Posts Tagged ‘Eric Lichtblau’

Holder’s Investigations into Torture and Covert Operations Leaks–An Obama Cover-up?

Tuesday, June 26th, 2012

Barack Obama thinks he’s always “the smartest person in the room”, and that he is a lot smarter than we are. Or maybe, accustomed as he is to a sycophantic press, he just thinks he is more clever than we are, and that he can sneak things by us and we won’t notice.

Obama, the Torture Convention, and Holder’s Investigations into Cases of Torture

An early example of the foregoing was the way President Obama dealt with the issue of potential prosecution of past and present officials for their involvement in the torture policy of the Bush administration.

First, Attorney General Eric Holder initiated an investigation into cases of alleged use of harsh interrogation techniques by the CIA, on August 24, 2009. At the same time he exempted from eventual prosecution all those who had acted pursuant to legal advice from the Justice Department, stating:

On January 2, 2008, Attorney General Michael Mukasey appointed Assistant United States Attorney John Durham of the District of Connecticut to conduct a criminal investigation into the destruction of interrogation videotapes by the Central Intelligence Agency. On August 24, 2009, based on information the Department received pertaining to alleged CIA mistreatment of detainees, I announced that I had expanded Mr. Durham’s mandate to conduct a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations. I made clear at that time that the Department would not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. Accordingly, Mr. Durham’s review examined primarily whether any unauthorized interrogation techniques were used by CIA interrogators, and if so, whether such techniques could constitute violations of the torture statute or any other applicable statute.

Second, the Justice Department concluded in a report on February 19, 2010, that the legal guidance drafted by Justice Department officials authorizing the full range of “harsh interrogation techniques” did not constitute professional misconduct.

Third, Holder announced on June 30, 2011 that the review of cases was complete and that only two cases, which involved the death in custody of detainees, would be prosecuted. None of the other cases warranted prosecution, he concluded, stating:

Mr. Durham has advised me of the results of his investigation, and I have accepted his recommendation to conduct a full criminal investigation regarding the death in custody of two individuals. Those investigations are ongoing. The Department has determined that an expanded criminal investigation of the remaining matters is not warranted.
–“Statement of the Attorney General Regarding Investigation into the interrogation of certain detainees, National Journal, June 30, 2011 (full text of statement),

See Eric Lichtblau and Eric Schmitt, “U.S. Widens Inquiries Into 2 Jail Deaths,” New York Times, July 1, 2011

The authors of the legal guidance authorizing torture (as it is defined in the Convention on Torture) were exonerated from “professional misconduct”. In other words, the Justice Department concluded that their drafting and approvals of legal memoranda authorizing torture did not constitute misconduct–i.e., that what appear to be clear violations of the torture convention do not constitute “misconduct”.  This is a rather extraordinary conclusion. 

The due obedience defense adopted by Holder protected all the individuals directly involved in executing acts of torture against detainees, with the two exceptions mentioned above. The policymakers at higher levels were never investigated for potential violations of the Torture Convention.

Obama and Holder thus avoided their legal duty, under both U.S. law and the Convention on Torture, to prosecute those responsible for the torture policy and its implementation. By June 30, 2011, the press and the media had long since turned their attention away from torture.  No one really cared about, even if they noticed, Obama’s and Holder’s legerdemain in excluding from the investigation both the principal policymakers involved in the formulation of the policy and those who actually carried it out.

The price paid by America in proceeding in this manner, in terms of international law, was high. The United States adopted the “due obedience” defense in cases involving torture (and by implication other international crimes), despite the fact that the “due obedience defense” was explicitly rejected in the Nuremberg Principles and at the Nuremberg trials of Nazi war criminals following World War II, and by the U.N. Convention Against Torture, to which the United States is a party. The Convention on Torture provides the following:

Article 2 (3). An order from a superior officer or a public authority may not be invoked as a justification of torture.

In addition, the Defense Department acted to remove the issue of torture from public debate through an order on November 11, 2009, which prohibited the release of any photographs depicting torture from September 11, 2001 through January 22, 2009.

See also Alexander Abdo, “The White House’s blemished record of disclosure on Bush-era torture; Since publishing the ‘torture memos’, the Obama adminstration has obfuscated far too much about CIA interrogation techniques,” The Guardian, June 26, 2012.

