Posts Tagged ‘torture convention’

On floor of Senate, Senator Feinstein speaks of grave constitutional violations by CIA (with video link)

Wednesday, March 12th, 2014

(Developing)

See:

Corine Lesnes (Washington), “Menacée par un rapport sur la torture, la CIA soupçonnée de piratage du Sénat américain, Le Monde, 12 mars 2012 (12.03.2014 (Mis à jour à 07h19).

Scott Wilson, “CIA feud with Senate panel puts lack of post-9/11 accountability in spotlight,” Washington Post, March 11, 2014.

Video: Sen. Dianne Feinstein (D-Calif.) spoke Tuesday on the Senate floor for almost 40 minutes about a controversy between the Senate Intelligence Committee and the CIA. Here are the highlights.

“Key moments from Senator Feinstein’s soeech,” Washington Post, March 12, 2014 (video).

Mark Mazzetti and Jonathan Weisman, “Conflict Erupts in Public Rebuke on C.I.A. Inquiry,” New York Times, March 11, 2014.

For background, see also the following article and articles cited therein:

“Torture and torture memos pose serious obstacle to confirmation of Carolyn Krass as CIA General Counsel,” The Trenchant Observer, December 20, 2014.

The Trenchant Observer

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

observer@trenchantobserver.com
www.twitter.com/trenchantobserv

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.

Obama’s New Year’s Resolutions for Foreign Policy in 2012

Thursday, January 5th, 2012

The Observer has been trying to get inside President Obama’s head for over two years. Recently, he may have succeeded, or had a very strange dream, in which the following was revealed:

Obama’s 10 New Year’s Resolutions for Foreign Policy in 2012

1. Ok, I will finally try to read through the impenetrable legalese of Philip Alston’s Report to the Human Rights Council on the legality under international law of U.S. drone attacks.

2. Admitting that public international law was not my favorite course in law school—in fact I can’t remember if I even took it—I will accept State Department Legal Adviser Harold Koh’s longstanding offer to lead me in a weekly tutorial on the subject for, as Koh puts it, “as long as it takes for (me) to get it.”

3. I accept the challenge to deliver a speech based on a rewrite of my Nobel Peace Prize acceptance speech in Oslo which includes the themes of “a vision of peace” and “how to get there”.

4. To make my rewrite of the Oslo speech easy for everyone to understand, I will even stop avoiding the use of the words “international law”, which should be easier after (2), if not (1).

5. I will ask Ambassador Koh to explain to me in plain English what some of these European and European-influenced international lawyers keep referring to as “dédoublement fontionnel”, which I think has something to do with the idea that nations should try to build and strengthen international law, instead of just trying to see what they can get away with. I don’t really get the point, but maybe I’ll understand better if it is spelled out in English.

6. I agree that we don’t really want to be giving a lot of money to governments who murder outspoken journalists like Syed Saleem Shahzad. I think Admiral Mullen said something about this. Dexter Filkins made a pretty compelling case that the murder was ordered by the highest officials in the Pakistani military in his New Yorker article on September 19. (Letter From Islamabad: The Journalist and the Spies–The murder of a reporter who exposed Pakistan’s secrets. The New Yorker, September 19, 2011.)

There are even reports that the Pakistani Ambassador to Washington, until recently, fears for his life in Pakistan as a result of “memogate”. But, as Richard Holbrooke used to stress, we have to deal with the Pakistanis, unsavory as that may be. I will agree to cutting U.S. aid to the military there by one half—from $1.3 billion to $650 million. Once they’ve arrested and tried the general(s) allegedly responsible for the order to murder Syed Saleem Shahzad, the other half of the aid will be restored.

7. I will enlist the CIA, with Leon Paneta’s help if necessary, in a secret program aimed at persuading the top civilian and military officials involved in Bush’s torture program to retire. Attorney General Eric Holder has concluded that none of them except a few low-level types should be prosecuted for torture, but if he has new evidence and wants to take up the issue again, I’ll let him. If other parties to the Torture Convention arrest some of these officials while they are traveling abroad, and ask us if it is OK for them to try them themselves, I’ll let the Attorney General make the call.

8. Ok, guys, I will finally issue an executive order that confirms my interpretation of U.S. laws banning torture as banning all kinds of torture, as that term is defined in the U.N. Convention Against Torture.

9. After completing (2) and (1), I will reconsider the position that U.S. citizens may be executed by drones or special commando operations without trial if they have been placed on a special targets list. I don’t really get the point about the fifth amendment language that “no citizen will be deprived of …life..without due process of law” and I don’t see how these guys can be given the right to an attorney, but I will commit to not invoking the “state secrets” doctrine to block further consideration of these issues by the courts.

10. Ok, while I think we already examined our strategy in Afghanistan in 2009, ad nauseum, I promise I will reread Ambassador Karl Eikenberry’s memos from November, 2009, for whatever that’s worth.

The Trenchant Observer

observer@trenchantobserver.com
www.twitter.com/trenchantobserv