. Tenet, then the director of central intelligence. At the meeting, it says, Mr. Hamilton told Mr. Tenet that the C.I.A. should provide all relevant documents “even if the commission had not specifically asked for them.”

According to the memorandum, Mr. Tenet responded by alluding to several documents that he thought would be helpful to the commission, but made no mention of existing videotapes of interrogations.

The memorandum does not draw any conclusions about whether the withholding of the videotapes was unlawful, but it notes that federal law penalizes anyone who “knowingly and willfully” withholds or “covers up” a “material fact” from a federal inquiry or makes “any materially false statement” to investigators.

Mark Mansfield, the C.I.A. spokesman, said that the agency had gone to “great lengths” to meet the commission’s requests, and that commission members had been provided with detailed information obtained from interrogations of agency detainees.

“Because it was thought the commission could ask about the tapes at some point, they were not destroyed while the commission was active,” Mr. Mansfield said.

Intelligence officials have said the tapes that were destroyed documented hundreds of hours of interrogations during 2002 of Abu Zubaydah and Abd al Rahim al-Nashiri, two Qaeda suspects who were taken into C.I.A. custody that year.

According to the memorandum from Mr. Zelikow, the commission’s interest in obtaining accounts from Qaeda detainees in C.I.A. custody grew out of its attempt to reconstruct the events leading up to the Sept. 11 attacks in the United States.

Its requests for documents from the C.I.A. began in June 2003, when it first sought intelligence reports describing information obtained from prisoner interrogations, the memorandum said. It later made specific requests for documents, reports and information related to the interrogations of specific prisoners, including Abu Zubaydah and Mr. Nashiri.

In December 2003, the commission staff sought permission to interview the prisoners themselves, but was permitted instead to give questions to C.I.A. interrogators, who then posed the questions to the detainees. The commission concluded its work in June 2004, and in its final report, it praised several agencies, including the C.I.A., for their assistance.

Abbe D. Lowell, a veteran Washington lawyer who has defended clients accused of making false statements and of contempt of Congress, said the question of whether the agency had broken the law by omitting mention of the videotapes was “pretty complex,” but said he “wouldn’t rule it out.”

Because the requests were not subpoenas issued by a court or Congress, C.I.A. officials could not be held in contempt for failing to respond fully, Mr. Lowell said. Apart from that, however, it is a crime to make a false statement "in any matter within the jurisdiction of the executive, legislative or judicial branch."

The Sept. 11 commission received its authority from both the White House and Congress.

On Friday, the leaders of the Senate Judiciary Committee sent a letter to Attorney General Michael B. Mukasey and to Mike McConnell, the director of national intelligence, asking them to preserve and produce to the committee all remaining video and audio recordings of “enhanced interrogations” of detainees in American custody.

Signed by Senator Patrick Leahy, Democrat of Vermont, and Senator Arlen Specter, Republican of Pennsylvania, the letter asked for an extensive search of the White House, C.I.A. and other intelligence agencies to determine whether any other recordings existed of interrogation techniques “including but not limited to waterboarding.”

Government officials have said that the videos destroyed in 2005 were the only recordings of interrogations made by C.I.A. operatives, although in September government lawyers notified a federal judge in Virginia that the agency had recently found three audio and video recordings of detainees.

Intelligence officials have said that those tapes were not made by the C.I.A., but by foreign intelligence services.

Huckabee: ‘If Anything,’ We Treat Inmates At Guantanamo Bay ‘Too Nice’

During a campaign stop in Iowa today, former Arkansas Governor Mike Huckabee commented on the conditions at the military detention center in Guantanamo Bay, Cuba, saying that “the inmates there were getting a whole lot better treatment” than “prisoners in Arkansas.” “I hope our guys don’t see this,” added Huckabee. “They’ll all want to be transferred to Guanatanmo.”

“If anything, it’s too nice,” said Huckabee:

“The inmates there were getting a whole lot better treatment than my prisoners in Arkansas. In fact, we left saying, ‘I hope our guys don’t see this. They’ll all want to be transferred to Guanatanmo.’ If anything, it’s too nice.”

Huckabee has said Guantanamo is more a “symbolic issue” than anything else since the detainees are treated better than prisoners in the US.

Huckabee, who recently came out in favor of closing Guantanamo, has made similar comparisons in the past.

In June, Huckabee said on CNN’s Late Edition that “most of our prisoners would love to be in a facility more like Guantanamo.” At the time, he said we couldn’t close the facility because hypothetically, “if we let somebody out” they could “come and fly an airliner into one of our skyscrapers.”

Huckabee may have seen “nice” conditions when he visited Guantanamo. But FBI agents who worked at the facility have reported that detainees were subjected to harsh conditions, including “the use of growling dogs” to “intimidate detainees,” at least as recently as 2004:

Detainees at the U.S. military prison at Guantanamo Bay, Cuba, were shackled to the floor in fetal positions for more than 24 hours at a time, left without food and water, and allowed to defecate on themselves, an FBI agent who said he witnessed such abuse reported in a memo to supervisors.

A recently released operations manual for the prison, dated March 28, 2003, “indicates that some prisoners were hidden from Red Cross representatives.” Presumably, such “no-access” detainees would have been hidden from visitors like Huckabee as well.

Australia imposes tight controls on Guantánamo detainee

Former Guantánamo Bay inmate David Hicks will face strict restrictions when he is released from an Australian prison next week, a magistrate has ruled.
Warren Donald said Hicks remained a threat to Australia's national security as he imposed a control order which requires the Muslim convert to report to police three times a week, stay at premises agreed on by police, remain in Australia and not contact a list of terror suspects.

Hicks, a former kangaroo skinner, is due to be freed on December 29 from a high-security prison in Adelaide.
He had spent more than five years at Guantánamo Bay without trial after being captured in 2001 in Afghanistan.

At a US military tribunal in March, he pleaded guilty to providing material support to al-Qaida. He was sentenced to seven years in prison, but most of it was suspended, allowing his release next week.

Hicks was returned to Australia to serve the remainder of his sentence. He has not been convicted of any crime in the country, but police sought a control order.

He has admitted he attended al-Qaida training camps in Pakistan, and prosecutors said evidence showed Hicks undertook "substantial training" in basic arms and combat, guerrilla warfare and advanced marksmanship from al-Qaida and the Pakistani terror group Lashkar-e-Tayyiba.

