IRAQ
12/23/04 <link>
War Crimes
The Washington Post's editorial board
seems to have finally woken up, given their latest
editorial (via Buzzflash) titled "War Crimes". Before we go
to that editorial though, some well deserved kudos to ACLU for this
(bold text is my emphasis):
A
document released for the first time today by the American Civil
Liberties Union suggests that President Bush issued an Executive
Order authorizing the use of inhumane interrogation methods against
detainees in Iraq. Also released by the ACLU today are a slew of
other records including a December 2003 FBI e-mail that characterizes
methods used by the Defense Department as "torture" and a June
2004 "Urgent Report" to the Director of the FBI that raises
concerns that abuse of detainees is being covered up.
...
The two-page
e-mail that references an Executive Order states that the President
directly authorized interrogation techniques including sleep
deprivation, stress positions, the use of military dogs, and
"sensory deprivation through the use of hoods, etc." The
ACLU is urging the White House to confirm or deny the existence of such
an order and immediately to release the order if it exists. The FBI
e-mail, which was sent in May 2004 from "On Scene
Commander--Baghdad" to a handful of senior FBI officials, notes
that the FBI has prohibited its agents from employing the techniques
that the President is said to have authorized.
Another
e-mail, dated December 2003, describes an incident in which Defense
Department interrogators at Guantánamo Bay impersonated FBI agents
while using "torture techniques" against a detainee. The
e-mail concludes "If this detainee is ever released or his story
made public in any way, DOD interrogators will not be held accountable
because these torture techniques were done [sic] the ‘FBI’
interrogators. The FBI will [sic] left holding the bag before the
public."
Some of the torture related emails that
the ACLU managed to obtain are here.
Now to the Washington Post editorial.
War Crimes
THANKS TO a lawsuit by
the American Civil Liberties Union and other human rights groups,
thousands of pages of government documents released this month have
confirmed some of the painful truths about the abuse of foreign
detainees by the U.S. military and the CIA -- truths the Bush
administration implacably has refused to acknowledge. Since the
publication of photographs of abuse at Iraq's Abu Ghraib prison in the
spring the administration's whitewashers -- led by Defense Secretary
Donald H. Rumsfeld -- have contended that the crimes were carried out by
a few low-ranking reservists, that they were limited to the night shift
during a few chaotic months at Abu Ghraib in 2003, that they were
unrelated to the interrogation of prisoners and that no torture occurred
at the Guantanamo Bay prison where hundreds of terrorism suspects are
held. The new documents establish beyond any doubt that every part of
this cover story is false.
Though they represent
only part of the record that lies in government files, the documents
show that the abuse of prisoners was already occurring at Guantanamo in
2002 and continued in Iraq even after the outcry over the Abu Ghraib
photographs. FBI agents reported in internal e-mails and memos about
systematic abuses by military interrogators at the base in Cuba,
including beatings, chokings, prolonged sleep deprivation and
humiliations such as being wrapped in an Israeli flag. "On a couple
of occasions I entered interview rooms to find a detainee chained hand
and foot in a fetal position to the floor, with no chair, food or
water," an unidentified FBI agent wrote on Aug. 2, 2004. "Most
times they had urinated or defecated on themselves, and had been left
there for 18 to 24 hours or more." Two defense intelligence
officials reported seeing prisoners severely beaten in Baghdad by
members of a special operations unit, Task Force 6-26, in June. When
they protested they were threatened and pictures they took were
confiscated.
Other documents detail
abuses by Marines in Iraq, including mock executions and the torture of
detainees by burning and electric shock. Several dozen detainees have
died in U.S. custody. In many cases, Army investigations of these crimes
were shockingly shoddy: Officials lost records, failed to conduct
autopsies after suspicious deaths and allowed evidence to be
contaminated. Soldiers found to have committed war crimes were excused
with noncriminal punishments. The summary of one suspicious death of a
detainee at the Abu Ghraib prison reads: "No crime scene exam was
conducted, no autopsy conducted, no copy of medical file obtained for
investigation because copy machine broken in medical office."
Some of the abuses can be
attributed to lack of discipline in some military units -- though the
broad extent of the problem suggests, at best, that senior commanders
made little effort to prevent or control wrongdoing. But the documents
also confirm that interrogators at Guantanamo believed they were
following orders from Mr. Rumsfeld. One FBI agent reported on May 10
about a conversation he had with Guantanamo's commander, Maj. Gen.
Geoffrey D. Miller, who defended the use of interrogation techniques the
FBI regarded as illegal on the grounds that the military "has their
marching orders from the Sec Def." Gen. Miller has testified under
oath that dogs were never used to intimidate prisoners at Guantanamo, as
authorized by Mr. Rumsfeld in December 2002; the FBI papers show
otherwise.
The Bush administration
refused to release these records to the human rights groups under the
Freedom of Information Act until it was ordered to do so by a judge. Now
it has responded to their publication with bland promises by spokesmen
that any wrongdoing will be investigated. The record of the past few
months suggests that the administration will neither hold any senior
official accountable nor change the policies that have produced this
shameful record. Congress, too, has abdicated its responsibility under
its Republican leadership: It has been nearly four months since the last
hearing on prisoner abuse. Perhaps intervention by the courts will
eventually stem the violations of human rights that appear to be ongoing
in Guantanamo, Iraq and Afghanistan. For now the appalling truth is that
there has been no remedy for the documented torture and killing of
foreign prisoners by this American government.
10/7/04_2 <link>
Iraq for Dummies ©
Given the joke that the Bush administration has
made out of American lives and American security (especially in Iraq),
it's time for us all to drink some Kool-aid and check out Iraq
for Dummies ©. Now!
10/7/04_1 <link>
The real state of Iraq
Since President Bush and Vice President Dick
Cheney are in fantasyland most of the time, it's probably appropriate to
remind
ourselves about the real state of Iraq these days.
(Via Campaign
Extra) Wall Street Journal reporter Farnaz Fassihi wrote this
candid letter to her friends back home in the U.S. (which was never
meant to be published) [she has since been asked to take
a "scheduled vacation"] :
From: [Wall Street
Journal reporter] Farnaz Fassihi
Subject: From Baghdad
Being a foreign
correspondent in Baghdad these days is like being under
virtual house arrest. Forget about the reasons that lured me to this
job: a chance to see the world, explore the exotic, meet new people in
far away lands, discover their ways and tell stories that could make a
difference.
Little by little,
day-by-day, being based in Iraq has defied all those reasons. I am house
bound. I leave when I have a very good reason to and a scheduled
interview. I avoid going to people's homes and never walk in the
streets. I can't go grocery shopping any more, can't eat in restaurants,
can't strike a conversation with strangers, can't look for stories,
can't drive in any thing but a full armored car, can't go to scenes of
breaking news stories, can't be stuck in traffic, can't speak English
outside, can't take a road trip, can't say I'm an American, can't linger
at checkpoints, can't be curious about what people are saying, doing,
feeling. And can't and can't. There has been one too many close calls,
including a car bomb so near our house that it blew out all the windows.
So now my most pressing concern every day is not to write a kick-ass
story but to stay alive and make sure our Iraqi employees stay alive. In
Baghdad I am a security personnel first, a reporter second.
It's hard to pinpoint
when the 'turning point' exactly began. Was it April
when the Fallujah fell out of the grasp of the Americans? Was it when
Moqtada and Jish Mahdi declared war on the U.S. military? Was it when
Sadr City, home to ten percent of Iraq's population, became a nightly
battlefield for the Americans? Or was it when the insurgency began
spreading from isolated pockets in the Sunni triangle to include most of
Iraq? Despite President Bush's rosy assessments, Iraq remains a
disaster. If under Saddam it was a 'potential' threat, under the
Americans it has been transformed to 'imminent and active threat,' a
foreign policy failure bound to haunt the United States for decades to
come.
Iraqis like to call this
mess 'the situation.' When asked 'how are thing?' they reply: 'the
situation is very bad."
What they mean by
situation is this: the Iraqi government doesn't control most Iraqi
cities, there are several car bombs going off each day around the
country killing and injuring scores of innocent people, the country's
roads are becoming impassable and littered by hundreds of landmines and
explosive devices aimed to kill American soldiers, there are
assassinations, kidnappings and beheadings. The situation, basically,
means a raging barbaric guerilla war. In four days, 110 people died and
over 300 got injured in Baghdad alone. The numbers are so shocking that
the ministry of health -- which was attempting an exercise of public
transparency by releasing the numbers -- has now stopped disclosing
them.
Insurgents now attack
Americans 87 times a day.
A friend drove thru the
Shiite slum of Sadr City yesterday. He said young men were openly
placing improvised explosive devices into the ground. They melt a
shallow hole into the asphalt, dig the explosive, cover it with dirt and
put an old tire or plastic can over it to signal to the locals this is
booby-trapped. He said on the main roads of Sadr City, there were a
dozen landmines per every ten yards. His car snaked and swirled to avoid
driving over them. Behind the walls sits an angry Iraqi ready to
detonate them as soon as an American convoy gets near. This is in Shiite
land, the population that was supposed to love America for liberating
Iraq.
