HARPER: TAKING STOCK OF THE TORTURE REPORT

It is a standard procedure for criminal prosecutors targeting large-scale criminal enterprises to "start at the bottom" and work up through the ranks of the organization to ultimately bring to justice the higher-ups who ordered and ran the crimes.  The record on the torture program of the CIA is now partially revealed, with the release of the 500-page unclassified summary.  Col. Lang is absolutely correct that the full, unredacted 6,000 page SSCI report should be declassified and made public.  It should serve as the prosecutors handbook for pursing a RICO case against the entire apparatus behind the policy. This is not only a matter of sound criminal law.  It is vital for the United States to be able to move beyond the post-9/11 slope towards unconstitutional police-state authority vested in the executive branch and its agencies. 

CIA officers interviewed by the media since the release of the SSCI summary have made clear that many officers inside the Agency knew that the program being mandated from the Bush-Cheney White House was illegal and would lead to disaster.  They explained that many CIA officers refused to participate and, as a result, outside contractors were widely used--including the so-called psychologists who adopted the S.E.R.E. methods to the "enhanced interrogations." 

This program was ordered, top-down by Vice President Cheney and others in the White House.  The CIA attorneys went to the Department of Justice to obtain authorization for the "enhanced interrogation" methods employed.  The culpability within the Bush-Cheney Executive Branch extends beyond the CIA. 

 

Furthermore, the same DOJ that approved the techniques employed in some of the most gruesome instances covered by the SSCI report conducted an investigation, during the Obama Administration, into the program.  This DOJ investigation blocked the Senate investigators from being able to interview key witnesses, who were facing possible criminal charges, based on their depositions to Congressional investigators that are not covered by DOJ immunity agreements.  In effect, the DOJ obstructed the SSCI investigation, when the Justice Department should have stayed out of the affair on the basis of a clear conflict of interest. 

In some recent news coverage, some Bush era officials have defended the "enhanced interrogations" program by citing the Obama Administration's drone kill program.  One crime does not justify another, and in this case, a thorough probe into what was done under Bush and Cheney should not ignore the fact that similar egregious violations of our Constitution have gone on under Obama as well.   

A full clearing of the air is long overdue.  President Obama would not be flaunting his drone-kill program if the top-level Bush-Cheney Administration officials had been held accountable for their actions in the CIA's "enhanced interrogations" program. 

I am not an attorney, so I am not in a position to recommend a specific venue.  It would appear to me that a Congressional-mandated special prosecutor with adequate staffing and a broad enough mandate should pursue these potential crimes.  Yes, foreign governments should be encouraged to take the initiative and bring CIA officers and other participants--including the contractors and so-called professional psychologists who were pivotal to the program--to justice.  But I hate to think that our judicial system and our culture has become so depraved that we cannot mete out similar justice right here at home. 

 

 

Comments

[FB Ali]

Harper,

Everything you say is valid and justified. Unfortunately, it will never happen.

The US government has, since 9/11, placed itself above both domestic and international law. As was then said, "We will create our own reality". This is part of that reality. As is the 'right' to use force anywhere it pleases, including killing anyone it wants to.

An observer can derive some comfort from the fact that many Americans do not accept this point of view, notably the great majority of the members of this Committee. But that does not change this new reality, which the world must now live with.

[Bandolero]

Harper

"It would appear to me that a Congressional-mandated special prosecutor with adequate staffing and a broad enough mandate should pursue these potential crimes."

That sounds to me like the UN demand that the Israeli government shall investigate which crimes the Israeli Army committed against Palestinians. The result of the investigation was always that the Israeli army is the most moral army in the world, while, maybe, some small mistakes were made. I believe results by a US Congress investigation into torture would be similar. I t would boil down to the Israeli Lobby investigating what crimes their guys in the US state apparatus commit. Result would be none.

"It is vital for the United States to be able to move beyond the post-9/11 slope..."

Well, here is a topic I would think it would deem more attention: 9/11 itself. I think that topic would be a very good point to start investigations.

A very good beginning to do this, would be, I think, to declassify the 28 pages of an old 911 report:

http://28pages.org/

[RetiredPatriot]

FB Ali says "The US government has, since 9/11, placed itself above both domestic and international law. As was then said, "We will create our own reality". This is part of that reality. As is the 'right' to use force anywhere it pleases, including killing anyone it wants to."