On Thursday, police lawyer Andrew Berger quoted letters sent in 2001 by Hicks to his family in which he said he had met al-Qaida leader Osama bin Laden 20 times and described him as a "lovely brother".

The magistrate said the chances that Hicks would engage in a terrorist act were small, but evidence presented to court showed he did have the capacity to do so, and was therefore a risk to national security.

"I am satisfied on the balance of probabilities that there is a risk of the respondent either participating in a terrorist act or training others for that purpose," Donald said in his ruling.

The restrictions will last for one year, although Hicks has an opportunity to challenge the orders at a hearing on February 18.

His father, Terry, said: "All David wants to do is get back in the mainstream, get on his with life, get on with a job, try to get into a university. David has been under immense pressure for six years and now he's got another 12 months of pressure."

Only one other terrorist suspect has been given a control order in Australia. The first was imposed last year on Melbourne man Jack Thomas, who is facing a retrial on terror-related charges.

Report: Gonzo Opposed Destruction of CIA Torture Tapes

The AP reports that Alberto Gonzales was among a group of White House lawyers who opposed destruction of the tapes:

One official familiar with the investigation said the review so far indicates that Alberto Gonzales, who served as White House counsel and then attorney general, advised against destroying the videotapes as one of four senior Bush administration attorneys discussing how to handle them. The official spoke on condition of anonymity because of the ongoing investigation. Gonzales' attorney, George Terwilliger, declined comment.
Another of the administration attorneys, John Bellinger, then a lawyer at the National Security Council, has told colleagues that administration lawyers came to a consensus that the tapes should not be destroyed, said a senior official familiar with Bellinger's account of the 2003 White House discussion. Bellinger could not be reached for comment.

"The clear recommendation of Bellinger and the others was against destruction of the tapes," the official said, speaking on condition of anonymity because of the sensitivity of the matter. "The recommendation in 2003 from the White House was that the tapes should not be destroyed."


No mention of Cheney's David Addington.

Thursday, December 20, 2007

Guantanamo duo face extradition to Spain after release


Read the whole story here FRUQTADA

Bin Laden's driver is not a POW, U.S. judge says

MIAMI (Reuters) - Osama bin Laden's driver is not a prisoner of war as defined by the Geneva Conventions and can be tried by a Guantanamo war crimes tribunal, a U.S. military judge ruled in a decision made public on Thursday.

The judge said Yemeni prisoner Salim Ahmed Hamdan is an "unlawful enemy combatant" under the law passed by Congress last year to provide a legal basis to try non-U.S. citizens on terrorism charges in a special war crimes court at the U.S. naval base in Guantanamo Bay, Cuba.

Lawyers for Hamdan, who has acknowledged he was paid $200 a month to drive and guard the al Qaeda leader in Afghanistan, said he was a civilian support worker who should be considered a prisoner of war deserving of the safeguards outlined in the Geneva Conventions that govern the treatment of war captives.

POWs can be tried by court-martial, but not in ad hoc tribunals such as those still evolving at Guantanamo. A finding that Hamdan was a POW would have raised questions about the status of the other 285 foreign captives held at the Guantanamo prison camp.

The ruling by the military judge, Navy Capt. Keith Allred, clears the way for Hamdan's trial to proceed in the Guantanamo war court, where he would face life in prison if convicted on charges of conspiracy and providing material support for terrorism.

C.I.A. to Cooperate With House on Tapes


The Central Intelligence Agency has agreed to make documents related to the destruction of interrogation videotapes available to the House Intelligence Committee and to allow the agency’s top lawyer, John A. Rizzo, to testify about the matter, Congressional and intelligence officials said Wednesday.

But it remained unclear whether Jose A. Rodriguez, who as chief of the agency’s clandestine service ordered the tapes destroyed in 2005, would testify. Officials said Mr. Rodriguez’s appearance before the committee might involve complex negotiations over legal immunity at a time when the Justice Department and the intelligence agency were reviewing whether the destruction of the tapes broke any laws.

The agreement marked at least a partial resolution of a standoff between the Bush administration and Congress.

The standoff began on Friday, when the Justice Department urged the House panel to postpone any inquiry on the grounds it might hinder the review by Justice and the C.I.A.’s inspector general. The committee’s Democratic chairman, Representative Silvestre Reyes of Texas, and its top Republican, Representative Peter Hoekstra of Michigan, responded by refusing to put off the investigation, saying there were many precedents for Congressional inquiries to proceed in parallel with criminal investigations.

This week, the administration has sought a compromise. “The Department of Justice has changed their minds, and today we have reason to believe that we will be getting the documents,” Mr. Reyes told reporters on Wednesday.

In a conciliatory statement Wednesday night, Brian Roehrkasse, a Justice Department spokesman, said the department has “no desire to block any Congressional investigation” and has not advised the C.I.A. against cooperating with the committee.

“The wisdom, propriety and appropriateness of the decision to destroy these tapes are worthy and compelling subjects of an oversight investigation,” Mr. Roehrkasse said. But he said officials were still concerned that a Congressional inquiry could cause “disruption of our initial witness interviews, the delay and disruption of our document collection, and the tainting of any future criminal prosecutorial action because of Congressional grants of immunity to witnesses.”

The committee sent unsigned subpoenas for documents and for the testimony of Mr. Rodriguez and Mr. Rizzo to the agency on Tuesday, and Mr. Reyes said he was prepared to sign the subpoenas if it became necessary.

A C.I.A. spokesman, Mark Mansfield, said the agency’s director, Gen. Michael V. Hayden, was eager to accommodate the committee as it performed its oversight role. “We’re in touch with the House Intelligence Committee on these matters, and we look forward to it being worked out,” he said.

An intelligence official, offering more details on condition of anonymity, said the top-secret documents would be made available either on Capitol Hill or at the agency, as soon as the logistics could be worked out, as early as Thursday afternoon.

The official also said Mr. Rizzo, the agency’s acting general counsel, would be prepared to testify at a hearing tentatively scheduled for Jan. 16. As the agency’s top lawyer for most of the last six years, Mr. Rizzo played a central role in discussions of whether the tapes should be destroyed.

The official declined to say whether Mr. Rodriguez would testify, and Mr. Rodriguez’s lawyer, Robert S. Bennett, declined to comment.

Current and former intelligence officials have said that the tapes of harsh interrogation of two Al Qaeda operatives in 2002 were made in part to document the methods being used for the first time by C.I.A. officers. But, they said, officials soon decided that taping sessions was a bad idea and could endanger interrogators if they were ever leaked.

