Friday, September 4, 2009


While Obama battles in three courts to keep secret the Bush CIA’s abductions, he has begun his own renditions and actively defends the extralegal practice.

In one respect, however, Barack Obama has parted company with Bush – occasionally he obeys court orders.

During August he obeyed two of them.

First, there was the order for release of the Guantánamo detainee Mohammed Jawad by DC district court judge Ellen Huvelle (see my post of August 5).

Daphne Eviatar thought that the government’s capitulation might be due to revelations that it had paid witnesses.

imageOr perhaps it was the possibility that Jawad was a child of 12 when arrested rather than the 17-year-old the government had claimed, relying on the Pentagon’s now-dubious bone scans.

Despite Judge Huvelle’s (pic, centre) order that Jawad be treated humanely, he was shackled and degraded to the last and his military lawyers only narrowly prevented his delivery to an Afghan prison.

He’s now considering a civil suit for damages.

Scotus Blog and Democracy Now have more.

In another law-abiding breakthrough, Obama finally obeyed the order, by New York district court judge Alvin Hellerstein, for the release to the American Civil Liberties Union of the CIA Inspector General’s 2004 report on the torture program.

Also released were Office of Legal Counsel documents from the Department of Justice here and here.

The ACLU explains the significance and Yale law prof and blogger Jack Balkin comments here.

The now-retired author of the CIA report, John Helgerson, is not happy with the many redactions.

For one thing, the names of those who were disappeared or tortured to death are omitted.

Nonetheless, the document dump, courtesy of the ACLU, has been a goldmine.

The New York Times excerpted the torture protocol Guidelines for Interrogators, and The Public Record latched onto the rendition procedures in a background paper that also described interrogation techniques.

imageEmptywheel Blog was quick to extract the most interesting Office of Legal Counsel nuggets, including a previously unreleased torture opinion by the odious Steven Bradbury (pic), hastily thrown together in 2006 after the Supreme Court affirmed that Common Article 3 applied to all detainees in US custody.

Bradbury’s opinions were mostly directed to CIA general counsel John Rizzo.

For years these gentlemen acted in their respective positions as head of OLC and CIA general counsel, because the Senate never had the stomach to confirm them.

In his 2006 opinion, Bradbury cheerfully parrots back the CIA’s claims that its secret prisons rigorously comply with Common Article Three’s prohibitions against cruel, inhuman and degrading treatment.

Bradbury finds everything – violence to the person, blindfolding, indefinite solitary confinement, persistent white noise, 24-hour lighting of cells, shackling – easily squared with the Geneva Conventions.

After all, he said, “While shackled, detainees are able to walk comfortably. Used in this limited and carefully calibrated way, shackling does not violate Common Article 3”.

And so on, for all techniques.

The Washington Independent has more on this memo, which could still be in effect today.

Another of Bradbury’s memos, dated July 20, 2007, gave the CIA guidance on black site interrogations then taking place 10-months after Mr Bush claimed he had closed all secret prisons.

Any suggestion of good faith in the preparation of these memoranda or the CIA’s reliance upon them vanishes when we learn that Bradbury provided hands-on advice, apparently mid-torture, on the treatment of a particular detainee and here and here again.

Emptywheel blog noticed the suspicious exchange of hand-carried, unsigned and undated “legal” notes – presumably the way things are done in other criminal enterprises, e.g. the mafia.

As Emptywheel also discovered, the actual document “Legal Principles Applicable to CIA Detention and Interrogation of Captured Al-Qa’ida Personnel” is nowhere to be found in the I-G’s CIA report.

A draft list of legal techniques is provided.

As the New York Times notes the ACLU documents show tight CIA control over every aspect of the (illegal) interrogations.

Happily, Obama has given the responsibility for future (illegal) interrogations to a non-CIA unit, but one still under an ex-CIA official, John Brennan.

Earlier this year, Mr Obama had to abandon Brennan’s appointment as CIA director for fear the Senate would never confirm him due to his association with CIA interrogations under George Bush.

imageThe I-G’s CIA report contained a laundry list of examples of war crimes and tortures inflicted by the Bush administration on those classified as enemies.

One of them was the threatened murder of the children of Khalid Sheikh Mohammed (seen here).

One wonders if similar threats of death to the first-born son were made by operatives of the Bush mafia against independently-minded DC judges.

Some judges, after initial outbreaks of courage, lost their nerve – e.g. James Robertson of Hamdan fame.

Robertson stopped the first Hamdan military commission, but allowed the second, equally invalid one, to go ahead.

In fact, this month Judge Robertson saw fit to deny habeas to a one-legged man taken prisoner in a hospital.

The CIA report also has an appendix called “Draft Guidelines on Medical and Psychological Support to Detainee Interrogations”, which should be particularly relevant for the accreditation boards of doctors and psychologists.

Unfortunately, the most interesting parts are blacked out.

Following the release of the CIA report Attorney General Eric Holder announced, as predicted, an extremely limited (only “excessive” waterboarding will be reviewed) inquiry into the CIA’s crimes.

No one now recalls that water torture, whether “excessive” or not, has always been illegal.

Dahlia Lithwick wonders if half an investigation is worse than none, but for the Wall Street Journal even Holder’s limited inquiry is too much.

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