Bruce Fein on presidential powers: The more things change...(Aviso:graphic torture)

[Winehole23]

Warning: this article contains a brief but very graphic description of "enhanced interrogation"






FEIN: The more things change (http://www.washingtontimes.com/news/2009/feb/17/the-more-things-change/)

Bruce Fein
Tuesday, February 17, 2009



http://media.washingtontimes.com/media/img/photos/2009/02/17/CM-021709FEIN.jpg
COMMENTARY:
President Barack Obama (http://www.washingtontimes.com/themes/?Theme=Barack+Obama)'s campaign theme should have been, "The more things change, the more they stay the same."



The personality-driven media has juxtaposed Mr. Obama's pledge to clean the nation's Augean Stables of rich lobbyists and insiders who profited on special access to the corridors of power; and, his appointments or nominations of delinquent taxpayers to his Cabinet (with jurisdiction over the Internal Revenue Service), and appointment of a mega-lobbyist for a defense contractor as deputy secretary of defense.



But Mr. Obama's more alarming betrayal concerns the imperial powers of his office, which he inherited from the Bush-Cheney duumvirate. He has either embraced or acquiesced in every one of their usurpations or abuses (some perpetrated with congressional collaboration).



Then-Sen. Obama had assailed the Bush-Cheney invocation of the non-constitutional state secrets privilege to block litigation by victims of egregious constitutional violations seeking damages from the wrongdoers. The case of Binyam Mohammed, an Ethiopian native, is exemplary. He sued a subsidiary of Boeing for arranging flights to execute the Bush-Cheney "extraordinary rendition" program. It entails kidnapping terrorism suspects based on the president's say-so alone and transporting them to other countries for torture. Mr. Mohammed alleged that after his kidnap and transport to Morocco, "he was routinely beaten, suffering broken bones and, on occasion, loss of consciousness. His clothes were cut off with a scalpel and the same scalpel was then used to make incisions on his body, including his penis. A hot stinging liquid was then poured into open wounds on his penis where he had been cut. He was frequently threatened with rape, electrocution and death." United States (http://www.washingtontimes.com/themes/?Theme=United+States) laws make torture a criminal offense irrespective of the nationality of the violator or the place of the crime.



Last week before the United States Court of Appeals for the Ninth Circuit, President Obama echoed the position of Bush-Cheney that the state secrets privilege required dismissal of Mr. Mohammed's suit. In other words, individual constitutional rights of the highest order should be sacrificed on the altar of national security. At the same time, Mr. Obama was deciding to defend the arch-defender of torture, former Deputy Assistant Attorney General John Yoo, from a suit brought by Jose Padilla. The complaint alleges that Mr. Yoo concocted the legal justification for detaining and harshly interrogating Padilla as an "enemy combatant" without accusation or trial. (The United States later recanted its enemy combatant allegation).



Mr. Obama invoked the state secrets privilege a second time last week to block litigation challenging the legality of the Bush-Cheney "Terrorist Surveillance Program" (TSP) that he had assailed as a senator. For five years, the TSP targeted American citizens on American soil for electronic surveillance on the president's say-so alone to gather foreign intelligence in contravention of the warrant requirement of the Foreign Intelligence Surveillance Act (FISA). Intentional violations are federal felonies.



Candidate Obama faulted the Bush-Cheney reign for tolerating or encouraging lawlessness. The president is obliged under the Constitution to take care that the laws are faithfully executed. Waterboarding has been prosecuted as torture since the Spanish-American War of 1898. Former Republican Secretary of Homeland Security Tom Ridge concurs that waterboarding is torture. Ditto for Attorney General Eric H. Holder. Former President Bush and Vice President Cheney have acknowledged their authorization for waterboarding at least three detainees. The United States torture prohibition makes no exceptions for times of war (although mistake of law is a defense). Mr. Obama, however, has virtually renounced faithfully enforcing the laws against torture (and the criminal prohibitions of FISA and kidnapping) as regards the former president and vice president. Mr. Obama's inaction is tantamount to a pardon, but which uncourageously evades the political accountability that President Gerald Ford accepted for pardoning former President Richard M. Nixon. Pardons, moreover, require the recipient's concession of criminal culpability, and prevent the violations from becoming legal precedents that would lie around like loaded weapons ready for use by any White House successor who claims an urgent need.