The New York Times reported on Wednesday that discussions about the proposal to destroy the tapes involved four high-level White House lawyers: Alberto R. Gonzales, who served as White House counsel until early 2005; David S. Addington, who was the counsel to Vice President Dick Cheney and is now his chief of staff; John B. Bellinger III, who until January 2005 was the senior lawyer at the National Security Council; and Harriet E. Miers, who succeeded Mr. Gonzales as White House counsel.

In a statement on Wednesday, the White House press secretary, Dana M. Perino, criticized a subheading on the Times article that said, “White House role was wider than it said,” noting that the White House has “not publicly commented on the issue,” except to note the president’s “immediate reaction upon being briefed on the matter.” She called any suggestion that might be taken from the subheading to indicate that there was an effort by the White House to mislead the public on the videotapes issue “pernicious and troubling.”

Citing the Justice Department’s preliminary investigation, Ms. Perino said White House officials had been asked not to discuss the videotapes and declined to say who on President Bush’s staff was aware of the tapes. “We have not described, neither to highlight nor to minimize, the role or deliberations of White House officials in this matter,” she said.

The New York Times said it would publish a correction on Thursday, and noted that the White House “had not challenged the content of our story,” the newspaper’s spokeswoman, Catherine J. Mathis, said in a statement.

At a confirmation hearing for President Bush’s nominee for deputy attorney general on Wednesday, lawmakers voiced frustration about being denied details of the videotapes’ destruction and urged the nominee, Mark Filip, to cooperate with Congressional inquiries.

Judge Filip, now on the federal bench in Chicago, told lawmakers he might have counseled the C.I.A. not to destroy the tapes.

“It might be the better practice to keep those in any event, given the interest in the subject matter that was on the tapes,” Mr. Filip told the Senate Judiciary Committee.

Wednesday, December 19, 2007

House panel prepares subpoenas for CIA officials.

After Attorney General Mike Mukasey blocked CIA officials from appearing at a closed hearing before Congress last week, the House Intelligence Committee “said Wednesday it has prepared subpoenas to force CIA officials to testify about the agency’s secret destruction of interrogation videotapes.” The Committee’s threat marks “the second challenge to a White House attempt to shut down independent investigations,” after “a federal judge rejected an administration effort to keep the courts out of the investigation.”

Deputy AG Nominee: Waterboarding Is ‘Repugnant,’ But Can’t Say Whether It’s Torture

Today in his nomination hearing to be Deputy Attorney General, Mark Filip refused to explicitly say whether he believed waterboarding to be torture. He told Sen. Ted Kennedy (D-MA) that he found the interrogation technique “repugnant,” but couldn’t answer without taking “a long hard look at” the information:

KENNEDY: The key question is what constitutes torture. So the question that Judge Mukasey would say nothing at all on that question. So the same question to you: Do you consider waterboarding torture.

MARK FILIP: Senator, speaking personally, I consider waterboarding to be repugnant as it’s been reported in any of its various iterations. […]

That said, the Attorney General of the United States is presently reviewing that legal question. He determined that he wanted to have access to the classified information and memos about it. I don’t think I can or anyone who could be potentially considered to be his deputy could get out in front of him on that question while it’s under review.

Kennedy continued to press Filip, expressing surprise that he was dodging the issue:

I must say, everyone is familiar with the challenges that were out there for Mr. Mukasey when he refused to give an answer on that, and we thought you’d be able to give a response to this. You’ve been a judge, made the decisions, know what the issues are. It’s not a complicated issue in question, and it seems to be that you ought to be able to respond to it.

Filip simply replied that he awaits the opportunity to have “access to that information” so that he can “give candid advice to the Attorney General.

In October, the Senate Judiciary Committee was set to approve Attorney General nominee Michael Mukasey with little objection, until he obfuscated on waterboarding. Mukasey claimed that although waterboarding was “repugnant” to him on a “personal basis,” he was unable to strike a “legal opinion” without the “actual facts and circumstances.”

UPDATE: Later in the hearing, Sen. Dick Durbin (D-IL) told Filip that he was not “satisfied” with Filip’s answer on waterboarding:

I think it is a response consistent with Attorney General Mukasey. But consistent with Attorney General Mukasey’s response to this committee, he received the lowest confirmation vote of any Attorney General nominee in the last fifty years. And that’s where you find yourself at this moment, over the same issue.

Transcript:

KENNEDY: I just wanted to clarify an earlier response that you gave to Chairman Leahy, that was on the torture issue. I heard you say to the Chairman that torture is unconstitutional so it’s always prohibited. Judge Mukasey said the same thing to us. But everyone agrees with that point. The key question is what constitutes torture. So the question that Judge Mukasey would say nothing at all on that question. So the same question to you: Do you consider waterboarding torture.

MARK FILIP: Senator, speaking personally, I consider waterboarding to be repugnant as it’s been reported in any of its various iterations. The Attorney General — I also think it’s important for us to all be mindful that we have service members around the world often times in precarious places, and I don’t view that as some sort of abstract platitude. I had a grandfather who was in a German prisoner of war camp.

That said, the Attorney General of the United States is presently reviewing that legal question. He determined that he wanted to have access to the classified information and memos about it. I don’t think I can or anyone who could be potentially considered to be his deputy could get out in front of him on that question while it’s under review. But I will tell you that if I’m confirmed at a time such that that review is ongoing or he otherwise sought my advice on it, I would view it like any other legal question and take a long hard look at it, and if I had a view on it different from his, I would tell him so.

KENNEDY: Well, you’ve been a judge. You know what this issue is. This shouldn’t be something that’s going to take a lot more study about. I mean, you know what we’re talking about. Not only are you familiar with the concept but you know the arguments of it, and you know what the debate’s been about, and you know what the Geneva Convention. I mean, we ought to get — “repugnant” is not the answer that meets the requirement in terms of the various statutes. You’re not prepared to tell us in your own words whether you believe that waterboarding is torture, the same kind of techniques that the United States prosecuted Japanese for doing to Americans in World War II.

FILIP: I think Senator that I’d await having access to that information, and await an opportunity of confirm to give candid advice to the Attorney General on that before I answer a question he presently has under review.

KENNEDY: Well others will come, I’m sure, back to that, but I must say, everyone is familiar with the challenges that were out there for Mr. Mukasey when he refused to give an answer on that, and we thought you’d be able to give a response to this. You’ve been a judge, made the decisions, know what the issues are. It’s not a complicated issue in question, and it seems to be that you ought to be able to respond to it.