Nonetheless, under the Torture Convention other countries which are parties to the treaty have a continuing obligation to assume jurisdiction over individuals responsible for torture, including its planning and coordination, when such individuals are found within their territory. The second state must then inquire of the United States whether it wishes to prosecute the individual, and if it receives a negative reply, it is under a continuing obligation to prosecute the individual concerned.

At some point in the future, this requirement could complicate travel plans for U.S. officials from the Bush administration–including some still in the the government, such as John Brennan, the president’s counter-terrorism adviser.

See The Trenchant Observer, “The Clock is Ticking: U.S. Application of the Torture Convention,” February 20, 2010.

If one can draw one overriding lesson from the way the torture investigations were handled, it would have to be that Obama and Holder were using sleight of hand to give the impression they were investigating those potentially responsible for violating the Torture Convention, when they were not. They are clever lawyers, who need to be watched very carefully in order to fully understand what they are actually doing, and not just what they give the appearance of doing.

Obama’s Coverup of the White House Leaks?

Now, President Obama appears to be engaged in a similar act of legerdemain.

First, following a number of news stories in recent weeks and months which are obviously based on classified information, at a press conference on June 8, 2012, the president was asked by David Jackson of USA Today the following question:

Q Thank you, sir. There are a couple of books out with, essentially, details about national security issues. There are reports of terrorist kill lists that you supervise and there are reports of cyber-attacks on the Iranian nuclear program that you ordered. Two things. First of all, what’s your reaction of this information getting out in public? And secondly, what’s your reaction to lawmakers who accuse your team of leaking these details in order to promote your reelection bid?

In a lengthy (four minutes) but opague response, the president seemed to say that he would not tolerate such leaks, that mechanisms were in place to find and punish anyone guilty of leaking such classified information, which in some cases is even illegal, and that he would act to identify the source of the leaks.

For videos of his response, see White House Press Office, video, June 8, 2012.

The video also follows below:

Or see the C-Span video here.

The question and answer on this issue begins at minute 23:00 of the video.

A transcript of the question and answer regarding leaks follows:

THE PRESIDENT: Good morning. I just want to say a few words about the economy, and then I will take some of your questions.

All right. David Jackson.

Q Thank you, sir. There are a couple of books out with, essentially, details about national security issues. There are reports of terrorist kill lists that you supervise and there are reports of cyber-attacks on the Iranian nuclear program that you ordered. Two things. First of all, what’s your reaction of this information getting out in public? And secondly, what’s your reaction to lawmakers who accuse your team of leaking these details in order to promote your reelection bid?

THE PRESIDENT: Well, first of all, I’m not going to comment on the details of what are supposed to be classified items. Second, as Commander-in-Chief, the issues that you have mentioned touch on our national security, touch on critical issues of war and peace, and they’re classified for a reason — because they’re sensitive and because the people involved may, in some cases, be in danger if they’re carrying out some of these missions. And when this information, or reports, whether true or false, surface on the front page of newspapers, that makes the job of folks on the front lines tougher and it makes my job tougher — which is why since I’ve been in office, my attitude has been zero tolerance for these kinds of leaks and speculation.

Now, we have mechanisms in place where if we can root out folks who have leaked, they will suffer consequences. In some cases, it’s criminal — these are criminal acts when they release information like this. And we will conduct thorough investigations, as we have in the past.

The notion that my White House would purposely release classified national security information is offensive. It’s wrong. And people I think need to have a better sense of how I approach this office and how the people around me here approach this office.

We’re dealing with issues that can touch on the safety and security of the American people, our families, or our military personnel, or our allies. And so we don’t play with that. And it is a source of consistent frustration, not just for my administration but for previous administrations, when this stuff happens. And we will continue to let everybody know in government, or after they leave government, that they have certain obligations that they should carry out.

But as I think has been indicated from these articles, whether or not the information they’ve received is true, the writers of these articles have all stated unequivocally that they didn’t come from this White House. And that’s not how we operate.

Q Are there leak investigations going on now — is that what you’re saying?

THE PRESIDENT: What I’m saying is, is that we consistently, whenever there is classified information that is put out into the public, we try to find out where that came from.