For journalists the
significant turning point came with the wave of abduction and
kidnappings. Only two weeks ago we felt safe around Baghdad because
foreigners were being abducted on the roads and highways between towns.
Then came a frantic phone call from a journalist female friend at 11
p.m. telling me two Italian women had been abducted from their homes in
broad daylight. Then the two Americans, who got beheaded this week and
the Brit, were abducted from their homes in a residential neighborhood.
They were supplying the entire block with round the clock electricity
from their generator to win friends. The abductors grabbed one of them
at 6 a.m. when he came out to switch on the generator; his beheaded body
was thrown back near the neighborhoods.
The insurgency, we are
told, is rampant with no signs of calming down. If any thing, it is
growing stronger, organized and more sophisticated every day. The
various elements within it-baathists, criminals, nationalists and Al
Qaeda-are cooperating and coordinating.
I went to an emergency
meeting for foreign correspondents with the military and embassy to
discuss the kidnappings. We were somberly told our fate would largely
depend on where we were in the kidnapping chain once it was determined
we were missing. Here is how it goes: criminal gangs grab you and sell
you up to Baathists in Fallujah, who will in turn sell you to Al Qaeda.
In turn, cash and weapons flow the other way from Al Qaeda to the
Baathisst to the criminals. My friend Georges, the French journalist
snatched on the road to Najaf, has been missing for a month with no word
on release or whether he is still alive.
America's last hope for a
quick exit? The Iraqi police and National Guard
units we are spending billions of dollars to train. The cops are being
murdered by the dozens every day-over 700 to date -- and the insurgents
are infiltrating their ranks. The problem is so serious that the U.S.
military has allocated $6 million dollars to buy out 30,000 cops they
just trained to get rid of them quietly.
As for reconstruction:
firstly it's so unsafe for foreigners to operate that
almost all projects have come to a halt. After two years, of the $18
billion Congress appropriated for Iraq reconstruction only about $1
billion or so has been spent and a chuck has now been reallocated for
improving security, a sign of just how bad things are going here.
Oil dreams? Insurgents
disrupt oil flow routinely as a result of sabotage
and oil prices have hit record high of $49 a barrel. Who did this war
exactly benefit? Was it worth it? Are we safer because Saddam is holed
up and Al Qaeda is running around in Iraq?
Iraqis say that thanks to
America they got freedom in exchange for
insecurity. Guess what? They say they'd take security over freedom any
day, even if it means having a dictator ruler.
I heard an educated Iraqi
say today that if Saddam Hussein were allowed to run for elections he
would get the majority of the vote. This is truly sad.
Then I went to see an
Iraqi scholar this week to talk to him about
elections here. He has been trying to educate the public on the
importance of voting. He said, "President Bush wanted to turn Iraq
into a democracy that would be an example for the Middle East. Forget
about democracy, forget about being a model for the region, we have to
salvage Iraq before all is lost."
One could argue that Iraq
is already lost beyond salvation. For those of us on the ground it's
hard to imagine what if any thing could salvage it from its violent
downward spiral. The genie of terrorism, chaos and mayhem has been
unleashed onto this country as a result of American mistakes and it
can't be put back into a bottle.
The Iraqi government is
talking about having elections in three months while half of the country
remains a 'no go zone'-out of the hands of the government and the
Americans and out of reach of journalists. In the other half, the
disenchanted population is too terrified to show up at polling stations.
The Sunnis have already said they'd boycott elections, leaving the stage
open for polarized government of Kurds and Shiites that will not be
deemed as legitimate and will most certainly lead to civil war.
I asked a 28-year-old
engineer if he and his family would participate in the Iraqi elections
since it was the first time Iraqis could to some degree elect a
leadership. His response summed it all: "Go and vote and risk being
blown into pieces or followed by the insurgents and murdered for
cooperating with the Americans? For what? To practice democracy? Are you
joking?"
-Farnaz
8/4/04 <link>
Iraq - after so-called "sovereignty
transfer" isn't doing better, and that's not surprising - what's
worse, it may be getting worse
This much is clear. As long as this
administration is in power, it is going to be almost impossible to get
the worldwide support needed to increase the size
of the military that polices Iraq. Without a much larger, trained
security force, it is going to be very difficult to
stabilize Iraq and actually enable a path towards democracy. Real
democracy in Iraq is becoming a more and more distant fantasy every day
that this administration remains in power. That is a sad reality.
Today, I will simply quote from this article by Ken
Dilanian in the Philadelphia Inquirer (via Buzzflash) - someone
who previously criticized the media for being too negative on the Iraq
coverage. Here is a glimpse of reality (incidentally
54 American soldiers died in Iraq in July, compared to 42 in June - I
suspect Dilanian is quoting only combat casualties):
The situation in Iraq right now is
not as bad as the news media are portraying it to be. It's worse.
By Ken Dilanian
Inquirer Staff Writer
A kind of violence fatigue has
descended over news coverage of Iraq. Car bombings that would have made
the front page a year ago get scant mention these days.
Assassinations and kidnappings have
become so common that they have lost their power to shock. More U.S.
soldiers died in July (38) than in June (26), but that didn't make the
nightly newscasts, either.
The U.S.-led effort to restore basic
services has become a story of missed goals and frustrations. Hoped-for
foreign investment in Iraq's economy hasn't materialized - what company
is going to risk seeing its employees beheaded on television?
Simply by staving off stability and
prosperity, the insurgents are winning.
These are painful observations for me
to make, because in early April, I wrote on this page that the media had
been underplaying the good things happening in Iraq, and were missing
the potential for a turnaround.
I still believe the first part. But
when I returned to Iraq in June, I found that the situation had
deteriorated so dramatically that a lot of those good things have become
irrelevant.
As for the turnaround, I couldn't have
been more wrong.
Don't take my word for it: Listen to
Sgt. Maj. John Jones, a First Infantry Division soldier who recently
told my colleague Tom Lasseter that he grows annoyed every time he hears
politicians and journalists on television talking about Iraq.
"When people come over here,
where do they stay? In the Green Zone. I call it the Safe Zone," he
said, referring to the heavily fortified area in Baghdad where most U.S.
officials live and work. "They miss the full picture."
In the spring, I wrote: "I have
seen a lot of good that has come of this painful expenditure of blood
and treasure - very real progress that has made life better for some
Iraqis, and promises to make it exponentially better, over time."
The article generated a flood of
e-mail from readers who seemed to be thirsting for upbeat news out of
Iraq, convinced that the media were hiding it from them.
"I am very happy to see The
Inquirer allow a 'positive' article on the Iraq rebuilding effort to
take up space in their pages," one person wrote. "I knew there
was more to the situation than just what the sound bites allow in a
quick TV flash."
I still believe the U.S.-led effort in
Iraq is accomplishing many good things, most of which get no publicity.
And I still think it's too early to abandon hope that a stable and
democratic Iraq will emerge from this crucible.
But I learned this summer that the
insurgency has been far more successful than I would have imagined at
sowing instability and halting progress. Most Iraqis aren't seeing the
improvements they had hoped for, and they're not blaming the guerillas -
they're blaming the Americans. Sovereignty seems to have had zero effect
on this equation.
In March, as I was writing, the $18.4
billion reconstruction effort was just getting off the ground. I had sat
in on a briefing in which a senior U.S. official confidently predicted
that, by June, thanks to American rebuilding efforts, Iraq would have
electricity 18 hours a day throughout the country.
I called that promise
"credible," and argued that, once Iraqis could see that kind
of progress from the rebuilding program, perhaps the insurgency would
abate.
I just couldn't conceive, given how
severely the lack of electricity undermines everything they are trying
to achieve, that the Americans would publicly set a goal and then fail
to meet it.
But that's just what they did.
It's now August, and that goal still
hasn't been reached. Throughout much of the country, the power goes off
for half the day or more. That has meant another summer of babies
sweltering in 120-degree apartments, of factories that can't run, of
despair turning to hatred.
One reason the goal was missed is that
the uprising by Muqtada al-Sadr's militants - and the since-abandoned
Marine effort to pacify Fallujah - ushered in the worst violence since
the United States and its allies invaded Iraq last year.
That explosion of insecurity upended
another observation I made in that April article. I said the insurgents
thus far had not been able to substantially undermine the rebuilding
effort.
Well, in April and May, that changed.
U.S. contractors hunkered down or pulled out, supply lines were
attacked, and the reconstruction sputtered to a near halt. The Sunni
triangle has always been risky, but now, so is the Shiite south.
Those battles are over, but the
results were mixed, at best. The First Armored Division chased Sadr's
men from several southern cities, yet he and his armed followers remain
active in Najaf and parts of Baghdad, a force for instability. The
Marines backed off in Fallujah, and that city is now a safe haven for
foreign terrorists and Iraqi insurgents.