Who Would Jesus Torture?


From Harold Meyerson

As Christians across the world prepare to celebrate the birth of Jesus, it's a fitting moment to contemplate the mountain of moral, and mortal, hypocrisy that is our Christianized Republican Party.

There's nothing new, of course, about the Christianization of the GOP. Seven years ago, when debating Al Gore, then-candidate George W. Bush was asked to identify his favorite philosopher and answered "Jesus." This year, however, the Christianization of the party reached new heights with Mitt Romney's declaration that he believed in Jesus as his savior, in an effort to stanch the flow of "values voters" to Mike Huckabee.

My concern isn't the rift that has opened between Republican political practice and the vision of the nation's Founders, who made very clear in the Constitution that there would be no religious test for officeholders in their enlightened new republic. Rather, it's the gap between the teachings of the Gospels and the preachings of the Gospel's Own Party that has widened past the point of absurdity, even as the ostensible Christianization of the party proceeds apace.

The policies of the president, for instance, can be defended in greater or (more frequently) lesser degree within a framework of worldly standards. But if Bush can conform his advocacy of preemptive war with Jesus's Sermon on the Mount admonition to turn the other cheek, he's a more creative theologian than we have given him credit for. Likewise his support of torture, which he highlighted again this month when he threatened to veto House-passed legislation that would explicitly ban waterboarding.

It's not just Bush whose catechism is a merry mix of torture and piety. Virtually the entire Republican House delegation opposed the ban on waterboarding. Among the Republican presidential candidates, only Huckabee and the not-very-religious John McCain have come out against torture, while only libertarian Ron Paul has questioned the doctrine of preemptive war.

But it's on their policies concerning immigrants where Republicans -- candidates and voters alike -- really run afoul of biblical writ. Not on immigration as such but on the treatment of immigrants who are already here. Consider: Christmas, after all, celebrates not just Jesus's birth but his family's flight from Herod's wrath into Egypt, a journey obviously undertaken without benefit of legal documentation. The Bible isn't big on immigrant documentation. "Thou shalt neither vex a stranger nor oppress him," Exodus says the Lord told Moses on Mount Sinai, "for ye were strangers in the land of Egypt."

Yet the distinctive cry coming from the Republican base this year isn't simply to control the flow of immigrants across our borders but to punish the undocumented immigrants already here, children and parents alike.

So Romney attacks Huckabee for holding immigrant children blameless when their parents brought them here without papers, and Huckabee defends himself by parading the endorsement of the Minuteman Project's Jim Gilchrist, whose group harasses day laborers far from the border. The demand for a more regulated immigration policy comes from virtually all points on our political spectrum, but the push to persecute the immigrants already among us comes distinctly, though by no means entirely, from the same Republican right that protests its Christian faith at every turn.

We've seen this kind of Christianity before in America. It's more tribal than religious, and it surges at those times when our country is growing more diverse and economic opportunity is not abounding. At its height in the 1920s, the Ku Klux Klan was chiefly the political expression of nativist Protestants upset by the growing ranks of Catholics in their midst.

It's difficult today to imagine KKKers thinking of their mission as Christian, but millions of them did.

Today's Republican values voters don't really conflate their rage with their faith. Lou Dobbs is a purely secular figure. But nativist bigotry is strongest in the Old Time Religion precincts of the Republican Party, and woe betide the Republican candidate who doesn't embrace it, as John McCain, to his credit and his political misfortune, can attest.

The most depressing thing about the Republican presidential race is that the party's rank and file require their candidates to grow meaner with each passing week. And now, inconveniently, inconsiderately, comes Christmas, a holiday that couldn't be better calibrated to expose the Republicans' rank, fetid hypocrisy.

Bush Lawyers Discussed Fate of C.I.A.Tapes

From NYT:

At least four top White House lawyers took part in discussions with the Central Intelligence Agency between 2003 and 2005 about whether to destroy videotapes showing the secret interrogations of two operatives from Al Qaeda, according to current and former administration and intelligence officials.

The accounts indicate that the involvement of White House officials in the discussions before the destruction of the tapes in November 2005 was more extensive than Bush administration officials have acknowledged.

Those who took part, the officials said, included Alberto R. Gonzales, who served as White House counsel until early 2005; David S. Addington, who was the counsel to Vice President Dick Cheney and is now his chief of staff; John B. Bellinger III, who until January 2005 was the senior lawyer at the National Security Council; and Harriet E. Miers, who succeeded Mr. Gonzales as White House counsel.

It was previously reported that some administration officials had advised against destroying the tapes, but the emerging picture of White House involvement is more complex. In interviews, several administration and intelligence officials provided conflicting accounts as to whether anyone at the White House expressed support for the idea that the tapes should be destroyed.

One former senior intelligence official with direct knowledge of the matter said there had been “vigorous sentiment” among some top White House officials to destroy the tapes. The former official did not specify which White House officials took this position, but he said that some believed in 2005 that any disclosure of the tapes could have been particularly damaging after revelations a year earlier of abuses at Abu Ghraib prison in Iraq.

Some other officials assert that no one at the White House advocated destroying the tapes. Those officials acknowledged, however, that no White House lawyer gave a direct order to preserve the tapes or advised that destroying them would be illegal.

The destruction of the tapes is being investigated by the Justice Department, and the officials would not agree to be quoted by name while that inquiry is under way.

Spokesmen for the White House, the vice president’s office and the C.I.A. declined to comment for this article, also citing the inquiry.

The new information came to light as a federal judge on Tuesday ordered a hearing into whether the tapes’ destruction violated an order to preserve evidence in a lawsuit brought on behalf of 16 prisoners at Guantánamo Bay, Cuba. The tapes documented harsh interrogation methods used in 2002 on Abu Zubaydah and Abd al-Rahim al-Nashiri, two Qaeda suspects in C.I.A. custody.

The current and former officials also provided new details about the role played in November 2005 by Jose A. Rodriguez Jr., then the chief of the agency’s clandestine branch, who ultimately ordered the destruction of the tapes.

The officials said that before he issued a secret cable directing that the tapes be destroyed, Mr. Rodriguez received legal guidance from two C.I.A. lawyers, Steven Hermes and Robert Eatinger. The officials said that those lawyers gave written guidance to Mr. Rodriguez that he had the authority to destroy the tapes and that the destruction would violate no laws.