Okay? Thank you very much, everybody. Thank you.

–Remarks by the President, June 8, 2012.

Subsequently, also on June 8, Attorney General Holder announced that he had appointed two Justice Department prosecutors (in the chain of command) to conduct investigations into at least some of the leaks. Republicans, meanwhile, have been calling for the appointment of an Independent Prosecutor.

Significantly, leaks relating to procedures employed and the president’s role in conducting “targeted killings” may not have been referred to Attorney General Holder for investigation, at least according to some reports.

See “White House adviser rebuffs questions on leak probe, amid warnings of security risk,” FoxNews.com, June 17, 2012. According to Fox News,

“Recent leaks on sensitive programs have contributed to two New York Times stories, one on the campaign of cyberwarfare against Iran and one on the president’s involvement in approving the “kill list” of terror targets for U.S. drone strikes — as well as the Associated Press newsbreak on a foiled bomb plot out of Al Qaeda in the Arabian Peninsula.

“Fox News has confirmed that investigations are currently looking into the leaks on the anti-Iran campaign and the bomb plot — it’s unclear whether any probe will examine leaks on the drone program.”

If true, this would appear to be a clear departure from what President Obama said he would do at the press conference on June 8, and to constitute either an admission that those leaks came from the White House or a coverup to hide the identities of the leakers.

In the meantime, judging from the time taken to conduct investigations into cases of individuals involved in torture, and the results, we are likely to be well past the presidential elections in November before any results of the investigations are announced. One can only speculate on what prosecutions, if any, might be undertaken, and when the corresponding individuals might be brought to trial.

The significant point here is not that the individuals who leaked this information must be tried, though certainly in the case of the cyber warfare against Iran a very strong case might be made.

It must be acknowledged that we as citizens depend on probing investigative reporting on covert and classified actions by our government, in order to have some sense of the policies the government is carrying out in our name. In general, journalists should not be prosecuted for gathering and reporting such information, or for maintaining the confidentiality of their sources.

The point is that Obama’s White House appeared to be leaking highly classfied information for political purposes, to portray the president as a strong and decisive leader on foreign policy. If this is true, it reflects the hubris and unprincipled partisanship of President Obama and his “foreign policy juggernaut”, as well as the incompetence of “the gang who couldn’t shoot straight”.

We deserve to know, soon, if that was the case and who the leakers were.

We also deserve to know if the president, at the June 8 news conference, was telling the truth in responding to the reporter’s question, in general, and in particular with respect to leaks regarding “targeted killings”.

If he wasn’t, as we noted on June 10, we may be witnessing a “Watergate moment”. 

The Trenchant Observer

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For links to other articles by The Trenchant Observer, click on the title at the top of this page to go to the home page, and then use the “Search” Box or consult the information in the bottom right hand corner of the home page. The Articles on Syria page can also be found here. The Articles on Targeted Killings page can also be found here.

Update: Torture, The STL in Lebanon, and Obama’s “Way Forward” in Afghanistan

Friday, July 1st, 2011

Today we introduce a new feature in The Trenchant Observer, an occasional column commenting on some of the more important events of the previous weeks in international affairs, as seen by the Observer.

This week’s stories include U.S. policy toward torture prosecutions, the Special Tribunal for Lebanon, and President Obama’s speech on “the way forward” in Afghanistan.

The United States’ Adoption of the “Due Obedience” Defense in Cases of Torture

This week the Justice Department announced that it would pursue investigations into two cases involving the deaths of detainees who were preseumably subjected to “harsh interrogation techniques” that went beyond the types of torture (as defined in the U.N. Convention Against Torture) that were permitted under the George W. Bush Administration’s “legal guidance”on “harsh interrogation technicques”.

See Eric Lichtblau and Eric Schmitt, “iU.S. Widens Inquiries Into 2 Jail Deaths,” New York Times, July 1, 2011

With that, the Justice department has ended its investigation into the broad class of cases that appear to qualify as cases involving the commission of torture under the terms of the Torture Convention, to which–it must always be stressed–the United States is a party.