Some reconstruction work has resumed
in the last two months, but continued attacks have driven up security
costs astronomically. The current wave of kidnappings may halt the
rebuilding again. Security issues pervade everything.
Take telephones. In my April piece, I
said Iraq's new mobile-phone network was an unheralded success story
that has changed the lives of many average Iraqis, at least in Baghdad.
That's still somewhat true.
But the service has degraded
considerably in the last few months because the network is badly
overloaded. Why hasn't the provider, Iraqna, expanded it?
"There was a delay in receiving
the equipment. Also, they depended on foreign engineers," Iraq's
communication minister explained recently.
"Those engineers were pulled out
of Iraq because of security."
Similar problems plague the entire
reconstruction effort, which is moving so slowly that the Bush
administration is thinking of overhauling it. A near-total lack of
visible progress has prompted even the most pro-Western Iraqis to lose
faith in the capabilities - and worse, the intentions - of the United
States.
It's amazing how many Iraqis are
convinced that the Americans are withholding electricity to punish them.
Absurd, sure - but people who think like that are more inclined to plant
a bomb, pick up a gun, or at least look the other way when their
neighbor does.
That's one reason large swaths of the
country that once were safe are now considered danger zones. I felt that
myself, driving south to Karbala a few weeks ago in an unarmored car
with no guards or weapons. There is where the two Polish journalists
were killed, my driver noted. There's where the CNN guys got hit.
Earlier this year, U.S. journalists
were able to drive to Fallujah and roam the city asking questions. One
of the last Western reporters who tried that in May ended up writing
about how it felt when machine-gun fire raked his vehicle. Only the
armor plating saved him.
Those First Division soldiers know far
more than any reporter does about such hazards. They spend their days
dodging bullets and roadside bombs in insurgent-filled Al-Anbar
province, west of Baghdad.
Staff Sgt. Sheldon Rivers doesn't
speak in the nuanced language of a television talking head. The full
picture as he and his buddies see it is much more practical - and much
more telling:
"I'm tired of every time we go
out the gate, someone tries to kill me."
6/14/04 <link>
Torture, Ltd. (or shall I say, tritely,
Torturegate)
Via Atrios, I came across Michael Froomkin's Disourse.net.
Michael is doing a great service to the online community with his
dissections of the various Bush administration Torture Memos.
In response to the latest revelations in the Washington
Post, Michael has posted a somewhat lengthy
analysis, which is reproduced below. Before reading that, though,
nothing better captures how this administration has degraded what this
country stands for and how it has shown itself to be incapable of having
any moral credibility, than this Jay Leno joke which Michael reproduces:
Ultimately, the best legal commentary
on this memo may belong to Professor
Jay Leno:
According to the “New York
Times”, last year White House lawyers concluded that President Bush
could legally order interrogators to torture and even kill people in
the interest of national security - so if that’s legal, what the
hell are we charging Saddam Hussein with?
Anyway, here is Michael's post reproduced in full,
because it also captures the essence of some of the other developments in
the past few weeks.
OLC's Aug. 1, 2002
Torture Memo ("the Bybee Memo")
The Washington Post has placed
online the full
text of an August 1, 2002 memo from the Justice Department’s
Office of Legal Counsel (OLC) to White House Legal Counsel Alberto R.
Gonzales.
A few words of context before
substance. The OLC
is sometimes called “the Attorney General’s Lawyer”. It’s an
elite bureau in the Justice Dept. staffed by very very intelligent and
highly credentialed people. Its primary function is to give opinions on
matters of constitutionality regarding interdepartmental and
inter-branch relations, and to opine on the constitutionality of pending
legislation. By all accounts working at OLC is
one of the most interesting jobs in government if you are interested in
constitutional law or the working of government.
In August 2002, the head of the OLC
was Jay
Bybee, now a sitting
judge on the 9th Circuit. His signature appears on page 46 of this memo.
White House Counsel Alberto Gonzales,
who requested this memo, is not the head of the OLC.
The White House Counsel is part of the Office of the President, and the
Counsel is the President’s staff lawyer, just as the Attorney General
is the President’s institutional lawyer; neither of these people
however is the President’s personal
lawyer.
OK. On to
the substance.
The memo is about what limits on the
use of force (“standards of permissible conduct”) for interrogations
conducted “abroad” are found in the Convention
Against Torture and Other Cruel, Inhuman and Degrading Treatment or
Punishment ( Torture Convention) “as implemented” by 18
USC §§ 2340-2340A (the Torture statute).
The memo concludes that the
restrictions are very limited — that only acts inflicting and
“specifically intended to inflict severe pain or suffering”, whether
mental or physical, are prohibited. Allowed are severe mental pain not
intended to have lasting effects (pity if they do…), and physical pain
less than that which acompanies “serious physical injury such as death
or organ failure” (p. 46). Having opined that some cruel, inhuman, or
degrading acts are not forbidden, only those that are “extreme acts”
(committed on purpose), the memo moves on to “examine defenses” that
could be asserted to “negate any claims that certain interrogation
methods violate the statute.”
- This is not a draft, but it’s not
an action document either. It’s legal advice to the Counselor for
the President. The action document was Gonzales’s
memo to Bush.
- This OLC document
is a legalistic, logic-chopping brief for the torturer. Its entire
thrust is justifying maximal pain.
- Nowhere do the authors say “but
this would be wrong”.
- This memo also has a full dose of
the royalist vision of the Presidency that informs the Draft Walker
memo. In the views of the author(s), there’s basically nothing
Congress can do to constrain the President’s exercise of the war
power. The Geneva Conventions are, by inevitable implications, not
binding on the President, nor is any other international
agreement if it impedes the war effort. I’m sure our allies
will be just thrilled to hear that. And, although the memo nowhere
treats this issue, presumably, also, the same applies in reverse,
and our adversaries should feel unconstrained by any treaties
against poison gas, torture, land mines, or anything else? Or is
ignoring treaties a unique prerogative of the USA?
Synopsis and commentary:
Pages 2-13 are the same sort of
unconvincing criminal law analysis that others
have critiqued in the Walker Working Group memo
Admitting that the Torture Statute is
designed to implement the Torture Convention, and that therefore the
interpretation of the treaty should inform one’s interpretation of the
statute, page 14 of the Bybee memo starts in on the Torture Convention.
It finds in the Convention a distinction between the worst acts of
torture and lesser acts of “cruel, inhuman or degrading treatment or
punishment”. (P. 15) That’s fair enough.
Then things get weird. When the Senate
ratified the Torture Convention in 1994 it stated “[t]hat the United
States considers itself bound by the obligation under Article 16 to
prevent ‘cruel, inhuman or degrading treatment or punishment,’ only
insofar as the term ‘cruel, inhuman or degrading treatment or
punishment’ means the cruel, unusual and inhumane treatment or
punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments
to the Constitution of the United States.” 136 Cong. Rec. 17491 (Oct.
27, 1990).
It’s obvious (I hope) that the
various horrors the memo would allow, such as hurting prisoners a great
deal (but not quite to the point of ‘torture’), drugging them,
scaring them, and so on, indeed very many things we would call “cruel,
inhuman or degrading” would be the sort of thing that we would
domestically prohibit as “cruel and unusual” punishment. But if
that’s right, then the memo is deeply, horribly, wrong.
So, here’s how they try to reason
out of that hole: It’s not the Senate’s view that really counts. No,
it’s the King’s President’s view of the treaty’s
meaning that has the “greatest weight” (p. 16). To get to this
conclusion they cite a bunch of court decisions that say the
executive’s view is entitled to “great weight” (which it is)…but
the difference between “great” and “greatest” is, well, pretty
great.
Having decided that it’s the
executive branch’s views that matter, the memo then parses the Reagan
administration’s submissions to the Senate relating to the proposed
ratification of the the Convention. One problem with relying on what the
Reagan administration said is that the Senate didn’t ratify the
Convention until the first Bush administration. Arguably it did so in
reliance on the Bush administration’s submissions which, as the memo
delicately puts it used “less vigorous rhetoric” (p. 18). In fact,
the Bush administration used language much like that in the Torture
Statute; but the memo chooses to rely on the Reagan language instead (p.
19) to find that only the most extreme conduct would be prohibited.
As for what the Senate may have said in the ratification debates, the
memo’s attitude is — Who Cares? “[A]part from statements by
Executive Branch officials, the rest of a ratification debate is of
little weight in interpreting a treaty”. For a statement of the
contrary, and widely accepted, view that requires a court to consider
legislative sources, see Restatement (3rd) of the Foreign Relations Law
of the United States § 325 comment 5.