The agency did not make either Mr. Hermes or Mr. Eatinger available for comment.

Current and former officials said the two lawyers informed the C.I.A.’s top lawyer, John A. Rizzo, about the legal advice they had provided. But officials said Mr. Rodriguez did not inform either Mr. Rizzo or Porter J. Goss, the C.I.A. director, before he sent the cable to destroy the tapes.

“There was an expectation on the part of those providing legal guidance that additional bases would be touched,” said one government official with knowledge of the matter. “That didn’t happen.”

Robert S. Bennett, a lawyer for Mr. Rodriguez, insisted that his client had done nothing wrong and suggested that Mr. Rodriguez had been authorized to order the destruction of the tapes. “He had a green light to destroy them,” Mr. Bennett said.

Until their destruction, the tapes were stored in a safe in the C.I.A. station in the country where the interrogations took place, current and former officials said. According to one former senior intelligence official, the tapes were never sent back to C.I.A. headquarters, despite what the official described as concern about keeping such highly classified material overseas.

Top officials of the C.I.A’s clandestine service had pressed repeatedly beginning in 2003 for the tapes’ destruction, out of concern that they could leak and put operatives in both legal and physical jeopardy.

The only White House official previously reported to have taken part in the discussions was Ms. Miers, who served as a deputy chief of staff to President Bush until early 2005, when she took over as White House counsel. While one official had said previously that Ms. Miers’s involvement began in 2003, other current and former officials said they did not believe she joined the discussions until 2005.

Besides the Justice Department inquiry, the Congressional intelligence committees have begun investigations into the destruction of the tapes, and are looking into the role that officials at the White House and Justice Department might have played in discussions about them. The C.I.A. never provided the tapes to federal prosecutors or to the Sept. 11 commission, and some lawmakers have suggested that their destruction may have amounted to obstruction of justice.

Newsweek reported this week that John D. Negroponte, who was director of national intelligence at the time the tapes were destroyed, sent a memorandum in the summer of 2005 to Mr. Goss, the C.I.A. director, advising him against destroying the tapes. Mr. Negroponte left the job this year to become deputy secretary of state, and a spokesman for the director of national intelligence declined to comment on the Newsweek article.

The court hearing in the Guantánamo case, set for Friday in Washington by District Judge Henry H. Kennedy Jr. over the government’s objections, will be the first public forum in which officials submit to questioning about the tapes’ destruction.

There is no publicly known connection between the 16 plaintiffs — 14 Yemenis, an Algerian and a Pakistani — and the C.I.A. videotapes. But lawyers in several Guantánamo cases contend that the government may have used information from the C.I.A. interrogations to identify their clients as “unlawful combatants” and hold them at Guantánamo for as long as six years.

“We hope to establish a procedure to review the government’s handling of evidence in our case,” said David H. Remes, a lawyer representing the 16 detainees.

Jonathan Hafetz, who represents a Qatari prisoner at Guantánamo and filed a motion on Tuesday seeking a separate hearing, said the videotapes could well be relevant.

“If the government is relying on the statement of a witness under harsh interrogation, a videotape of the interrogation would be very relevant,” said Mr. Hafetz, of the Brennan Center for Justice at New York University law school.

In addition to the Guantánamo court filings, the American Civil Liberties Union has asked a federal judge to hold the C.I.A. in contempt of court for destroying the tapes. The A.C.L.U. says the destruction violated orders in a Freedom of Information Act case brought by several advocacy groups seeking materials related to detention and interrogation.

Tuesday, December 18, 2007

FBI withdrew from interrogation due to CIA’s ‘harsh tactics.’

From Think Progress:

In 2002, as the CIA used “harsh tactics” to interrogate al Qaeda operative Abu Zubaida, FBI agents involved in his detention increasingly “protested the aggressive methods that were used.” Reportedly, “one agent was so offended he threatened to arrest the CIA interrogators.” The Washington Post reports today that the tensions between the two agencies became so bad that FBI Director Robert S. Mueller III “eventually ordered the FBI team to withdraw from the interrogation” because of the tactics being used:

Tensions came to a head after FBI agents witnessed the use of some harsh tactics on Abu Zubaida, including keeping him naked in his cell, subjecting him to extreme cold and bombarding him with loud rock music. […]

FBI Director Robert S. Mueller III eventually ordered the FBI team to withdraw from the interrogation, largely because bureau procedures prohibit agents from being involved in such techniques, according to several officials familiar with the

Judge orders hearing on CIA torture tapes

A federal judge has ordered a hearing on whether the Bush administration violated a court order by destroying CIA interrogation videos of suspected terrorists.

U.S. District Judge Henry H. Kennedy rejected calls from the Justice Department to stay out of the matter. He ordered lawyers to appear before him Friday morning.

In June 2005, Kennedy ordered the administration to safeguard “all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay.”

FBI: Torturing Gave Us Nothing But "Crap"


From TPM
Abu Zubaydah was:

A) A high-ranking Al Qaeda operative who largely confounded U.S. interrogators with his literary and tactical genius until they submitted him to waterboarding and other forms of torture. After that, he provided key information that likely preempted future attacks.

B) A low-ranking and mentally ill Al Qaeda operative who provided valuable information under gentle questioning, but whose confessions made under torture were useless. Much of the threat information he provided was "crap."

A is the CIA's version (and the President's). B is the FBI's. And in today's Washington Post, Dan Eggen and Walter Pincus walk through the competing profiles. Zubaydah, remember, was one of the two detainees whose interrogations appeared on the destroyed CIA tapes.

It's clear off the bat that the version of events provided by John Kiriakou, the former CIA agent who launched something like a PR blitz last week, is not quite right. In his telling, Zubaydah held out until waterboarded; after only 35 seconds of that, he gave in and "from that day on, he answered every question."

By contrast, both CIA and FBI agents tell the Post that he provided valuable information before he was waterboarded. And there wasn't just one session: "Instead, [other former and current officials] said, harsh tactics used on him at a secret detention facility in Thailand went on for weeks or, depending on the account, even months."

And then you get to the real discrepancies.

A CIA agent says that Zubaydah was a "wily adversary" under questioning who seemed "very selective in what he protected and what he gave up."

Retired FBI agent Daniel Coleman, "who led an examination of documents after Abu Zubaida's capture in early 2002 and worked on the case," responded that Zubaydah was talking before he was waterboarded, but the CIA agents couldn't believe that he knew so little.