By taking the position that it will not prosecute individuals for acts of torture if they were permitted under the legal guidance provided by their superiors in the Bush Administration, the United States has in effect accepted the “due obedience” argument rejected by the Nuremburg Tribunal in its trials of Nazi war criminals following World War II. This rejection of the “due obedience” defense is universally accepted in international law. It is expressly confirmed in the Torture Convention in Article 2 paragraph 3, which provides:

Article 2 (3). An order from a superior officer or a public authority may not be invoked as a justification of torture.

Other countries parties to the Torture Convention may now proceed to prosecute individuals suspected of committing torture found within their territory, without much concern that the U.S. will rquest their extradition for trial in the U.S., given the Justice Department’s position.

This signals a clear and final decision by the Obama administration not to pursue other cases of torture committed during the Bush administration.

It is significant for two reasons. First, it represents a final decision not to prosecute cases of torture by the state with primary jurisdiction, in violation of U.S. international legal obligations under the Torture Convention.

Second, it further opens the way for other states that are parties to the Torture Convention to prosecute U.S. officials for acts of torture they may have committed.

The Special Tribunal for Lebanon

The Special Tribunal for Lebanon has now issued arrest warrants and delivered the same to the Government of Lebanon for it to carry out the arrests.

In an earlier article, published on March 3, 2011, The Observer wrote:

In Lebanon, Hezbollah withdrew in January from the unity government of Sa’ad Hariri, among thinly-veiled threats of civil war, if the government of Lebanon does not break ties with the U.N. International Tribunal for Lebanon, established by the Security Council to investigate and try those responsible for the assassination of Hariri’s father, Rafiq Hariri, in 2005. Hezbollah is militating against the United Nations Security Council, international law, and the tribunal established by the Security Council because, according to reports, it fears the Tribunal will issue indictments against Hezbollah members in the coming days or weeks.

The Tribunal itself has a statute which establishes due process of law for the hearing of the charges which may be brought by the Prosecutor of the Court. Hezbollah is arguing, if effect, that the Court is biased before any judicial proceedings against its members are initiated, and without regard to the fact that they will have a chance for a fair hearing, the questioning of evidence and of witnesses, in any proceedings that might be brought. With black shirts menacing and threatening to take physical control of West Beirut and large parts of the country, Hezbollah has positioned itself as an anti-democratic force opposed to the struggle for the rule of law within Lebanon, and one opposed to the United Nations, the Security Council and international law.

Outside parties have rushed to mediate. A Saudi-Syrian initiative has now been replaced by a Qatari-Turkish mediation effort. Democracy is in the balance.

What is at stake is the authority of the U.N. Security Council, the United Nations Charter, and international law. If Hezbollah can halt the cooperation of the government of Lebanon with the STL by threats of civil war and dividing the country in two, its success would not bode well for the future of the International Criminal Court or other international tribunals that might be established in the future to deal with issues such as the Hariri assassination or issues of transitional justice.

We will now see whether Hezbollah has changed it position, and is willing to turn away from its opposition to international law, the United Nations, and the authority of the Special Tribunan for Lebanon established by the Security Council.

Democracy and the rule of law in Lebanon hang in the balance.

Obama’s “Way Forward” in Afghanistan

Recently Ambassador Carl Eikenberry completed his term as U.S. Ambassador to Afghanistan. He is being replaced by an extraordinarily skilled deplomat with deep experience in the Middle East and Southwest Asia, Ryan Crocker, the former U.S. Ambassador to Iraq.

Eikenberry’s departure should not go unnoticed, however. A former head of the coalition forces in Afghanistan before becoming Ambassador in 2009, Eikenberry headed an able diplomatic team. In 2009, toward the conclusion of President Barack Obama’s much-touted review of Afghanistan policy, cables written by Eikenberry in November, 2009 were leaked to the press.

In those cables, Ekenberry, who had a deep knowledge of Afghanistan before assuming his post as Ambassador, set forth his thinking about President Hamid Karzai’s government, the narrow limitations of the Afghanistan policy review, and his own cautionary words about the risks of proceeding with the “surge” of over 30,000 U.S. troops without a broader review.

Today, his words seem prophetic, and read more like the history of the last two years than the risk assessment they were originally intended to be.

