Detainee 063

The aftermath of the declassification of John Yoo's memo essentially validating torture came with a footnote:

For at least 16 months after the Sept. 11 terror attacks in 2001, the Bush administration believed that the Constitution's protection against unreasonable searches and seizures on U.S. soil didn't apply to its efforts to protect against terrorism.

That view was expressed in a Justice Department legal memo dated Oct. 23, 2001. The administration on Wednesday stressed that it now disavows that view.

The October 2001 memo was written at the request of the White House by John Yoo, then the deputy assistant attorney general, and addressed to Alberto Gonzales, the White House counsel at the time. The administration had asked the department for an opinion on the legality of potential responses to terrorist activity.

The 37-page memo has not been released. Its existence was disclosed Tuesday in a footnote of a separate secret memo, dated March 14, 2003, released by the Pentagon in response to a Freedom of Information Act lawsuit by the American Civil Liberties Union.

Whoops!

As if the original memo wasn't bad enough, we now see that this theory of unlimited executive power permeated the thinking on practically every issue. What's interesting is the timing. The memo was written in October 2001. We know that the Administration asked the phone companies before 9-11 to gain access to their communications networks. This seems to me to be an after-the-fact justification, as the torture memo probably was as well. The need for these memos was to indemnify illegal conduct. And it came from the top down.

Some legal experts and advocates said Wednesday that the document, written the month that the United States invaded Iraq, adds to evidence that the abuse of prisoners in military custody may have involved signals from higher officials and not just irresponsible actions by low-level personnel [...]

Scott L. Silliman, head of the Center on Law, Ethics and National Security at Duke University and a former Air Force lawyer, said he did not believe that the 2003 memorandum directly caused mistreatment. But Mr. Silliman added, “The memo helped to build a culture that, in the absence of leadership from the highest ranks of the Pentagon, allowed the abuses at Abu Ghraib and elsewhere.”

Because opinions issued by the Office of Legal Counsel are “binding on the Defense Department,” Mr. Silliman said, Mr. Yoo’s opinion effectively sidelined military lawyers who strongly opposed harsh interrogation methods.

Indeed. So much for "bad apples". Yoo is trying to wiggle out of his own culpability for abuses like Abu Ghraib, but it's clear that he was part of the executive machine that sought harsher and more violent interrogation methods, ostensibly to gather information but essentially to show their enemies that they mean business. In an incredible story in Vanity Fair, Philippe Sands recounts the days of 2002, when the Administration was pushing for techniques that amounted to torture. It all started with one interrogation of one detainee in Guantanamo Bay.

On a table before us were three documents. The first was a November 2002 “action memo” written by William J. (Jim) Haynes II, the general counsel of the U.S. Department of Defense, to his boss, Donald Rumsfeld; the document is sometimes referred to as the Haynes Memo. Haynes recommended that Rumsfeld give “blanket approval” to 15 out of 18 proposed techniques of aggressive interrogation. Rumsfeld duly did so, on December 2, 2002, signing his name firmly next to the word “Approved.” Under his signature he also scrawled a few words that refer to the length of time a detainee can be forced to stand during interrogation: “I stand for 8–10 hours a day. Why is standing limited to 4 hours?”

The second document on the table listed the 18 proposed techniques of interrogation, all of which went against long-standing U.S. military practice as presented in the Army Field Manual. The 15 approved techniques included certain forms of physical contact and also techniques intended to humiliate and to impose sensory deprivation. They permitted the use of stress positions, isolation, hooding, 20-hour interrogations, and nudity. Haynes and Rumsfeld explicitly did not rule out the future use of three other techniques, one of which was waterboarding, the application of a wet towel and water to induce the perception of drowning.

The third document was an internal log that detailed the interrogation at Guantánamo of a man identified only as Detainee 063, whom we now know to be Mohammed al-Qahtani, allegedly a member of the 9/11 conspiracy and the so-called 20th hijacker. According to this log, the interrogation commenced on November 23, 2002, and continued until well into January. The techniques described by the log as having been used in the interrogation of Detainee 063 include all 15 approved by Rumsfeld [...]

We talked about the methods of interrogation. “In terms of their effects,” she said, “I suspect that the individual techniques are less important than the fact that they were used over an extended period of time, and that several appear to be used together: in other words, the cumulative effect.” Detainee 063 was subjected to systematic sleep deprivation. He was shackled and cuffed; at times, head restraints were used. He was compelled to listen to threats to his family. The interrogation leveraged his sensitivities as a Muslim: he was shown pictures of scantily clad models, was touched by a female interrogator, was made to stand naked, and was forcibly shaved. He was denied the right to pray. A psychiatrist who witnessed the interrogation of Detainee 063 reported the use of dogs, intended to intimidate “by getting the dogs close to him and then having the dogs bark or act aggressively on command.” The temperature was changed, and 063 was subjected to extreme cold. Intravenous tubes were forced into his body, to provide nourishment when he would not eat or drink.