Despite the increasingly heard
right-wing complaint that the Supreme Court should not rely on the
decisions of foreign courts, the Memo then turns to what other nations
have said constitutes torture. The most important case on which the Memo
relies is “Ireland v. United Kingdom”:, a 1978 decision of the
European Court of Human Rights which held that “interrogation in
depth” involving “five techniques” was not “torture” but
merely “inhuman and degrading treatment”. The five techniques were:
a) wall-standing: forcing the
detainees to remain for periods of some hours in a “stress
position”, described by those who underwent it as being
“spreadeagled against the wall, with their fingers put high above
the head against the wall, the legs spread apart and the feet back,
causing them to stand on their toes with the weight of the body mainly
on the fingers”;
b) hooding: putting a black or navy
coloured bag over the detainees’ heads and, at least initially,
keeping it there all the time except during interrogation;
c) subjection to noise: pending
their interrogations, holding the detainees in a room where there was
a continuous loud and hissing noise;
d) deprivation of sleep: pending
their interrogations, depriving the detainees of sleep;
e) deprivation of food and drink..
subjecting the detainees to a reduced diet during their stay at the
centre and pending interrogations.
If one believed that US law banned
only “torture” and not mere “inhumane and degrading treatment”
then I think the Memo would be right to rely on this precedent. The key
issue is whether that initial distinction is right.
(The memo also noted, at pp. 30-31,
the Israeli Supreme Court’s decision in “Public Committee Against
Torture in Israel v. Israel”:, 38 LL.M. 1471
(1999), which discussed even more aggressive measures and found them to
be “inhuman and degrading”. The Bybee Memo argues somewhat
unpersuasively that this means the Court did not believe them to be
torture, a reading it buttressed by noting that Court accepted there
might be a necessity defense in some cases. I’m no expert here, but
I’m dubious: the Israeli Supreme Court was ruling in a charged and
political case, and was very mindful of the potential effect on
international public opinion. It had every incentive to avoid the word
‘torture’; as for the necessity defense, the Israeli rule, like the
US rule, contemplates permitting some things under domestic law that
violate international law. “Necessity” in Israel is seen as touching
national survival.)
Page 31 returns us to Wonderland. Here
the memo reverses field and says, basically, if we were wrong about any
of this stuff and the statute did ban an interrogation technique then
the statute would be unconstitutional as an impermissible encroachment
on the President’s Commander-in-Chief power to wage a military
campaign, especially in circumstances “unprecedented in recent
American history”. (Note the qualifier: it is NOT the
first time we’ve had an attack on our shores or even on core
government institutions. After all, the British burned the White House
in 1814.) The next couple pages recite what a great threat Al Qaeda is,
and the great national effort to fight it, concluding that “the
capture and interrogation of such individuals is clearly imperative to
our national security and defense” as they could tell us information
that would prevent future attacks.
[In what now
must seem highly ironic this section of the memo concludes by citing
Padilla’s arrest as an example of the valuable intelligence that could
be gathered to prevent future attacks on the US. (In
fact, by all accounts other than the Justice Department’s, Padilla was
at worst a nasty, ill-intentioned incompetent or perhaps just a big
talker; his lawyer argues he was a guy who soured on Al Qaeda and made
up stuff so they’d let him go back to the US).]
The memo then argues (pp. 33- ) that
any criminal statute such as the Torture statute, which might be read to
limit the President’s authority to wage war must be read to avoid this
constitutional problem. It’s certainly right that reading statutes to
avoid constitutional problems is a good interpretive strategy. The
problem here, as I’ve suggested previously, is that there isn’t
actually much of a constitutional problem here: a President negotiated
the statute, the Senate ratified it, both houses of Congress passed
implementing legislation that a different President signed. Treaties are
the law of the land. Once implemented in legislation (few treaties are
“self-executing,” so legislation is almost always needed), the
President has a duty to take care that they be faithfully executed
unless Congress relieves him of that obligation. That didn’t happen
here.
The memo argues (p. 35) that Congress
“may no more regulate the President’s ability to detain and
interrogate enemy combatants than it may regulate his ability to direct
troop movements on the battlefield.” Either this is just bunk, or the
Geneva conventions, the prohibitions on the use of poison gas, all the
rest of the web of international agreements to which the US is a party,
are so much tissue paper. We’re no longer committed to the rule of
law, but the rule of force. (In fact what the OLC seemed
to argue for in other memos was a double
standard in which international law still applied to everyone else.)
In any case, there’s an enormous
difference between unfettered discretion to move troops around on the
battlefield and unfettered discretion to order war crimes. One has to do
with determining what tools the President has available to conduct the
war, the other with the conduct of it. Congress has a great say in the
first, even if it has no say in the second.
Page 36 pulls back a bit in the
direction of reality. Perhaps realizing that its argument is a little
daft, the memo considers the possibility that “[i]t could be argued
that Congress enacted 18 U.S.C. § 2340A with
the full knowledge and consideration of the President’s
Commander-in-Chief power, and the Congress intended to restrict his
discretion in the interrogation of enemy combatants.” But the visit is
merely temporary, for the memo quickly asserts that even if this were
the case, “the Department of Justice could not could not [sic] enforce
Section 2340A against federal officials acting pursuant to the
President’s constitutional authority to wage a military campaign”.
Note that the argument here is not
that the DOJ should use its prosecutorial
discretion, but rather that it would have a legal duty to abstain from
prosecution. Why couldn’t the DOJ prosecute
what appears to be a crime? Because the President’s power to protect
the nation’s security is paramount (p. 36), and plenary, especially
“in grave and unforseen emergencies” (p. 37).
Now, there really is great substance
to the argument that the President’s powers are at its apex if he has
to repel a sudden attack on the US. I think
all constitutional scholars would agree with that. But the scenario to
which this applies is the invading army, the advancing missile or
aircraft, not the detainee captured half way across the world.
By page 39 of the memo, however,
we’re back to the Vesting Clauses of the Constitution, and the
argument the President is a law to himself regarding anything touching
military matters. “Any effort by Congress to regulate the
interrogation of battlefield combatants would violate the
Constitution’s sole vesting of the Commander-in-Chief authority in the
President.” And since intelligence gathering is so critical to modern
warfare against terrorists, Congress certainly can’t interfere with
that.
In short, it’s the same Nixonian
argument all over: the DOJ can’t
prosecute anyone who, in anything arguably connected to the war effort,
does what the President tells them to.
But that’s not enough. The Memo then
turns to other defenses besides Presidential authorization that might be
raised by a person accused of torture. [I take it that this section of
the memo applies to both accusations of “torture” which the authors
admit is torture and accusations of “torture” that the memo writers
would characterize as mere “cruel, inhuman, or degrading acts” that
are not actual torture, but it’s a little vague on this, and it’s
conceivable the authors mean this section only to apply to the latter.
The memo speaks of force, even deadly force, which suggests it includes
what they call torture, but elsewhere it notes that the force must be
“proportional” to the need; given that the “need” is national
security, and the memo treats this as the summum bonum, I read the memo
to intend the defenses potentially to apply to all uses of force
including the most severe torture.]
The first is the “necessity”
defense, the second is a notion of “self-defense”. I will leave it
to others
to skewer these. But I do feel a need to point out just how far down the
slippery slope this memo goes by page 45. It argues that otherwise
criminal individual acts can be defended by invoking the nations’s
not the individual’s right to self-defense (and even in a footnote
argues that there’s a relevant analogy to the right to national
self-defense under international law. And this applies to suspected
prospective attackers and their associates as well as soldiers in the
field. How this differs from saying that if the US even suspects anyone
of wanting to harm it, it can do anything it wants to them is not clear
on first reading.
Ultimately, the best legal commentary
on this memo may belong to Professor
Jay Leno:
According to the “New York
Times”, last year White House lawyers concluded that President Bush
could legally order interrogators to torture and even kill people in
the interest of national security - so if that’s legal, what the
hell are we charging Saddam Hussein with?
Remember: the lawyers who wrote this
memo were guilty of a lack of moral sense, and extreme tunnel vision
fueled by a national panic. The people who asked them to write it, who
read it, and especially any who may have acted on it — they’re
people who really have the most to answer for.
Also see:
a. Michael's response to Prof. John Yoo's op-ed in the
Los Angeles Times here.
As Michael says, "...As Prof. Yoo worked in the Justice Dept. During
2001-03, and by all accounts had a major hand in the drafting of Justice
Dept. memos relating to the rules applying to the treatment of al Qaeda
and other persons labeled by the administration as non-persons
enemy combatants, his comments deserve careful attention..." Read
his response in full.
b. Michael's earlier
post citing other work responding to the Bush administration's
earlier torture memos. As he says:
One of the weirder parts of the
Torture Memo, which I didn’t write about earlier,
was the attempt to suggest that a torturer might be able to benefit from
what we lawyers call a ‘pure heart, empty head’ defense: ‘Honest,
judge, I didn’t think it was torture.’ The memo tries this on in two
implausible ways: (1) The guy doing the damage honestly believes it’s
legal; (2) the guy doing the damage isn’t sure it’s really going to
be that damaging. Both arguments seem completely inapplicable to the
circumstances, neither is convincing, and the legal analysis is muddled.
But don’t take my word for it, it’s not my field. Instead, have a
look at these
three
posts
by experts.