Thank you for what is the best explanation of what has happened to my nation in the past 15 years. Maybe someday a majority of my fellow citizens will have had enough and demand adherence to the rule of law by all. Maybe. More likely the USA's global competitors will continue to accelerate into great power on the failure of America to live up to its greatest strength - the soft power it once held because it was a nation of laws and not men. One day someone else's drones will fly overhead an American city picking off the family BBQ mistaken for a "terrorist meeting." If we are lucky, maybe some other great power will deploy their covert forces to "render" one or more of the architects of our Great Descent and turn them over to the ICC for war crimes trials. (I nominate David Addington as the first one!) When these come to pass I will only console my fellow citizens that we all allowed the sad state of affairs to happen and now we all will face the consequences.
RP

[William R. Cumming]

When Deputy NSC Adviser to the President Sandy Berger [he has a law degree] stated flatly in an open forum that "anything a President does is legal"!

This attitude has permeated the lawyer dominated federal cadres since at least 1980.

The so-called Rule-of-Law [meaning no person above the law]
has been largely rendered largely an irrelevancy by none other than the legal profession.

Somehow the legal standard of the criminal law "beyond a reasonable doubt" became the standard for the civil law twisted into well "it violates no criminal law"! Note that criminal statutes are narrowly construed [really strictly construed]with no implementing regulations. So instead of identifying the best legal position or even all legal options the legal profession is content to sign off on almost anything as long as they get paid [even government lawyers for whom the US Constitution they also swear to protect not any person or office].

Harvard where the President attended law school and taught has since the 1970's has since then been the home of so-called "American Legal Realism" which to my mind creates no standards such as adherence to "Natural Law" and is more akin to the "situation ethics" that marks the BOOMERs [1945-1964]!

The great tragedy of course is that the legal profession largely dominated American politics for the first two hundred years but its lack of vision probably has precluded our American from celebrating its survival by 2076!

It is almost laughable that you could have a burglary and a semen stained dress as "being high crimes" when the Imperial Presidency has largely attracted men who think if elected they are important. Maybe so!

[MEP]

"anything a President does is legal" Not meaning to nit pic but the philosophy behind the phrase was first attributed to Richard Nixon.

http://www.historycommons.org/context.jsp?item=a040677nixonnotillegal

.........yep, I'm that old and remember it well.

[bth]

Did the VP ever have authority to order anyone including the CIA? Even if Cheney is a satanic bastard, doesn't authority and responsibility reside soley with the President?

[Doug Tunnell]

Sir,
I wish I could "derive some comfort" from the results of this poll of many Americans' opinions regarding torture...

http://www.cbsnews.com/news/torture-and-reaction-to-the-senate-intelligence-report/

...a shame...

[William R. Cumming]

Thanks and a reminder that Nixon exemplied his legal profession!

Disclosure: If I had not been draft bait Nixon, Mudge, Rose etc. might have hired me in 1967!

[William R. Cumming]

bth! YUP! Oddly the Office of the VP has greatly impacted American history IMO! And not for the better.

[centercut]

They have always cited the AUMF as their legal justification for all actions by the President or his designee, including the absence of due process. When Hamdan v. Rumsfeld came to the Supreme Court, their argument was "We can do anything because AUMF says so and we are at war."

[confusedponderer]

See it this way: Americans don't want to torture because they are sick lunatics that take delight in this.

Those who are for torture were talked into believing torture to be both necessary and effective, nevermind that torture is illegal and not permissible under any circumstances.

When the Abu Ghraib pictures came out I debated torture with Americans. I stated that torture is illegal and not permissible under any circumstances.

For stating that simple fact I was then attacked by outraged Americans in a discussion for being 'crass', 'rancorous', 'partisan' and finally 'anti-American'. And those were the friendly terms.

I write this to make a point: America was in a strange state of mind after 9/11. Americans have settled down somewhat, if your poll is any indication:

Ten years back many of the folks I debated disputed angrily that waterboarding was torture. That was apparently, because they heard that being said over and over on TV channel of choice (guess ...). And then there was 24.