We went through the marked-up document slowly, pausing at each blue mark. Detainee 063’s reactions were recorded with regularity. I’ll string some of them together to convey the impression:

Detainee began to cry. Visibly shaken. Very emotional. Detainee cried. Disturbed. Detainee began to cry. Detainee bit the IV tube completely in two. Started moaning. Uncomfortable. Moaning. Began crying hard spontaneously. Crying and praying. Very agitated. Yelled. Agitated and violent. Detainee spat. Detainee proclaimed his innocence. Whining. Dizzy. Forgetting things. Angry. Upset. Yelled for Allah.

The blue highlights went on and on.

Urinated on himself. Began to cry. Asked God for forgiveness. Cried. Cried. Became violent. Began to cry. Broke down and cried. Began to pray and openly cried. Cried out to Allah several times. Trembled uncontrollably.

And people wonder why 81% of the country thinks we're on the wrong track. Yes, there's the economic ruin, but more than that there's a malaise, a cancer, and it's borne from the sin of torture, one of the original sins coming out of this Administration, bullshit about inherent executive power and "new kinds of enemies" and wartime interpretations of commander-in-chief authority. It's truly the banality of evil - lawyers pushing papers around, writing memos sanctioning madness. The men and women who facilitated this monstrosity need accountability for these crimes and how much they've harmed this country. I've been out there in favor of a Truth and Reconciliation Commission for a while, whether it's government-led or simply citizen-led. There must be a reckoning.

UPDATE: Scott Horton at Harper's has more, particularly about how this memo was used to sidestep Pentagon concerns and do an end run around the military's lawyers. This last bit is powerful:

On the other hand, I was amazed speaking with colleagues today who expressed their “torture exhaustion.” “But we already knew all this,” one said to me. “But how can you know about it, know that the nightmare still hasn’t stopped, and not be infuriated?” I answered. “Have you abandoned all sense of ownership, or at least of participation, in the American idea?”

In the end, this whole affair is about political hack lawyers behaving badly and doing so with impunity: the arrival of a culture of alcoholic frat boys chortling as they turn coathangers into branding irons, come now to middle age. When the scandal erupted, Rumsfeld and his crew turned to a standard “soldiers are cannon fodder” response–let’s scapegoat some grunts, and then it’ll all die out, they reasoned. And some two dozen low-level soldiers were court-martialed. Serious officers, and more to the point, the political hacks who crafted the torture system and hammered it through faced no accountability in any form. They depart with a big party and go off to take in six-figure salaries as oil company executives, it seems. The heroic figures in uniform who stood against the criminality are intimidated, hounded, denied promotions, forced out of the service. It’s all like some dark parallel universe–not the America I thought I grew up in.

Silence will buy us a continuation of this corruption of our nation. But isn’t it worth raising your voice and articulating your anger to get our country back? It should start with insisting that Congress use the tools it has–oversight and the budget–to force changes. Say “no” to torture; it’s an easy first step on the road back to decency.

The Goldsmith Standard

Jack Goldsmith is a hard-core conservative. But he still has vestiges of an understanding of civil liberties and the rule of law, and does not share a belief in the right of the executive to be essentially a king. This is why he left the Office of Special Counsel within 9 months, after seeing the depths to which the Bush Administration would sink to justify their lawbreaking. In an article for the New York Times magazine previewing his new book, Goldsmith explains the current members of the executive branch who desire nothing less than supreme power.

Several hours after Goldsmith was sworn in, on Oct. 6, 2003, he recalls that he received a phone call from Gonzales: the White House needed to know as soon as possible whether the Fourth Geneva Convention, which describes protections that explicitly cover civilians in war zones like Iraq, also covered insurgents and terrorists. After several days of study, Goldsmith agreed with lawyers in several other federal agencies, who had concluded that the convention applied to all Iraqi civilians, including terrorists and insurgents. In a meeting with Ashcroft, Goldsmith explained his analysis, which Ashcroft accepted. Later, Goldsmith drove from the Justice Department to the White House for a meeting with Gonzales and Addington. Goldsmith remembers his deputy Patrick Philbin turning to him in the car and saying: “They’re going to be really mad. They’re not going to understand our decision. They’ve never been told no.” (Philbin declined to discuss the conversation.)

In his book, Goldsmith describes Addington as the “biggest presence in the room — a large man with large glasses and an imposing salt-and-pepper beard” who was “known throughout the bureaucracy as the best-informed, savviest and most conservative lawyer in the administration, someone who spoke for and acted with the full backing of the powerful vice president, and someone who crushed bureaucratic opponents.” When Goldsmith presented his analysis of the Geneva Conventions at the White House, Addington, according to Goldsmith, became livid. “The president has already decided that terrorists do not receive Geneva Convention protections,” Addington replied angrily, according to Goldsmith. “You cannot question his decision.” (Addington declined to comment on this and other details concerning him in this article.)