Update (6/11/04): Also don’t miss
Eric Muller’s excellent comment, Manipulating
Doctrine.
Shall we say, that borrowing from the 101st
Fighting Keyboarders, that this administration is "objectively
pro-torture"?
5/30/04 <link>
The prisoner abuse scandal and more...
Michael Hirsch and John Barry have an article
in Newsweek, that pretty much says it all. Here's the tile:
The Abu Ghraib Scandal Cover-Up?
Bush insists that 'a few American troops' dishonored the country. But
prisoner abuse was more widespread, and some insiders believe that much
remains hidden
As they say in blogworld, go "read
the whole thing".
Separately, the so-called turnover of power in Iraq is
prodding along - and Josh Marshall is covering the latest developments.
Start here
and continue reading. Another good site covering Iraq, especially the
whole Chalabi mess, is Laura Rozen's War
and Piece.
As for all the talk from right-wing partisans about how
the Press is not talking about the "progress" in Iraq, Maxspeak
has a response (via Atrios) - do read it. Moreover, as this New York
Times article
by James Glanz suggests, it all depends on what the meaning of
"progress" is.
As the United States spends
billions of dollars to rebuild Iraq's civil and military infrastructure,
there is increasing evidence that parts of sensitive military equipment,
seemingly brand-new components for oil rigs and water plants and whole
complexes of older buildings are leaving the country on the backs of
flatbed trucks (my emphasis).
By some estimates, at least 100 semitrailers loaded with what is billed
as Iraqi scrap metal are streaming each day into Jordan, just one of six
countries that share a border with Iraq.
American officials say sensitive equipment is, in fact, closely
monitored and much of the rest that is leaving is legitimate removal and
sale from a shattered country. But many experts say that much of what is
going on amounts to a vast looting operation.
In the past several months, the International Atomic Energy Agency,
based in Vienna, has been closely monitoring satellite photographs of
hundreds of military-industrial sites in Iraq. Initial results from that
analysis are jarring, said Jacques Baute, director of the agency's Iraq
nuclear verification office: entire buildings and complexes of as many
as a dozen buildings have been vanishing from the photographs.
"We see sites that have totally been cleaned out," Mr. Baute
said.
The agency started the program in December, after a steel vessel
contaminated with uranium, probably an artifact of Saddam Hussein's
pre-1991 nuclear program, turned up in a Rotterdam scrapyard. The
shipment was traced to a Jordanian company that was apparently unaware
that the scrap contained radioactive material.
In the last several weeks, Jordan has again caught the attention of
international officials, as pieces of Iraqi metal bearing tags put in
place by the United Nations Monitoring, Verification and Inspection
Commission, established to monitor Iraqi disarmament during Mr.
Hussein's rule, have been spotted in Jordanian scrapyards. The
observation of items tagged by the commission, known as Unmovic, has not
been previously disclosed.
"Unmovic has been investigating the removal from Iraq of materials
that may have been subject to monitoring, and that investigation is
ongoing," said Jeff Allen, a spokesman for the commission. "So
we've been aware of the issue," he said. "We've been apprised
of the details of the Rotterdam incident and have been in touch with
Jordanian officials."
Recent examinations of Jordanian scrapyards, including by a reporter for
The New York Times, have turned up an astounding quantity of scrap metal
and new components from Iraq's civil infrastructure, including piles of
valuable copper and aluminum ingots and bars, large stacks of steel rods
and water pipe and giant flanges for oil equipment - all in nearly mint
condition - as well as chopped-up railroad boxcars, huge numbers of
shattered Iraqi tanks and even beer kegs marked with the words
"Iraqi Brewery."
"There is a gigantic salvage operation, stripping anything of
perceived value out of the country," said John Hamre, president and
chief executive of the Center for Strategic and International Studies, a
nonpartisan Washington research institute, which sent a team to Iraq and
issued a report on reconstruction efforts at the request of the Pentagon
last July.
"This is systematically plundering the country," Dr. Hamre
said. "You're going to have to replace all of this stuff."
The United States contends that the prodigious Middle Eastern trade in
Iraqi scrap metal is closely monitored by Iraqi government ministries to
ensure that nothing crossing the border poses a security risk or siphons
material from new projects. In April, L. Paul Bremer III, the
occupation's senior official in Iraq, and the Iraqi Ministry of Trade
established rules for licensing the export of scrap metal from the
country.
....
Sam Whitfield, a spokesman for the Coalition Provisional Authority, said
that penalties for not obtaining a license or abiding by its terms were
severe for a trucker. "If he does not have it or is found to be
exporting scrap illegally, not only can his load be seized but his truck
can be seized," he said.
...
Mr. Whitfield asserted that the coalition had put a stop to widespread
looting in Iraq. But a visit to an enormous scrapyard on the side of a
dusty hill surrounded by goat herds in this town about 10 miles
southeast of Amman raises serious questions about that assertion. Cranes
and men with torches pick through seemingly endless piles of steel,
aluminum and copper that workers there say has come almost exclusively
from Iraq.
On a recent afternoon, roughly 100 trucks, many with yellow Iraqi
license plates, were lined up near the entrance to the scrapyard or
maneuvering with inches to spare inside, their engines snorting as they
kicked up the flourlike dust.
Yousseff Wakhian, a scrapyard worker wearing a gray jumpsuit and a cap
with a New York Yankees insignia, said that 60 to 100 trucks had come in
that day from Iraq and 50 had left with loads of the scrap to be sold
elsewhere.
Some of the piles contain items that might - or might not - have arrived
as part of legitimate scrap operations. There is stripped copper cable
from a high-voltage electrical system, jumbled piles of tank treads, big
engine blocks and crankshafts and thick steel walls connected to a door
with lettering indicating that it was part of a building at an airport.
Last year, there were widespread reports of looting of electrical
transmission lines and military bases, among other things.
But Muhammad al-Dajah, an engineer who is technical director Jordanian
free-trade zones like the Sahab scrapyard, pointed with chagrin to piles
of other items that hardly looked as if they belonged in a shipment of
scrap metal. There were new 15-foot-long bars of carbon steel, water
pipes a foot in diameter stacked in triangular piles 10 feet high, and
the large flanges he identified as oil-well equipment.
"It's still new," Mr. Dajah said, "and worth a lot."
"Why are they here?" he asked rhetorically, and then said,
referring to the devastation in Iraq. "They need it there."
...
Several Middle Eastern analysts said that the widespread traffic in
Iraqi scrap did not have all the hallmarks of an above-board operation.
"What we are finding out in Iraq, there are gangs, some of them
from the old days, some of them new with corruption, and they can get
away with it," said Walid Khadduri, an Iraqi who is editor of the
Middle East Economic Survey in Cyprus and was in the country as recently
as January.
"It is really mayhem," Mr. Khadduri said. "There is no
law."
Labib Kamhawi, a Jordanian political analyst who has done business in
Iraq under the oil-for-food program, said that there was in fact much
talk in the business community of deals "to ship new things under
the title of scrap."
5/23/04 <link>
More outrages reveal themselves
A. Julian Borger reports
in the Guardian on the convicted criminal and lying con man Ahmad
Chalabi and the alleged evidence that his group passed on classified
American intelligence secrets to Iran. The obvious question, which is
apparently being investigated by the FBI, is who in the U.S. Government
passed on the secrets to Chalabi and his crooks anyway? No awards for
correct answers -- given it is obvious who Chalabi's closest friends
were..
An urgent
investigation has been launched in Washington into whether Iran played a
role in manipulating the US into the Iraq war by passing on bogus
intelligence through Ahmad Chalabi's Iraqi National Congress, it emerged
yesterday.
Some intelligence officials now believe that Iran used the hawks in the
Pentagon and the White House to get rid of a hostile neighbour, and pave
the way for a Shia-ruled Iraq.
According to a US intelligence official, the CIA has hard evidence that
Mr Chalabi and his intelligence chief, Aras Karim Habib, passed US
secrets to Tehran, and that Mr Habib has been a paid Iranian agent for
several years, involved in passing intelligence in both directions.
The CIA has asked the FBI to investigate Mr Chalabi's contacts in the
Pentagon to discover how the INC acquired sensitive information that
ended up in Iranian hands.
The implications are far-reaching. Mr Chalabi and Mr Habib were the
channels for much of the intelligence on Iraqi weapons on which
Washington built its case for war.
"It's pretty clear that Iranians had us for breakfast, lunch and
dinner," said an intelligence source in Washington yesterday.
"Iranian intelligence has been manipulating the US for several
years through Chalabi."
Larry Johnson, a former senior counter-terrorist official at the state
department, said: "When the story ultimately comes out we'll see
that Iran has run one of the most masterful intelligence operations in
history. They persuaded the US and Britain to dispose of its greatest
enemy."
Mr Chalabi
has vehemently rejected the allegations as "a lie, a fib and
silly". He accused the CIA director, George Tenet, of a smear
campaign against himself and Mr Habib.