See The Observer’s previous columns on this subject:

Eikenberry Memos Place Spotlight on U.S. Dilemmas in Afghanistan
January 27th, 2010

Commentary on Eikenberry Cables, Intelligence on Afghanistan
January 28th, 2010

On June 22, 2011, President Obama delivered an important speech to the nation setting forth his thoughts and policies on “the way forward in Afghanistan.”

Adminral Mullen, the Chairman of the Joint Chiefs of Staff, stated publicly that Obama’s new strategy of withdrawal represented more risk than he had originally been propared to accept. The military, including Petraeus, did not agree with what in all likelihood will represent an abandonment of the modified and limited counter-insurgency or COIN strategy Petraeus had led. Toby Harnden of The Telegraph reported, for example,

Senator Lindsey Graham, a Republican, said: “Petraeus loses, Biden wins. And I respect the vice president, but I think that we have undercut a strategy that was working. I think the 10,000 troops leaving year is going to make this more difficult.”

The Pentagon fought a rearguard action to prevent the surge force ordered into Afghanistan by Mr Obama in December 2009 from being pulled out by early spring next year but the withdrawal plan announced by Mr Obama, which had initially been tabled as a “compromise” by Robert Gates, the defence secretary, was not supported by Gen Petraeus.

There were reports of heated discussions during the month before Mr Obama’s prime-time speech on Wednesday night.

White House officials, aware of the soaring costs of the war and its questionable progress could be a political liability in the 2012 election, are said to have clashed with Gen Petraeus, who argued that with more time he could repeat his success in Iraq.

Harnden reported further that Obama had rejected Petraeus’ proposal to move thousands of troops from the south to the east “in order to build a counter-insurgency campaign there.” Obama also overrode Petraeus’ request to keep some of the 33,000 troops to be withdrawn by this spring until 2013.

Two military officers with close ties to Petraeus told “National Journal” that Gen Petraeus disagreed with Mr Gates’s compromise proposal and had not endorsed Mr Obama’s drawdown plan.

–Toby Harnden, “Admiral Mike Mullen says withdrawal plan is a risk,” The Telegraph, June 23, 2010

To those who have followed developments in Afghanistan over the last five to eight years, including readers of The Trenchant Observer, there was nothing new in his speech.

Rather, the Observer’s appraisal of Obama’s approach to international affairs, offered in an analysis of his failed leadership in Libya, seems to describe his Afghan policy as well:

When one looks hard at the decisions he has made, it is difficult to avoid the conclusion that the president’s primary objective is “to manage” international conflicts and affairs, as domestic affairs, in a manner that will enable him to be reelected in 2012.

Reelection is probably a goal of almost all politicians. Certainly there are exceptions. Winston Churchill comes to mind. But with Presdent Obama, it appears to be the primary and overriding goal.

It is perhaps the prism through which the president’s actions can best be understood. In this sense, Obama’s current policy towards Libya seems to be succeeding.

For commentary on the president’s speech, see

Jennifer Rubin, “Liberals give thumbs down on Obama’s speech,” Washington Post, June 23, 2011

A “conditions based” withdrawal of 10,000 troops is meaningless. The “conditions based” withdrawal of additional troops from the surge will meet its test if and when one or more provinces fall to the Taliban.

A collapse of the Afghan government is not to be ruled out. It could come at a most unexpected moment. If it were to come before the presidential elections in 2012, it could have a decisive impact on their outcome.

The folly of following a strategy in foreign policy that is decisively determined by domestic political considerations is likely to have hard lessons to teach its authors.

The Trenchant Observer

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REPRISE: Consorting with the Devil? The Debate over the Efficacy of Torture

Sunday, May 15th, 2011

Given the renewed debate in the U.S over the efficacy of torture in the wake of Bin Laden’s death, the article republished below, written on April 24, 2009 and first published here on October 1, 2009, puts current arguments in perspective.

*****************************************************

CONSORTING WITH THE DEVIL? THE DEBATE OVER THE EFFICACY OF TORTURE

April 24, 2009–The current debate over whether the use of torture by the Bush administration produced valuable information throws into sharp relief the moral depths to which the United States has sunk–from leading politicians and policymakers to large portions of the press and millions of average citizens. One cannot but wonder whether the rampant corruption in the mortgage market, in stock analysts’ recommendations, and in financial behavior which has brought this country to a new nadir, might not be related to a general lack of ethical and spiritual moorings in broad swathes of the population.