This is just one example of the beliefs of Addington, "Cheney's Cheney," that there should be no checks on the executive. Paradoxically, the Office of the Vice President doesn't believe themselves to be a part of the executive branch, so it's just a helpful gesture to give the President a complete free hand to trash the Constitution.

Glenn Greenwald has much more.

Two revelations in particular are extraordinary and deserve (but are unlikely to receive) intense media coverage. First, it was Goldsmith who first argued that the administration's secret, warrantless surveillance programs were illegal, and it was that conclusion which sparked the now famous refusal of Ashcroft/Comey in early 2004 to certify the program's legality. Goldsmith argued continuously about his conclusion with Addington, and during the course of those arguments, this is what happened:

[Goldsmith] shared the White House's concern that the Foreign Intelligence Surveillance Act might prevent wiretaps on international calls involving terrorists. But Goldsmith deplored the way the White House tried to fix the problem, which was highly contemptuous of Congress and the courts. "We're one bomb away from getting rid of that obnoxious [FISA] court," Goldsmith recalls Addington telling him in February 2004.

Their goal all along was to "get rid of the obnoxious FISA court" entirely, so that they could freely eavesdrop on whomever they wanted with no warrants or oversight of any kind. And here is Dick Cheney's top aide, drooling with anticipation at the prospect of another terrorist attack so that they could seize this power without challenge. Addington views the Next Terrorist Attack as the golden opportunity to seize yet more power. Sitting around the White House dreaming of all the great new powers they will have once the new terrorist attack occurs -- as Addington was doing -- is nothing short of deranged.

Contrary to the claims made by Bush and his followers ever since the NSA scandal arose, their real objective in secretly creating "The Terrorist Surveillance Program" was never to find a narrow means to circumvent FISA when, in those few cases, it impeded necessary eavesdropping. Rather, the goal was to get rid of FISA altogether and return the country to the days when our government could spy on us in total secrecy, with no oversight. Of course, until they could "get rid of" that law altogether -- through the only tactic they know: exploitation of Terrorism -- they simply decided to violate it at will.

Read the whole thing. The Bush Administration has been using discredited legal reasoning to do away with federally and Constitutionally mandated laws without any compunction. Their own internal, warped logic was the only logic that mattered, certainly not the logic and legal reasoning that is supposed to govern the country. This is the kind of government you would expect in a military junta, quite frankly. And as Greenwald rightly points out,

Perhaps most infuriating is the fact that, as it turns out, violating these laws in secret was not even necessary -- because Congress was, and still is, more than happy to legalize whatever they wanted to do. Almost immediately after the Supreme Court finally imposed some mild limitations on the President's detention and interrogation powers -- first in Hamdi, then in Hamdan -- Congress, as Goldsmith says, "promptly passed a law that gave him everything he asked for, authorizing many aspects of the military commissions that the Supreme Court had struck down."

Same with the FISA court, just denuded by Congress.

Until we have a Democratic Party with the conviction to put an end to this total disregard for the normal functions of government, people like Addington and his boss will continue to reach for more and more power. And the next executive isn't likely to throw those new powers away.

Next War Update

This Iranian capture of 15 British soldiers is almost more troubling than if they were American soldiers, if your goal is to avoid war, because this could drag England kicking and screaming into a conflict as well. I think that the Brits were probably in Iranian waters, and I don't think this is a made-up Gulf of Tonkin-like event; the Iranians have every much a reason to be belligerent as the West at this point. They need leverage to continue their nuclear program or to get a favorable deal, and to rally flagging public support at home ("the infidels are attacking"!). In the end, I don't think Iran wants war but a pretext to prove their biases, and they are likely to seek a peaceful end here.

However, I do agree that it's worrisome, now that the British soldiers are being interrogated, that we have to hope that Tehran is not as cavalier about the Geneva Conventions as Washington has been all these years.

Justin Raimondo has a piece up about this situation as well. Excerpt:

It happened on the eve of a vote in the UN Security Council to impose stricter sanctions on Iran and in the wake of escalating rhetoric from U.S. government officials blaming Iran for anti-occupation activity in Iraq. On top of that, recent events include the kidnapping of Iranian consular officials in Irbil, Kurdistan, by U.S. forces, reports of covert U.S. support for terrorist attacks inside Iran, the "disappearance" of a major Iranian military figure in the elite Revolutionary Guards unit, and suspicions that the Mossad may have had a hand in killing a renowned Iranian nuclear scientist. Add it all up, and there seems little doubt as to who carried out what seems like a brazen provocation.

I agree, but it's just as provocative on Iran's side as it is the US side. Raimondo is skeptical, so read the whole thing.