However, it is clear that the CIA - at loggerheads with Mr Chalabi for
more than eight years - believes it has caught him red-handed, and is
sticking to its allegations.
"The suggestion that Chalabi is a victim of a smear campaign is
outrageous," a US intelligence official said. "It's utter
nonsense. He passed very sensitive and classified information to the
Iranians. We have rock solid information that he did that."
Kevin Drum of Political Animal
has been covering this quite a bit: here,
here,
here,
here
and here.
B. Nick Confessore comments in TAPPED
on the latest outrage revealed in Iraq, which is merely another symptom
of the bottomless incompetence of the White House. His comments are about
right (bold text is my emphasis).
ANOTHER REASON FOR CHAOS IN IRAQ.
What do you expect when you hire a bunch of 25-year-old political
science majors to run the occupation? Here are some depressing
highlights from what is, as Kevin Drum notes,
actually a
very fair-minded story in the Washington Post about the young
folks who went to Iraq to work for the Coalition Provisional Authority.
[Simone] Ledeen's journey to Baghdad
began two weeks earlier when she received an e-mail out of the blue
from the Pentagon's White House liaison office. The Sept. 16 message
informed her that the occupation government in Iraq needed employees
to prepare for an international conference. "This is an amazing
opportunity to move forward on the global war on terror," the
e-mail read.
For Ledeen, the offer seemed like fate. One of her family friends had
been killed in the Sept. 11, 2001, terrorist attacks, and it had
affected her family deeply. Without hesitation, she responded
"Sure" to the e-mail and waited -- for an interview, a
background check or some other follow-up. Apparently none was
necessary. A week later, she got a second e-mail telling her to look
for a packet in the mail regarding her move to Baghdad.
Others from across the District responded affirmatively to the same
e-mail, for different reasons. Andrew Burns, 23, a Red Cross volunteer
who had taught English in rural China, felt going to Iraq would help
him pursue a career in humanitarian aid. Todd Baldwin, 28, a
legislative aide for Sen. Rick Santorum (R-Pa.), thought the
opportunity was too good to pass up. John Hanley, 24, a Web site
editor, wanted to break into the world of international relations.
Anita Greco, 25, a former teacher, and Casey Wasson, 23, a recent
college graduate in government, just needed jobs.
For months they wondered what they had in common, how their names
had come to the attention of the Pentagon, until one day they figured
it out: They had all posted their resumes at the Heritage Foundation,
a conservative-leaning think tank.
Right, because the Heritage Foundation is
so well-known as a font of nation-building expertise. Where else would
you look for volunteers? Then there's this business:
Pentagon spokesman Lt. Col. Joseph
Yoswa said the CPA was satisfied with the quality of applicants. Some
staffers may have been young and inexperienced, he said, but "we
have people right out of college leading troops on the ground."
Yoswa said the recruiting office had to hire quickly for the Madrid
donors conference that fall and "turned to the Heritage
Foundation, an educational facility, albeit a conservative one, but
primarily a place where you can get good, solid people." He said
this was a one-time event and that there was no organized effort to
hire Republicans.
Of course, by going to Heritage in the
first place, you've got a de facto "organized effort to hire
Republicans." And it's amazing to see Yowsa compare young
lieutenants out of ROTC programs and the service academies to the
demonstrably ill-equipped and unprepared CPA workers. After all, the
lieutenants have actually been trained -- highly trained -- for their
work. Would that the CPA staffers had spent a couple of months at
nation-building boot camp. The Post story goes on:
When Ledeen's group showed up at the
palace -- with their North Face camping gear, Abercrombie & Fitch
camouflage and digital cameras -- they were quite the spectacle. For
some, they represented everything that was right with the CPA: They
were young, energetic and idealistic. For others, they represented
everything that was wrong with the CPA: They were young,
inexperienced, and regarded as ideologues.
Several had impressive paper credentials, but in the wrong fields.
Greco was fluent in English, Italian and Spanish; Burns had been a
policy analyst focused on family and health care; and Ledeen had
co-founded a cooking school. But none had ever worked in the Middle
East, none spoke Arabic, and few could tell a balance sheet from an
accounts receivable statement.
Other staffers quickly nicknamed the newcomers "The Brat
Pack."
"They had come over because of one reason or another, and they
were put in positions of authority that they had no clue about,"
remembered Army Reserve Sgt. Thomas D. Wirges, 38, who had been
working on rehabilitating the Baghdad Stock Exchange.
Some also grumbled about the new staffers' political ties. Retired
U.S. Army Col. Charles Krohn said many in the CPA regard the
occupation "as a political event," always looking for a way
to make the president look good.
...
Brad Jackson, a lieutenant colonel in the Army Reserve who worked
with the CPA, said the budget team regularly asked other ministries at
the last minute to produce information that would take hundreds of
people half a year to gather.
"There were a lot of people who, being political science majors,
didn't know what an income statement was, who were asking the
impossible. . . . That was giving us ulcers, quite frankly," he
said.
The young budget advisers are the first to admit that they weren't
the most qualified to be managing Iraq's finances. "We knew we
were overwhelmed. We wanted help," Ledeen said. "We were
doing maintenance, trying to make sure there were no riots, that no
one went hungry." The budget team reported to Rodney Bent, a
former U.S. Office of Management and Budget official, and Tony
McDonald from the Australian Treasury. McDonald said it angers him to
hear people criticize the budget team. "The people who came were
young and keen -- not necessarily the most experienced -- but they
were here. They did a great job in working as hard as they
could."
Although I've heard a lot over the
transom similar to Krohn's complaint -- that the CPA was politicized to
its core, more concerned with making the White House look good than
anything else -- at the end of the day it's hard to come down too hard
on the folks in this artice. They went to a dangerous place and worked
hard for their country. That many of them had no business being there is
really on the hands of those at the top who decided not to plumb the
community of professional nation-builders and NGOS, because doing so
might be too close to something Bill Clinton had done, and
weren't those groups all run by lefties anyway? For shame. And look what
the White House's short-sightedness has wrought.
5/18/04 <link>
Cover-up
Via DailyKos,
ABC has a report:
Definitely a Cover-Up'
Former Abu Ghraib Intel Staffer Says Army Concealed Involvement in Abuse
Scandal
By Brian Ross
May 18, 2004 -- Dozens of soldiers -- other than the seven military
police reservists who have been charged -- were involved in the abuse at
Iraq's Abu Ghraib prison, and there is an effort under way in the Army
to hide it, a key witness in the investigation told ABCNEWS.
"There's definitely a cover-up," the witness, Sgt. Samuel
Provance, said. "People are either telling themselves or being told
to be quiet."
Provance, 30, was part of the 302nd Military Intelligence Battalion
stationed at Abu Ghraib last September. He spoke to ABCNEWS despite
orders from his commanders not to.
Salon.com's Michelle Goldberg reports on another
home
grown torture scandal - the one practices on Muslims detained
secretly inside the U.S. after 9/11.
Advantage of not covering up
Mark Follman reports
on the importance of saying sorry - and one positive development from
Bush's apology to the Arab world.
But some conservative military
bloggers are now rejecting Steyn's brand of hard-liner bravado, pointing
to powerful benefits from Bush's apology, particularly in the Arab
media. Joe
Carter, a career U.S. Marine from Texas who authors the Evangelical
Outpost blog, reports a change of heart on the issue.
"When President Bush apologized for the events at Abu Ghraib prison
I thought it was a mistake. At the time I believed that the apology
would send the wrong message to the Arab street and be perceived as a
sign of weakness. I felt it would imply that both the military and the
Administration were not only responsible for the atrocities but culpable
for the actions of a few criminals. I was wrong."
Carter cites a recent e-mail from an unnamed Marine colonel in Iraq who
says he was struck by the degree to which Bush's apology has had a
positive effect. The e-mail was posted by fellow military blogger Blackfive,
a former U.S. Army major and Defense Intelligence Agency officer (who
provides only his real first name, Matthew.) In the e-mail, the Marine
colonel recounts a recent broadcast he saw on Arab television:
"'Why does Arab media fail at self criticism and why can't Arab
human rights NGOs pressure Arab governments the way their counterparts
do in America?', asked the host of satellite news channel al-Arabiy[a]'s
(one of the harshest critics of the United States) 'Spotlight' news
program. The follow up commentary was even more astounding, given the
source. 'The Americans exposed their own scandal, queried the officials
and got the American Government to accept responsibility for the actions
of its soldiers,' stated the host before asking her guests why this sort
of open and responsive action isn't taken in the Arab world."
The
Marine colonel also wrote that "one of the largest newspapers in
the Pan-Arab world" -- he doesn't specify which one -- had
"raised the stakes even higher" by editorializing with the
following:
"What
happened at Abu Ghuraib is not surprising as there are many stories of
horror inside Arab jails. The abuses that the Arab governments condemn
at Abu Ghuraib are nothing compared to what happens in these
governments' jails. Will the Arab regimes go on TV and apologize to
their people in the same way President Bush did?"