Painfully few religious, business or other leaders have taken continued, strong public stands against our use of torture. With notable exceptions, journalists even today shrink from describing so-called “harsh interrogation techniques” including water boarding as “torture”. Fear of litigation should not completely muzzle the press. The lack of awareness of history reflected in news reports and analyses and debates among officials is astounding, and suggests that the education of even many of our most educated public servants and journalists has a glaring gap at its moral core. That is, even with the best educations at the best universities, this ethical gap and lack of a moral core has not been remedied.

The principle of due obedience, rejected at Nuremberg and accepted but only for a while in Argentina, is quietly accepted without reference to either of those precedents. Or to the facts and considerations that led to the adoption and ratification of the torture convention.

To a nation which cheered episodes of “24” depicting torture by U.S. agents, the correct principle seems to be: “If torture works, we should use it to protect ourselves.”

It is a matter of immense sorrow to note that our leading pundits make scant reference to the fact that the sons and daughters of the Enlightenment, including the drafters of our own Constitution, rejected torture on moral, not utilitarian, grounds.

Let us then, for the sake of argument, postulate that torture in some cases produces useful information. Assuming, arguendo, that this is the case, the question for debate is simply this: “Is the use of torture, if effective, state behavior that is morally justified?

In other words, let’s skip the efficacy debate, which debases all who defend torture on utilitarian grounds. Let us debate the central moral issue: “Is torture, even if effective, morally acceptable, and why or why not?”

In this debate, it is worth bearing in mind that the entire edifice of international human rights rests on the inviolability of the physical integrity of the human person. This core principle is deeply rooted in the religious belief that in each human being there resides a part of the divine. It is a stunning testimony to the depths to which our nation has sunk to listen to the debate over the efficacy of torture as if effectiveness were the essential question. Instead of spymasters and doctors and psychologists who have consorted with the devil, it is time for us to listen to others, to our religious and moral leaders, and to politicians and other leading figures who believe there is a moral framework within which our actions—both as individuals and as a nation–are to be judged. It is time for these leaders to stand up and to speak out loudly and clearly on the morality of torture. It is time for them to take an unequivocal position on the torture our government has adopted as a policy and executed in the bowels of hell. It is time for them to demand the full truth and details of what our government has done, acting in our name.

There is no more fundamental human right than the right to the physical integrity of the human person. This right was recognized at Nuremberg, and enshrined in the Universal Declaration of Human Rights and the American Declaration of the Rights and Duties of Man, in 1948. It was specifically protected in the Geneva conventions on the law of war (humanitarian law), in 1949. The right is the cornerstone of numerous human rights treaties to which the U.S. is a party including the U.N. Convention on Civil and Political Rights, and the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The right is also fully protected in the European Convention on Human Rights, which establishes the constitutional norms and fundamental law on the subject in the nations of Europe.

So let’s hear the debate on whether the underpinnings of these human rights conventions are to be ripped out by allowing torture, and on the ultimate issue of the morality of the use of torture by the state against the individual. In engaging in this discussion, let us also avoid any semblance of the sophomoric debates that took place in our government, in which the question of torture was addressed as if it were a tabula rasa, in blithe ignorance of the history, religious positions, and legal developments that had taken place in the past.

The Trenchant Observer

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See also

The Trenchant Observer, “Bin Laden and the Debate Over Torture–Revived, May 7, 2011 ;

Mark Benjamin, “The torture debate is back, but what about the criminal probe?” TIME, May 4, 2011;

The Trenchant Observer, “The Clock is Ticking: U.S. Application of the Torture Convention,” February 20, 2010; and

The Trenchant Observer, “Craig’s Departure, the Ban on Publication of Any Torture Photograph, and Reaffirmation of the Prohibition Against Torture,” November 25, 2009

Bin Laden and the Debate Over Torture–Revived

Saturday, May 7th, 2011

Some former U.S. officials responsible for torture under the Bush administration have claimed that the trail to Bin Laden was uncovered by the use of torture. The Telegraph (London) reports:

Jose Rodriguez, the agency’s former head of counterterrorism, said vital information had come from bin Laden deputies Khalid Sheikh Mohammed and Aby Faraj al Libbi, who were subjected to “enhanced interrogation techniques”.