And their mistaken views are not difficult to explain - they were given the clues clearly enough:

Bush blathered stuff like Geneva Conventions being 'vague' and 'I don't recall' Gonzales caklled them quaint and obselete - both statements being in equal parts false, ludicrous and outrageous at the same time. There was a lot of obfuscation and disionformation being spread by the administration at the time. But coming from where they came (witness the power of the bully pulpit) it had effect.

To make a long story short: The Bushmen and Cheneyites, their legal silvertongues and their willing enablers in the press like Marc Theissen had had a better part of a decade to scare the US publish shitless and suggest to them that torture is an effective remedy to their fears, and that in any case, the terrorists have it coming and deserve it.

It takes time to overcome that. Perhaps another decade. I see the 'accounting without accountability' of the Senate report as not more than a start. Which is good news anyway.

[Laura Wilson]

Doug, Americans trust our media and politicians to tell us the truth…at least, that is what seems to be driving this "torture is okay" for our citizens. So few politicians and almost no one in the media have stood up to say "It is not okay. It is morally repugnant. Americans do NOT do this."

Instead, we have all allowed "Fear the mind-killer" to rule us. That is how Chaney wins…with fear.

[robt willmann]

The last time Congress got involved in passing a law to allow for an outside lawyer to investigate, operate a grand jury, and bring criminal charges was the Independent Counsel statute, which came about after the Watergate scandals during the Nixon administration. Here is an informative 51-page law review (journal) article about that law which had a section that it would automatically expire if not renewed; it expired June 30, 1999--

http://www.law2.byu.edu/lawreview/archives/1999/4/cook.pdf

Although the article is kind of dry, dull reading as law review articles often are, it can be downloaded and contains a history of the law and other information so that non-lawyers can gain a lot of understanding from it.

The last time there was a major investigation involving the CIA and intelligence community using the Independent Counsel law that I am aware of was the Iran-Contra scandal during Ronald Reagan's presidency. Lawrence Walsh was appointed independent counsel by a panel of federal judges. Walsh had been a federal trial court judge for a short while before President Eisenhower appointed him to be Deputy Attorney General, the number two position in the Justice Department. Walsh had extensive trial experience and was known to be a stickler for detail and preparation. He encountered all the usual "secret", "classified", and "national security" roadblocks such investigations run up against, but in every case that went to trial, the jury found the defendant guilty.

The Oliver North and John Poindexter cases were reversed on appeal, but not because of a lack of evidence; rather, the reason was that they had been given "use immunity" when they testified before Congress, and since some of the trial witnesses might have heard some of the immunized testimony on television or elsewhere, that might have influenced their testimony at trial.

The summary of the prosecutions from Walsh's report is here--

https://www.fas.org/irp/offdocs/walsh/summpros.htm

The first volume of Walsh's report is here--

https://www.fas.org/irp/offdocs/walsh/

Some of these people have resurfaced. Elliott Abrams, who was pardoned by Bush sr., showed up in the Bush jr. administration on the National Security Council, of all places, in a senior position about the Middle East. John Poindexter was the head of the "Total Information Awareness" project for Bush jr. that even Congress cut off the money for, when it was revealed that it included what amounted to domestic surveillance. So then NSA directors Michael Hayden and Keith Alexander went ahead and did it anyway, about which NSA veterans William Binney, Thomas Drake, and others complained, but of course nothing was done except that Binney and Drake were raided by the FBI. Oliver North has shown up on the Fox News television channel.

In the current torture scandal, an investigation for the purpose of possible prosecutions would be easier in part than what Lawrence Walsh faced because the Senate Intelligence Committee has already used CIA documents to demonstrate the problem.

But as others have pointed out, nothing will be done by the federal Justice Department, as president Obama has already said we should look forward, not back. And his new appointment for Attorney General, Loretta Lynch, is not going to rock the boat; she was part of the sweetheart deal of no prosecution of the HSBC Bank for multiple criminal violations--

http://observer.com/2014/11/obama-pick-for-ag-let-hsbc-off-the-hook/

http://www.rollingstone.com/politics/news/gangster-bankers-too-big-to-jail-20130
214

At this point, the only possibility is action by a foreign government, and a while back there actually was one over a kidnapping for a "rendition" for the suspect to be sent elsewhere to be tortured. The investigation and prosecution of some CIA people (and perhaps other operatives) was successful, too, and done by those people who close their stores in the middle of the day and take a long lunch and socialize, which means they can really talk to people and investigate when they want to. Obviously, the U.S. Department of Justice needs to take lessons from Italy.