The strategic payoff of such press, argued the Marine colonel, could be
enormous.
"My colleague who heads our Arab media unit here in Baghdad called
these statements nothing short of revolutionary for the Middle East
media. And while they may not seem that profound on the surface, they
are threads of a far greater, and still unfolding, story. Yes, the
horrific actions of a few have tainted the good work of the many. But
they have unwittingly done something else. The events of the past
several days have given democracy a global stage within which to prove
its worth.
"In all their lives, the citizens of Iraq never heard Saddam
Hussein apologize. Not once. Not when he gassed more than 10,000 of his
own people on an April morning a decade ago. Not when he dragged 300,000
men, women and children from their homes in the dead of night to be
driven into the desert and summarily executed and buried in mass,
unmarked graves ... No, the first time the people of this land ever
heard an apology it came from the leader of the world's oldest democracy
... He was apologizing because in this instance, we were wrong."
5/16/04 <link>
The U.S. and human rights - some
perspective
Via Atrios,
I see that Fred Hiatt had something relevant to say on this in the
Washington Post. I emphasize some portions in bold text.
The first victims of U.S. prison
abuse at Abu Ghraib were Iraqis. But those who will pay a price also live
in Libya and Hong Kong, Venezuela and Burma, and anywhere else human
rights are in jeopardy.
They will pay a price because America's capacity to stand up to
dictators, and stand up for their victims, is the lowest it has been in
memory. And so far at least, President Bush either does not appreciate or
does not care enough about this handicap to begin taking the steps that
might point to recovery.
"Of course our hands have never been completely clean," says a
friend in the human-rights-and-democracy-promotion world. "But this
is different. Our hands are unclean in a way we haven't known about since
My Lai."
Is this is an exaggeration? You might dismiss some of the domestic
criticism, as Defense Secretary Donald Rumsfeld seems to, as the carping
of political opponents. You might discount some of the reaction of the
Arab world, too, where official newspapers have long delighted in
proclaiming U.S. hypocrisy.
"Nobody is surprised," shrugs Olivier Roy, the French authority
on political Islam, when asked whether the photos will spur al Qaeda
recruiting. "Nobody expects the Americans to come to the Mideast to
establish democracy. They think you come for oil, or for Israel. For the
man in the street, what else would you expect from the Americans?"
Bad enough if we fail to exceed their expectations. But when you listen
to America's friends around the world -- the people who want the United
States to play a leading role -- you get a better sense of the damage.
Listen, for example, to Tommy Koh, Singapore's former ambassador to the
United States and the United Nations: "We believed in American
exceptionalism, and American exceptionalism has proven to be
fraudulent."
Or Kim Kyung Won, who held similar posts for South Korea: "These
things happen in a lot of countries. But we had the expectation that the
United States is different. So the revelation that this happens in U.S.
prisons makes us sad -- more sad than angry."
Or Farooq Sobhan, former foreign secretary and U.N. ambassador of the
South Asian Muslim nation of Bangladesh: "This is a shot in the arm
for the extremists, the guys who have been saying, 'You can't trust the
Americans, this is a war on Muslims.' And as of now there is no credible
response."
Sobhan said he wishes the U.S. administration would respond far more
energetically to this crisis, holding higher-ups accountable, pledging
adherence to international law and, above all, listening and reaching out
to governments and people in countries like his.
If all this seems theoretical, consider six real-world people who may be
about to die. Five Bulgarian health workers and a Palestinian doctor have
been sentenced to death by firing squad in Libya for intentionally
infecting 400 children with HIV. Dictator Moammar Gaddafi, most likely
seeking to distract attention from squalid conditions inside his
hospitals, found some foreign scapegoats and accused them of taking
orders from the CIA and the Israeli secret service. When the United
States protested the sentence last week, Libya turned out 1,000
demonstrators to burn American flags and said the U.S. government has
"no moral authority anymore to talk about human rights" in
light of the Abu Ghraib scandal.
Dictators forever have sought to deflect criticism by playing to
anti-Americanism. The difference now is that the United States can hardly
talk back. It might have had some influence over Gaddafi at this moment.
But the State Department delayed publication of its own annual human
rights report -- which in past years has criticized other governments for
precisely the kinds of practices that U.S. officials have authorized in
Iraq.
Some will say this is all to the good if it diminishes the hubris of
what President Bill Clinton called the "indispensable nation." They
will say that slave-owning, Indian-eradicating, dictator-propping America
was never anything but a fraudulent champion of human rights.
But if you could ask the dissidents and human rights champions who over
the decades, in isolated prison cells and frozen work camps, have somehow
gotten word that U.S. diplomats or presidents had not forgotten them; if
you could ask the elected leader of Burma, who is still under house
arrest; or the peasants who are being chased from their villages in
western Sudan, or the democrats being slowly squashed in Hong Kong by the
Communists in Beijing -- if you could ask any of them, you might get a
different answer. They might tell you that the United States has never
been perfect, has never done enough, has never been free of hypocrisy --
but also that if America cannot take up their cause, no one will.
The last sentence is very appropriate. I said something
pretty similar in an earlier article I
wrote in early 2002.
The scourge of "terrorism"
may have become unconventional, it may be low-tech (box-cutter or
envelope based), and it may be spread out over the world, but the people
(not just the politicians or so-called leaders) who subscribe to and
evangelise its perpetrators will soon have to make up their mind, as to
what they really prefer in their lives. To those people, it will
not be a choice between the "US way" and the "other
way", but it will be a choice between living a life and having their
life lived for them (through planned martyrdom or perennial subjugation).
For all the crap being thrown at the US and it being equated with the
Taliban, let us not forget which of these two groups one would first turn
to if one really wanted to improve the probability that democracy will
ultimately prevail on this earth.
5/15/04 <link>
Nick Berg, Abu Musab al-Zarqawi and Abu
Ghraib
Following the hideous,
deplorable decapitation of American worker Nick Berg by terrorists in
Iraq, one of the natural questions to ask is - who did this? Reports
suggest it was Al Qaeda-linked terrorist Abu-Musab al-Zarqawi. Here's
CBS:
Abu Musab al-Zarqawi is believed to
have ordered and even carried out the beheading of American businessman
Nicholas Berg in Iraq. And now the gruesome video of the killing may help
find the ally of Osama bin Laden.
CBS News Correspondent Cami McCormick in Baghdad says authorities
are studying the gruesome videotape of the slaying that appeared on the
Internet for any clues to the whereabouts of the wanted terrorist. He's
believed to be traveling through Iraq.
Brig. Gen. Mark Kimmitt, the top U.S. military spokesman in Iraq, said it
may take a while and Zarqawi may have the ability to evade capture -- but
he will be caught eventually.
President Bush focused on the Berg slaying in his weekly radio address
Saturday, insisting Berg's killers must be hunted down as part of a
strategy ultimately designed to bring peace to the U.S.-occupied country.
Unfortunately, Bush's statement rings hollow - as did
earlier attempts to pass the buck for Abu Ghraib onto a
"handful" of soldiers. Why? Fred
Kaplan points out in Slate/MSN (via Buzzflash) - bold text being my
emphasis:
And so it seems I, too, have misunderestimated
the president. This past Wednesday, I wrote a column
holding George W. Bush responsible for our recent disasters—the
torture at Abu Ghraib and the whole plethora of strategic errors in
Iraq. My main argument was that Bush has placed too much trust, for far
too long, in the judgment of Secretary of Defense Donald Rumsfeld,
despite his ceaseless string of bad judgments.
However, two news stories that have since come to my attention—one
that appeared on the same day, the other more than two months
ago—suggest not merely that Bush is guilty of "failing to
recognize failure" (as my headline put it) but that he is directly
culpable for the sins in question, no less so than his properly
beleaguered defense chief.
The first story, written by Mark Matthews in the May 12 Baltimore
Sun, quotes
Secretary of State Colin Powell—on the record—as saying Bush knew
about the International Committee of the Red Cross reports that were
filed many months ago about the savagery at the prison. Powell is
quoted as saying:
We kept the president informed of
the concerns that were raised by the ICRC and other international
organizations as part of my regular briefings of the president, and
advised him that we had to follow these issues, and when we got
notes sent to us or reports sent to us … we had to respond to them.
Powell adds that he, Rumsfeld, and
Condoleezza Rice kept Bush "fully informed of the concerns that
were being expressed, not in specific details but in general
terms." (Thanks to Joshua Micah Marshall, whose blog
alerted me to the Sun story.)
So much for Rumsfeld's protective claim, at last week's hearing before
the Senate Armed Services Committee, that he had failed to bring the
matter to the president's attention. No wonder Bush, in turn, rode out
to the Pentagon and praised his servant-secretary for doing a
"superb" job.
It's amazing, by the way, how Colin Powell seems to have scuttled his good-soldier
routine altogether, criticizing his president at first quasi-anonymously
(through Bob Woodward's new book),
then through close aides (Wil Hylton's GQ
article), and now straight up in the Baltimore Sun. One wonders
when he'll go all the way and start making campaign appearances for John
Kerry.