–Gordon Rayner, “Osama bin Laden dead: torture unlocked bin Laden hideout ex-CIA man says — Key intelligence that led the US to Osama bin Laden’s hideout was obtained under torture in secret “black site” prisons, a former CIA officer has claimed, The Telegraph, May 5, 2011.

John Yoo, the author the legal memoranda authorizing torture under the Bush administration, writes is on Op-Ed piece in the Wall Street Journal:


Sunday’s success also vindicates the Bush administration, whose intelligence architecture marked the path to bin Laden’s door. According to current and former administration officials, CIA interrogators gathered the initial information that ultimately led to bin Laden’s death. The United States located al Qaeda’s leader by learning the identity of a trusted courier from the tough interrogations of Khalid Sheikh Mohammed, the architect of the 9/11 attacks, and his successor, Abu Faraj al-Libi.

Armed with the courier’s nom de guerre, American intelligence agencies later found him thanks to his phone call to a contact already under electronic surveillance. Last August, the courier traveled to bin Laden’s compound, but it took another eight months before the CIA became certain that the al Qaeda leader was hiding inside.
Armed with the courier’s nom de guerre, American intelligence agencies later found him thanks to his phone call to a contact already under electronic surveillance. Last August, the courier traveled to bin Laden’s compound, but it took another eight months before the CIA became certain that the al Qaeda leader was hiding inside.

–John Yoo (Op-ed), “From Guantanamo to Abbottabad,” Wall Street Journal, May 4, 2011.

The apologists for the torture policy of the Bush administration raise a hard question for President Obama, but not the one they think:

Why have John Yoo and other architects of the Bush administration’s policy of torure not been prosecuted, in accordance with U.S. law and the international legal obligations of the United States under the Convention Against Torture?

See Mark Benjamin, “The torture debate is back, but what about the criminal probe?” TIME, May 4, 2011.

The Trenchant Observer, “The Clock is Ticking: U.S. Application of the Torture Convention,” February 20, 2010.

The Trenchant Observer, “Craig’s Departure, the Ban on Publication of Any Torture Photograph, and Reaffirmation of the Prohibition Against Torture,” November 25, 2009

The claims of the torture apologists have been rebutted by a number of current and past U.S. officials, though that is really beside the point here.

On the fundamental moral issues involved in the debate over the efficacy of torture, see The Trenchant Observer, “Consorting with the Devil? The Debate over the Efficacy of Torture,” October 1, 2009 (written April 24, 2009).

Meanwhile, there appear to be few moral doubts about the efficacy of torture among the leaders of Libya, Syria, and many other countries.

Are we OK with their use of torture? If not, what can we say to them to urge them to stop?

The Trenchant Observer

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The Clock is Ticking: U.S. Application of the Torture Convention

Saturday, February 20th, 2010

The U.S. Justice Department issued a report on February 19, 2010 finding that the lawyers who drafted “the torture memos” in the Bush administration were not guilty of professional misconduct. According to the New York Times,

After five years of often bitter internal debate, the Justice Department concluded in a report released Friday that the lawyers who gave legal justification to the Bush administration’s brutal interrogation tactics for terrorism suspects used flawed legal reasoning but were not guilty of professional misconduct.

The report, rejecting harsher sanctions recommended by Justice Department ethics lawyers, brings to a close a pivotal chapter in the debate over the legal limits of the Bush administration’s fight against terrorism and whether its treatment of Qaeda prisoners amounted to torture.

The ethics report is not the last word on the emotional national dispute about torture. In August, Attorney General Eric H. Holder Jr. opened a criminal investigation to determine whether the C.I.A. interrogation program broke the law, and that inquiry is expected to continue for months.

Eric Lichtblau and Scott Shane, New York Times, February 20, 2009

Under the U.N. Convention Against Torture and and Other Cruel, Inhuman or Degrading Punishment or Treatment, the United States, which is a party to the treaty, is obligated to prosecute or extradite individuals found within its jurisdiction who evidence suggests are guillty of torture.