Coleman, in fact, emerges as an effective foil to Kiriakou (who, incidentally, participated in the capture of Zubaydah but wasn't present during the torture) in the piece. Coleman says that Zubaydah was a "safehouse keeper" for Al Qaeda who had suffered a serious head injury years earlier.

Zubaydah's mental instability was manifest in his diary, Coleman says, which was "written in three distinct personalities -- one younger, one older and one the same age as Abu Zubaida. The book was full of flowery and philosophical meanderings, and made little mention of terrorism or al-Qaeda."

Former CIA Director George Tenet, by contrast, writes in his book that Zubaydah used a "sophisticated literary device to express himself" in the diary.

And you get the impression that Tenet's reading is typical of the way the CIA agents tended to see Zubaydah:

Coleman said reports of Abu Zubaida's statements during his early, traditional interrogation were "consistent with who he was and what he would possibly know." He and other officials said that materials seized from Abu Zubaida's house and other locations, including names, telephone numbers and computer laptops, provided crucial information about al-Qaeda and its network.
But, Coleman and other law enforcement officials said, CIA officials concluded to the contrary that Abu Zubaida was a major player, and they saw any lack of information as evidence that he was resisting interrogation. Much of the threat information provided by Abu Zubaida, Coleman said, "was crap."

"There's an agency mind-set that there was always some sort of golden apple out there, but there just isn't, especially with guys like him," Coleman said.

Monday, December 17, 2007

"It smells like the coverup of the coverup."

From TPM:

That's Rep. Jane Harman's (D-CA) take. And Rep. Pete Hoekstra's (R-MI) wasn't any different.

In case you were already out the door late Friday afternoon when the news broke, the Justice Department, along with the CIA's inspector general, informed the House intelligence committee that they'd told the CIA not to cooperate with the committee's investigation into the CIA's torture tapes. Congress would just have to wait until the joint Justice Department-CIA probe was done (when? who knows) before they got any answers. The reason given was that it would "jeopardize" the Justice Department's investigation if the CIA gave the committee all the information it wanted while at the same time cooperating with the DoJ inquiry.

Chairman Silvestre Reyes (D-TX) and Hoekstra pronounced themselves "stunned." There's "no basis" for the DoJ to do that, they said. Harman, the former ranking member on the committee, said the same yesterday.

The ground is being laid for an ol' fashioned separation-of-powers showdown. Hoekstra went further, saying "I think we will issue subpoenas." With Republican backup, it should prove pretty easy for Reyes to pull the trigger. Hoekstra even singled out CIA Director Mike Hayden, promising to hold him "accountable."

And remember, Hoekstra and Reyes weren't the only lawmakers Michael Mukasey's Justice Department upset on Friday. Mukasey sent a friendly none-of-your-business letter in response to the Senate Judiciary Committee's questions about the CIA tapes. Chairman Patrick Leahy (D-VT) was "disappointed" and promised to make that clear when Mukasey appeared before his committee in the new year.

At this point, it's worth observing that Michael Mukasey has been on the job as attorney general barely a month and has already united both parties in Congress against him. That's some quick work.

But wait! The Department also argued Friday that a federal judge should not hold a hearing on the tapes, saying that a hearing would be "both unnecessary and potentially disruptive.” Lawyers representing 12 detainees at Guantanamo had asked for one. Is a three branches free-for-all in the works?

Fact-checking the FISA debate.

Sen. Russ Feingold’s office has put out a fact sheet on the Dodd-Feingold amendment to strike retroactive immunity. One common myth:

Myth: The bill’s provision is necessary to extend immunity to telephone companies that responded in good faith to a government request.

Reality: Existing law already immunizes telephone companies that respond in good faith to a government request, as long as that request meets certain clearly spelled-out statutory requirements. This carefully designed provision protects the companies and Americans’ privacy by encouraging the companies to comply with legitimate requests but not to comply with requests that don’t meet the requirements laid out in the law.

Interrogation crimes worse than the cover-up

Who done it?

Sometime late in 2005, the CIA destroyed videotapes showing hundreds of hours of interrogations of two top al Qaeda suspects -- while continuing to imply to the 9/11 commission and the courts that no such interrogation tapes ever existed.

What was on those tapes that made CIA officials so eager to destroy them, instead of just selling them to the producers of 24 and retiring in comfort? And who authorized (or knew of) their destruction?

Not our national Decider, who insists, via White House spokeswoman Dana Perino, that he didn't decide anything whatsoever, because he has ''no recollection of being made aware of the tapes or their destruction.'' That's in contrast to former White House Counsel Harriet E. Miers, who apparently knew all about the tapes but didn't bother to share the news with her boss.

Unidentified administration sources assure us, though, that Miers recommended that the CIA preserve the tapes. (It's not hard to imagine her words: ``Gee, if these interrogation tapes just happened to be lost or destroyed, it would sure make it tough for anyone to bring future war crimes or torture prosecutions against anyone in this administration, so I hope the CIA will take really good care of those tapes.'')

Over at the CIA, another unidentified ''former official'' said no one at the White House ever ordered the CIA not to destroy the tapes -- at least not in so many words: 'They never told us, `Hell, no,' '' that official told The New York Times. And current and former officials said that the CIA's acting general counsel, John Rizzo, was in on the whole discussion about the tapes. Still another anonymous ''official'' asserted that Rizzo was out of the loop and ''angry'' at the tapes' destruction.

When it was his turn to pass the buck, current CIA Director Michael V. Hayden helpfully reminded Congress that he wasn't even at the CIA in 2005 and therefore had no idea who ordered that the tapes be destroyed, although he naturally intends to look into it.

As the president told ABC News, ''It will be interesting to know what the true facts are.'' Uh-huh. But in many ways, the question of who ordered that the tapes be destroyed completely misses the point. It probably won't be all that difficult to answer that question -- congressional inquiries are fairly good at that sort of thing. We may even see some prosecutions come out of this. Those who want heads to roll for this probably will get their way.

But so what? In this case, as blogger and Georgetown professor Marty Lederman reminds us: ''The cover-up is not worse than the crime, and they knew it. Those tapes must have depicted pretty gruesome evidence of serious criminal conduct.'' Waterboarding? For sure, according both to news accounts and to former CIA operative John Kiriakou. Other ''enhanced'' forms of interrogation that, to the unenhanced eye, would look indistinguishable from plain torture? It's a pretty good bet. If I had to guess, the tapes were destroyed because obstruction-of-justice charges are no big deal compared with war-crimes charges.