The second news story that heaves more burdens on the president comes
from an NBC
News broadcast by Jim Miklaszewski on March 2. Apparently, Bush had
three opportunities, long before the war, to destroy a terrorist camp in
northern Iraq run by Abu Musab Zarqawi, the al-Qaida associate who
recently cut off the head of Nicholas Berg. But the White House decided
not to carry out the attack because, as the story puts it:
[T]he administration feared
[that] destroying the terrorist camp in Iraq could undercut its case
for war against Saddam.
The implications of this are more
shocking, in their way, than the news from Abu Ghraib. Bush promoted the
invasion of Iraq as a vital battle in the war on terrorism, a
continuation of our response to 9/11. Here was a chance to wipe out a
high-ranking terrorist. And Bush didn't take advantage of it because
doing so might also wipe out a rationale for invasion.
The story gets worse in its details. As far back as June 2002, U.S.
intelligence reported that Zarqawi had set up a weapons lab at Kirma in
northern Iraq that was capable of producing ricin and cyanide. The
Pentagon drew up an attack plan involving cruise missiles and smart
bombs. The White House turned it down. In October 2002, intelligence
reported that Zarqawi was preparing to use his bio-weapons in Europe.
The Pentagon drew up another attack plan. The White House again
demurred. In January 2003, police in London arrested terrorist suspects
connected to the camp. The Pentagon devised another attack plan. Again,
the White House killed the plan, not Zarqawi.
When the war finally started in March, the camp was attacked early on.
But by that time, Zarqawi and his followers had departed.
This camp was in the Kurdish enclave of Iraq. The U.S. military had
been mounting airstrikes against various targets throughout
Iraq—mainly air-defense sites—for the previous few years. It would
not have been a major escalation to destroy this camp, especially after
the war against al-Qaida in Afghanistan. The Kurds, whose autonomy had
been shielded by U.S. air power since the end of the 1991 war, wouldn't
have minded and could even have helped.
But the problem, from Bush's perspective, was that this was the only
tangible evidence of terrorists in Iraq. Colin Powell even showed
the location of the camp on a map during his famous Feb. 5 briefing at
the U.N. Security Council. The camp was in an area of Iraq that Saddam
didn't control. But never mind, it was something. To wipe it
out ahead of time might lead some people—in Congress, the United
Nations, and the American public—to conclude that Saddam's links to
terrorists were finished, that maybe the war wasn't necessary. So Bush
let it be.
In the two years since the Pentagon's first attack plan, Zarqawi has
been linked not just to Berg's execution but, according to NBC, 700
other killings in Iraq. If Bush had carried out that attack back in
June 2002, the killings might not have happened. More: The case for war
(as the White House feared) might not have seemed so compelling. Indeed,
the war itself might not have happened.
One ambiguity does remain. The NBC story reported that "the White
House" declined to carry out the airstrikes. Who was "the
White House"? If it wasn't George W. Bush—if it was, say, Dick
Cheney—then we crash into a very different conclusion: not that Bush
was directly culpable, but that he was more out of touch than his most
cynical critics have imagined. It's a tossup which is more disturbing: a
president who passes up the chance to kill a top-level enemy in the war
on terrorism for the sake of pursuing a reckless diversion in Iraq—or
a president who leaves a government's most profound decision, the choice
of war or peace, to his aides.
The above outrages should be evaluated also in the
context of Seymour
Hersh's latest update in the New Yorker, on Abu Ghraib (via Buzzflash).
I reproduce some portions from the first part of his article - with bold text is my emphasis:
The roots of the
Abu Ghraib prison scandal lie not in the criminal inclinations of a few
Army reservists but in a decision, approved last year by Secretary of
Defense Donald Rumsfeld, to expand a highly secret operation, which had
been focussed on the hunt for Al Qaeda, to the interrogation of
prisoners in Iraq. Rumsfeld’s decision embittered the American
intelligence community, damaged the effectiveness of élite combat
units, and hurt America’s prospects in the war on terror.
According to interviews with several past and present American
intelligence officials, the Pentagon’s operation, known inside the
intelligence community by several code words, including Copper Green,
encouraged physical coercion and sexual humiliation of Iraqi prisoners
in an effort to generate more intelligence about the growing insurgency
in Iraq. A senior C.I.A. official, in confirming the details of this
account last week, said that the operation stemmed from Rumsfeld’s
long-standing desire to wrest control of America’s clandestine and
paramilitary operations from the C.I.A.
Rumsfeld, during appearances last week before Congress to testify about
Abu Ghraib, was precluded by law from explicitly mentioning highly
secret matters in an unclassified session. But he conveyed the message
that he was telling the public all that he knew about the story. He
said, “Any suggestion that there is not a full, deep awareness of what
has happened, and the damage it has done, I think, would be a
misunderstanding.” The senior C.I.A. official, asked about
Rumsfeld’s testimony and that of Stephen Cambone, his Under-Secretary
for Intelligence, said, “Some people think you can bullshit anyone.”
At this point, let us reiterate what others are saying:
Resign,
Rumsfeld.
Incidentally,
Rumsfeld reacted in his usual direct
fashion: he authorized the establishment of a highly secret program that
was given blanket advance approval to kill or capture and, if possible,
interrogate “high value” targets in the Bush Administration’s war
on terror.
...
The operation had across-the-board approval from Rumsfeld and from
Condoleezza Rice, the national-security adviser. President Bush was
informed of the existence of the program, the former intelligence
official said.
Now, at the same time, let me recommend to the reader
the ENTIRE
Seymour Hersh article, because he also provides some valuable
perspective on how the policy on interrogations originated after 9/11.
Among other things, it raises some valid questions on how one should deal
with an enemy that is stateless and follows no rules.
The Abu Ghraib story began, in a
sense, just weeks after the September 11, 2001, attacks, with the
American bombing of Afghanistan. Almost from the start, the
Administration’s search for Al Qaeda members in the war zone, and its
worldwide search for terrorists, came up against major
command-and-control problems. For example, combat forces that had Al
Qaeda targets in sight had to obtain legal clearance before firing on
them. On October 7th, the night the bombing began, an unmanned Predator
aircraft tracked an automobile convoy that, American intelligence
believed, contained Mullah Muhammad Omar, the Taliban leader. A lawyer
on duty at the United States Central Command headquarters, in Tampa,
Florida, refused to authorize a strike. By the time an attack was
approved, the target was out of reach. Rumsfeld was apoplectic over what
he saw as a self-defeating hesitation to attack that was due to
political correctness. One officer described him to me that fall as
“kicking a lot of glass and breaking doors.” In November, the
Washington Post reported that, as many as
ten times since early October, Air Force pilots believed they’d had
senior Al Qaeda and Taliban members in their sights but had been unable
to act in time because of legalistic hurdles. There were similar
problems throughout the world, as American Special Forces units seeking
to move quickly against suspected terrorist cells were compelled to get
prior approval from local American ambassadors and brief their superiors
in the chain of command.
Rumsfeld reacted in his usual direct fashion: he authorized the
establishment of a highly secret program that was given blanket advance
approval to kill or capture and, if possible, interrogate “high
value” targets in the Bush Administration’s war on terror. A
special-access program, or sap—subject
to the Defense Department’s most stringent level of security—was set
up, with an office in a secure area of the Pentagon. The program would
recruit operatives and acquire the necessary equipment, including
aircraft, and would keep its activities under wraps. America’s most
successful intelligence operations during the Cold War had been saps,
including the Navy’s submarine penetration of underwater cables used
by the Soviet high command and construction of the Air Force’s stealth
bomber. All the so-called “black” programs had one element in
common: the Secretary of Defense, or his deputy, had to conclude that
the normal military classification restraints did not provide enough
security.
“Rumsfeld’s goal was to get a capability in place to take on a
high-value target—a standup group to hit quickly,” a former
high-level intelligence official told me. “He got all the agencies
together—the C.I.A. and the N.S.A.—to get pre-approval in place.
Just say the code word and go.” The operation had across-the-board
approval from Rumsfeld and from Condoleezza Rice, the national-security
adviser. President Bush was informed of the existence of the program,
the former intelligence official said.
The people assigned to the program worked by the book, the former
intelligence official told me. They created code words, and recruited,
after careful screening, highly trained commandos and operatives from
America’s élite forces—Navy seals,
the Army’s Delta Force, and the C.I.A.’s paramilitary experts. They
also asked some basic questions: “Do the people working the problem
have to use aliases? Yes. Do we need dead drops for the mail? Yes. No
traceability and no budget. And some special-access programs are never
fully briefed to Congress.”
In theory, the operation enabled the Bush Administration to respond
immediately to time-sensitive intelligence: commandos crossed borders
without visas and could interrogate terrorism suspects deemed too
important for transfer to the military’s facilities at Guantánamo,
Cuba. They carried out instant interrogations—using force if
necessary—at secret C.I.A. detention centers scattered ar |