Torture is defined in Art. 1(1) of the Convention as:

…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

There are no exceptions to the prohibition against torture, and superior orders are no excuse. Art. 2(2) and Art. 2(3) provide:

2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Each party is obligated under Article 4 to ensure that acts of torture as defined in the convention are crimes under its domestic law, as follows:

Article 4
1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

The obligations to arrest, investigate and prosecute or extradite to another party are clearly established in the Convention.

Article 5 sets forth the obligations of a party such as the United States to prosecute individuals for torture when the crimes were committed within its territory or by its nationals:

Article 5
1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:
(1) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;
(2) When the alleged offender is a national of that State;

The authority and obligation of other countries who are parties to the Convention to arrest and prosecute or extradite individuals who may be guilty of torture are set forth in Arts. 6 and 7, in the following terms:

Article 6
1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present, shall take him into custody or take other legal measures to ensure his presence….
2. Such State shall immediately make a preliminary inquiry into the facts.

4. When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said State and shall indicate whether it intends to exercise jurisdiction.

Article 7
1. The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

Studied Inaction

While President Barack Obama has ordered an end to torture on his watch, his actions in the area of bringing to justice those who may have violated the Torture Convention have been disappointing.

Obama has not separated from government service those who it has been acknowledged played a significant role in the torture program.

Obama’s Secretary of Defense, Robert Gates, has issued an overly broad directive banning the release to the public of any photograph relating to the commission of torture by U.S. officials from September 11, 2001 through January 22, 2009.

Now, the Justice Department internal review of the conduct of the lawyers who wrote and approved the “torture memos” has concluded, in what the New York Times described as the Department’s “final judgment”, that these individuals were not guilty of “professional misconduct” and that the corresponding legal opinions were “flawed but not grossly incompetent or unethical”.

To be sure, Attorney General Eric H. Holder, Jr. opened a criminal investigation—finally–in August, 2009 to determine whether the CIA interrogation program broke the law. According to the New York Times, quoted above, “that investigation is expected to continue for many months.”

When Chickens Come Home to Roost

Justice indefinitely delayed amounts to justice denied.

To avoid this result, the U.N. Convention Against Torture provides for arrest and prosecution by other Parties when the country with the primary responsibility fails to prosecute as required by the Convention.

Up until now, parties to the Convention have given the United States considerable leeway in dealing with apparent violations of the Convention by officials during the George W. Bush administration (2001-2009), for offenses that happened as long as seven to or eight years ago.

They have shown continuing forbearance in granting Obama time to investigate and prosecute those responsible for violations of the treaty. When it becomes clear to them that the president has no intention to prosecute these individuals, however, this forbearance could suddenly come to an end, at least in the mind of a prosecutor or an investigating magistrate in one or another country that is a party to the Convention.

Recommended Steps

At a minimum, the President should seek an opinion from the Legal Adviser at the State Department regarding the international legal obligations of the United States under the Torture Convention to prosecute those individuals responsible for violating the Convention’s prohibitions, and make that opinion public.

Moreover, he should instruct Attorney General Holder to broaden his inquiry beyond the CIA to include all government officials—not just CIA officials–who might have been guilty of violating the Convention and who the United States is obligated to prosecute under its terms.

Congress should hold monthly or at least quarterly hearings requiring the attendance of Attorney General Holder and full reporting by the Justice Department of the activities it has undertaken in its investigation(s) into the possible commission of torture or related crimes, the remaining steps to be undertaken by the Justice Department, and when the report and indictments where appropriate might be expected.

Some Obama supporters will argue that his administration should drag the investigation out, at least past the November 2010 elections. This may in fact be prudent and justifiable if such action is supported by legal and not merely political considerations. However, it will not be possible to drag the investigation out past the presidential elections in 2012.

The Clock is Ticking

If Obama does not get out in front of this issue, he could be thrown into a politically disastrous position if and when the judiciary of another country that is a party to the Convention arrests or issues an arrest warrant for an individual wanted for prosecution under the terms of the Convention.

The President should act now to avoid this eventuality.

Torture will not be done with him, or with us, until we are all done with torture.

The Trenchant Observer

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E-mail: observer@trenchantobserver.com
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