After we find out who authorized the destruction of the tapes, the true who-done-it will remain: Who gave the CIA the green light to use interrogation methods that the agency surely suspected were criminal? Who decided to let the United States adopt the interrogation methods of a hundred tin-pot dictators?

Answering that one will be far more uncomfortable. It would be nice to find a scapegoat (Aha! It was Dick Cheney!), but the unpleasant truth is that the blame is pretty widespread.

So . . . who really done it?

Cheney, presumably, and the sinister little gnomes on his staff, and the checked-out Decider, who either knew and didn't care, or didn't care to know. And the CIA leadership and a whole cadre of operatives, who were willing to try a long list of discredited shortcuts they could borrow from our enemies. And blame the conservative punditocracy, which eagerly defended enhanced interrogation methods. And let's not forget the GOP leadership in Congress, which gave the administration a whole book of blank checks.

But save some blame for House Speaker Nancy Pelosi, who apparently uttered not a word of dismay when briefed in 2002 on enhanced interrogation methods that included waterboarding, and for quite a few other congressional Democrats as well, who thought that ignoring and overlooking administration criminality was a legitimate form of congressional oversight. And we can blame ourselves, too, collectively. After all, we're the nation that made 24 a hit show.

How does a democracy come to adopt a policy of torturing detainees? To paraphrase Hillary Clinton, it takes a village.

Sunday, December 16, 2007

Why I quit as chief prosecutor at Guantánamo

BY MORRIS D. DAVIS
I was the chief prosecutor for the military commissions at Guantánamo Bay, Cuba, until Oct. 4, the day I concluded that full, fair and open trials were not possible under the current system. I resigned on that day because I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly.

In my view -- and I think most lawyers would agree -- it is absolutely critical to the legitimacy of the military commissions that they be conducted in an atmosphere of honesty and impartiality. Yet the political appointee known as the ''convening authority'' -- a title with no counterpart in civilian courts -- was not living up to that obligation.

In a nutshell, the convening authority is supposed to be objective -- not predisposed for the prosecution or defense -- and must make important decisions at various stages in the process. The convening authority decides which charges filed by the prosecution go to trial and which are dismissed, chooses who serves on the jury, decides whether to approve requests for experts and reassesses findings of guilt and sentences, among other things.

• Earlier this year, Susan Crawford was appointed by the U.S. secretary of defense to replace Maj. Gen. John Altenburg as the convening authority. Altenburg's staff had kept its distance from the prosecution to preserve its impartiality. But Crawford had her staff assessing evidence before the filing of charges, directing the prosecution's pretrial preparation of cases (which began while I was on medical leave), drafting charges against people who were accused and assigning prosecutors to cases, among other things.

How can you direct someone to do something -- use specific evidence to bring specific charges against a specific person at a specific time, for instance -- and later make an impartial assessment of whether they behaved properly? Intermingling convening authority and prosecutor roles perpetuates the perception of a rigged process stacked against the accused.

• The second reason I resigned is that I believe even the most perfect trial in history will be viewed with skepticism if it is conducted behind closed doors. Telling the world, ''Trust me, you would have been impressed if only you could have seen what we did in the courtroom'' will not bolster our standing as defenders of justice. Getting evidence through the classification review process to allow its use in open hearings is time-consuming, but it is time well spent.

Crawford, however, thought it unnecessary to wait because the rules permit closed proceedings. There is no doubt that some portions of some trials must be closed to protect classified information, but that should be the last option after exhausting all reasonable alternatives. Transparency is critical.

• Finally, I resigned because of two memos signed by U.S. Deputy Secretary of Defense Gordon England that placed the chief prosecutor -- that was me -- in a chain of command under Defense Department General Counsel William J. Haynes. Haynes was a controversial nominee for a lifetime appointment to the 4th U.S. Circuit Court of Appeals, but his nomination died in January 2007, in part because of his role in authorizing the use of the aggressive interrogation techniques some people call torture.

I had instructed the prosecutors in September 2005 that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned. Haynes and I have different perspectives and support different agendas, and the decision to give him command over the chief prosecutor's office cast a shadow over the integrity of military commissions. I resigned a few hours after I was informed of Haynes' place in my chain of command.

The Military Commissions Act provides a foundation for fair trials, but some changes are clearly necessary. I was confident in full, fair and open trials when Gen. Altenburg was the convening authority and Brig. Gen. Tom Hemingway was his legal advisor. Collectively, they spent nearly 65 years in active duty, and they were committed to ensuring the integrity of military law. They acted on principle rather than politics.

The first step, if these are truly military commissions and not merely a political smoke screen, is to take control out of the hands of political appointees like Haynes and Crawford and give it back to the military.

Only one case completed

The president first authorized military commissions in November 2001, more than six years ago, and the lack of progress is obvious. Only one war-crime case has been completed. It is time for the political appointees who created this quagmire to let go.

U.S. Sens. John McCain and Lindsey Graham have said that how we treat the enemy says more about us than it does about him. If we want these military commissions to say anything good about us, it's time to take the politics out of military commissions, give the military control over the process, and make the proceedings open and transparent.

U.S. Air Force Col. Morris D. Davis is the former chief prosecutor for the Office of Military Commissions. The opinions expressed are his own and do not represent the views of the Department of Defense or the Department of the Air Force.

Lawmakers say not deterred on CIA probe

U.S. Congress members vowed on Sunday to investigate the CIA's destruction of videotapes depicting harsh interrogation of terrorism suspects, despite Justice Department advice that the agency not cooperate.

The top Republican member of the House of Representatives Intelligence Committee and a leading Democratic voice on security joined in a blistering attack on the CIA and on the complex network of U.S. intelligence agencies in general.

"We want to hold the (intelligence) community accountable for what's happened to these tapes," Republican U.S. Rep. Pete Hoekstra of Michigan said on "Fox News Sunday." "We will issue subpoenas ... Our investigation should move forward.

He said he had no confidence in U.S. intelligence leadership. "You've got a community that's incompetent. They are arrogant. And they are political. And they don't believe that they are accountable to anybody. They don't believe that they're accountable to the president."

Hoekstra said CIA Director Gen. Michael Hayden should answer for what he called misleading statements by the agency during his term, which began in 2006 after the tapes had been destroyed.

It is believed that the tapes, destroyed in 2005, depicted the use of a simulated drowning technique called waterboarding.