[different clue]

I note also that Cheney and all the others propagate the lie that America had no attacks after 9/11. The MSM aids and abets this lie by carefully leaving the anthrax attacks unmentioned.
But the anthrax attacks were very useful for raising the level of fear and terror in this country.

I personally believe that CheneyBushite elements within government were themselves the people who obtained and mailed out the anthrax, precisely for its terror-augmentation impact.

[Doug Tunnell]

I have a sincere and worldly friend and former colleague who believes that this is all " just politics. Feinstein's legacy play. McCain's senile anyway. Liberals unchained. 'EIT's ( not 'torture,' heaven forbid !) do not shape and reveal who we are as a nation..."

Complete denial.

So, I want to believe your closing comment : "It takes time to overcome that. Perhaps another decade. I see the 'accounting without accountability' of the Senate report as not more than a start. Which is good news anyway."

But how many more of our own can we debase and how many new, mortal enemies can we create in the interim ?

Thank you for the glimmer of optimism...but I fear that instead of a start, the Senate report will simply be the story's end.

[Doug Tunnell]

Sad but true. Plenty of hard, confirming research on the torture and abuse of prisoners in our custody was available ( thanks to the ACLU's Freedom of Information Act requests) back in 2005. That those documents were made public in response to the ACLU's legwork rather than that of news organizations is still hard for me to swallow.

[William R. Cumming]

Thanks for this comment! Do you know of any comprehensive Iran=Contra book?

[confusedponderer]

"I do not endorse torture because, according to the pro's, it doesn't work AND it's immoral."

If those pros valued the rule of law the obvious **illegality** should concern them too.

In that sense, you defer to their judgement too much.

[confusedponderer]

... because it is wanting.

[LeaNder]

Thanks, robt, although I have not progressed further then the Bigham Young Law Review article by now.
If someone looks into larger historical contexts, it's never dry reading for me. Interesting reading for this nitwit.

[William R. Cumming]

bth! I should have added that the VP can be delegated authority by the President. IMO this should be a much more formal written process than has been done historically.

Cheney clearly was given a large amount of authority informally and clearly abused his authority over and over because Bush was not a strong President and even in FP was subject to following advice of the last person he talked to on any subject. When Cheney selected himself as the best candidate for VP a clear and present danger of abuse of power existed from that time even before election.

[William R. Cumming]

Most of the permanent committees in the House and Senate have subcomittees on INVESTIGATION!

[William R. Cumming]

I notice Brennan has failed to discuss or disclaim his own role in the CIA's use of torture in his rebuttal speech. I would not buy a used car from this guy.

[robt willmann]

WRC,

You asked about books on the Iran-Contra matter. I suggest the following two.

"Firewall", by Lawrence Walsh, the independent counsel. ISBN number 0393-040-348.

"Lost History: Contras, Cocaine, the Press, and Project Truth", by Robert Parry. ISBN number 1893-517-004. Parry was an insider "establishment journalist", but had a falling out with the "main stream media" when he wanted to continue to be a reporter and not a stenographer. So he has been doing reporting through a website and writing books. Parry talked about his book on Iran-Contra which was televised by C-Span back in January 2000 and can be seen here--

http://www.c-span.org/video/?154739-1/book-discussion-lost-history-contras-project-truth

There is a new book out by Malcolm Byrne, who works at the National Security Archive at George Washington University. I have not read the book and do not know if it is worthwhile or not. C-Span television had him on in September of this year talking about his book, and he was interviewed by Bruce Reidel, who worked for the CIA for a long time and is now at the Saban Center at the Brookings Institution foundation. The C-Span program can be seen on its website here--

http://www.c-span.org/video/?321315-1/book-discussion-irancontra

[ThePanzer]

The polls show Americans got what Americans wanted. And they wanted bread and circuses and not to have to worry about anything beyond their immediate borders. They aren't too picky about the methods used either, especially if it's on someone brown-skinned who prays to a different god.

The old republic is dead. It was on life support for a long time, but 9/11 was our rubicon.