The United States has been widely criticized by European allies and human rights groups for methods like waterboarding, in which prisoners are made to fear that they are drowning. President George W. Bush has repeatedly said the United States does not torture.

The disclosure this month that the CIA destroyed lengthy recordings of the 2002 interrogations of two top al Qaeda suspects has prompted furious denunciations from lawmakers and human rights advocates.
"It smells like the cover-up of the cover-up," said Democratic U.S. Rep. Jane Harman of California, chairwoman of the House Homeland Security subcommittee on intelligence.

The Justice Department, under new Attorney General Michael Mukasey, whose contentious confirmation focused on his refusal to call waterboarding illegal torture, has launched a preliminary videotape probe in conjunction with the CIA's inspector general.

But the Democratic-led Congress has launched its own probes. The Justice Department last week urged the CIA not to cooperate, saying it could interfere with the department's investigation.

Mukasey also rejected a congressional request for information about the Justice Department's probe.

"I warned them not to destroy the videotapes," Harman said on the Fox program. "I sent them a letter in 2003, and they did it anyway and they didn't tell us."

"Congress does absolutely need to exercise its constitutional authority," to investigate, she said. Harman also cited concerns about the CIA inspector general's ability to participate in fair investigation.

In a separate court filing, the Justice Department last week urged a U.S. district court judge not to investigate the videotapes.

The judge in 2005 had ordered the government to preserve information on prisoner mistreatment at the U.S. Naval facility at Guantanamo Bay, Cuba. But the Justice Department said there was no evidence the prisoners believed to be on the videotapes, including suspected al Qaeda lieutenant Abu Zubaydah, were at Guantanamo at the time.

The CIA said it destroyed the tapes lawfully and did so out of concern for the safety of agents involved in the negotiations if the recordings were ever made public.

Wider Spying Fuels Aid Plan for Telecom Industry

Read the rest here FRUQTADA

The fear of torture

As we all now know, the CIA has destroyed hundreds of hours of video tapes of the likely 2002 water torture of three men, allegedly involved with al-Qaida, by its agents. Although the CIA has not acknowledged that the videos are of water torture - often known euphemistically as “waterboarding” - a former CIA agent, John Kiriakou, has said that the waterboarding was authorised from the highest levels of the Bush administration.

Now we are seeing the usual Washington scrambling and casting of blame after another serious revelation of torture. Most of the official focus seems to be on who made the decision to approve the destruction and not on the underlying issue: the fact that the Bush administration, with the apparent consent of some of the congressional leadership, sanctioned torture.

This endorsement was criminal under both US law and international law - and that opens high level administration officials to prosecution, whether in the US or abroad.

This fear of prosecution for torture is the best explanation as to why these tapes were destroyed. They would have been vivid and compelling example of the violation of laws against torture - laws that in the US carry a life sentence or the death penalty if the victim is killed. Laws in most European countries make such violations of the convention against torture a universal crime, prosecutable no matter where the torture occurred or where the torturer resides.

Another explanation for the destruction might be the anger the footage could engender in the Muslim world if they were revealed publicly. However, the chances for public revelation were slim. Unlike the Abu Ghraib prison photos, these tapes were apparently only in the possession of the CIA. That explanation lets the CIA and the Bush administration off the hook much too easily and ignores evidence that fear of prosecution was likely critical in the destruction decision.

CIA head Michael Hayden’s explanation is patently absurd: he said that he feared for the safety of the CIA agents involved if al-Qaida saw their identities. Apart from the ability to shadow out the faces, what are the real chances that someone in al-Qaida would see the tape and be able to identify and track down an agent?

The fear of prosecution best explains the destruction of the tapes. That fear has governed numerous actions of the Bush administration regarding the torture program. The earliest legal memos from the Bush administration, as long ago as January 2002, were explicit on this issue and advised not applying the Geneva conventions as a means of avoiding prosecutions that could follow from their violation. The McCain amendment builds into its prohibition on cruel, inhuman, and degrading treatment a defense for authorized interrogation practices and those that relied upon “the advice of counsel.” The Military Commission Act of 2006, passed after the destruction of the tapes, forgives past violations of the Geneva conventions by officials involved in the torture program. So we have Congress, and not just the Bush administration, attempting to absolve clear violations of law.

This explanation also makes sense considering the risk that arguably was taken by destroying the tapes: they were relevant to a number of proceedings including the Guantanamo federal cases, criminal trials, the 9/11 commission and a federal freedom of information act case. Hayden tries to claim otherwise, saying they were not relevant to “any internal, legislative, or judicial inquires.” Yet, orders had been entered in those cases prior to the destruction mandating preservation or release of such information.

Now, those responsible for the destruction are facing contempt of court and possibly other sanctions. The tape destroyers and their superiors had to be very worried to run this risk. Unfortunately, we will never know what these tapes show. It is doubtful that anyone would question that waterboarding was torture if the tapes were seen. The tapes may also have much higher level officials observing the water torture then we now realize. Former US secretary of defence Donald Rumsfeld was involved in the torture of Guantanamo detainee Mohamed al-Qahtani, and was likely involved in others.

So why, if there was such a fear of prosecution by officials, did they video hundreds of hours of these interrogations in the first place? Hayden says it did so to insure that the CIA proceeded “in accord with established legal and policy guidelines.” This seems farfetched. Would the CIA or the Bush administration take the huge risk of making such videos when the tapes could lead so directly to a prosecution?

There is another, more plausible, explanation. It is likely the tapes, or some version of them, were to be used as a threat against those who were waterboarded and others whom the CIA or US officials wanted to interrogate. Videos and photographs of the humiliation and powerlessness of those tortured could be used as threats to get other detainees to “cooperate” and could even make informants of some detainees to be released - under threat that their “cooperation” or “humiliation” could be exposed. This also explains why it took so long to destroy the tapes. If they were just done to insure compliance with guidelines, why not destroy them a short time later?

In the end for the CIA and the administration the destruction of the tapes, despite the fallout, was better then the alternative of the potential criminal prosecution of both CIA and high level executive officials. The front page scandal we are dealing with is about the destruction of the tapes and not the criminal conduct that underlies them.

The Bush administration can and will weather, as they have before, the fallout and finger pointing from this scandal. A few congressional inquiries and some internal investigations from Congress, possibly a scalp or two of a mid-level official, and that may well be the end of the matter. This outcome is more or less assured - in part because of Congressional involvement in tacitly approving the techniques and possibly the destruction itself - because the best evidence no longer exists.