Then-Sen. Obama descried the Bush-Cheney invocation of executive privilege to prevent former White House officials Karl Rove and Harriet Miers from even responding to congressional subpoenas for testimony about the firings of nine United States attorneys. That extravagant and unprecedented claim would have enabled President Nixon to muzzle his Watergate nemesis, former White House counsel John Dean, from testifying before the Senate Watergate Committee about Oval Office conversations implicating the president in obstruction of justice. Mr. Obama, however, is now hedging over whether to defend Mr. Rove's non-responsiveness to a new congressional subpoena.



President Obama has left undisturbed the bulwark of other Bush-Cheney usurpations or constitutional excesses: the Military Commissions Act of 2006; the Foreign Intelligence Surveillance Act Amendments Act of 2008, which eviscerates the Fourth Amendment; the Status of Forces Agreement with Iraq concluded by Bush-Cheney as an executive agreement (despite its placement of U.S. troops under foreign command) to evade Senate scrutiny as a treaty requiring a two-thirds majority; and, President Bush's hundreds of signing statements.



If the American people and Congress do not wake up from their Obama infatuation, presidential powers will soon be indistinguishable from King George III's that provoked the 1776 Declaration of Independence.

[LockBeard]

If the American people and Congress do not wake up from their Obama infatuation, presidential powers will soon be indistinguishable from King George III's that provoked the 1776 Declaration of Independence.

I've been awake the whole time, and guess what. There is nothing you can do.

[Winehole23]

I've been away the whole time, and guess what. There is nothing you can do.Vague. What do you mean?

[burntorange]

Why is the terrorist wolf black?

[LockBeard]

Vague. What do you mean?

oops, my post should have said "Awake" and not "away". Not sure what happened there.

[Winehole23]

oops, my post should have said "Awake" and not "away". Not sure what happened there.Cocaine is a hell of a drug.

[DarkReign]

http://i71.photobucket.com/albums/i148/HemanSparks/060809-7989sl2181.jpg

[Winehole23]

More on the Binyan Mohammed case from Glenn Greenwald (http://www.salon.com/opinion/greenwald/2009/02/19/exceptionalism/index.html):


In May, 2008, Mohamed was accused in a Guantanamo military commission with various acts of Terrorism that carry the death penalty if he's convicted. The key evidence against him are the confessions the U.S. obtained during that 2002-2004 time period. After charging him, the U.S. Government refused to provide his lawyers with documents and other evidence that would enable Mohamed to prove that those confessions were obtained via torture. The British government acknowledged that it possessed "exculpatory" evidence -- i.e., evidence showing that Mohamed's confessions were extracted by violently torturing him (including reports it received from the U.S. itself about the circumstances of Mohamed's interrogations) -- but the British Government also refused to disclose that exculpatory evidence to Mohamed so that he could use it to defend himself in the Guantanamo commission.

As a result, Mohamed's lawyers sought an order from a British court compelling the British Foreign Secretary to disclose to Mohamed the evidence in its possession showing that Mohamed's confessions were extracted by torture. In August 2008, the British High Court ruled in Mohamed's favor, concluding in a 75-page ruling (http://www.judiciary.gov.uk/docs/judgments_guidance/mohamed_full210808.pdf) (.pdf) that there was credible evidence in Britain's possession that Mohamed was brutally tortured and was therefore entitled to disclosure of that evidence under long-standing principles of British common law, international law (as established by the Nuremberg Trials and the war crimes trials of Yugoslav leaders, among others), and by international treaties to which Britain (and the U.S.) are parties, including the Convention Against Torture. The U.S., in the wake of that ruling, then made many previously withheld documents available to Mohamed's lawyers.


As part of its ruling, the British High Court summarized the facts that British intelligence had learned from the CIA about the torture to which Mohamed was subjected. But at the request of the British Government, the Court redacted that summary so that the details of Mohamed's torture would remain concealed from the public.



Thereafter, the British High Court re-considered whether its summary of Mohamed's torture should be restored to the public record, so that the public would be aware of what was done to him. But in a ruling issued two weeks ago (http://www.judiciary.gov.uk/docs/judgments_guidance/mohamed-judgment4-04022009.pdf) (.pdf), the High Court decided to keep that paragraph redacted, based upon arguments made by the British Foreign Secretary that disclosure of those facts would harm Britain's national security.
Why and how would disclosure of the facts surrounding Mohamed's torture at the hands of the U.S. and allied governments possibly harm British national security? Here was the argument made by the Foreign Secretary, as summarized by the British High Court:

The United States Government's position is that, if the redacted paragraphs are made public, then the United States will re-evaluate its intelligence-sharing relationship with the United Kingdom with the real risk that it would reduce the intelligence it provided (para. 62) . . . . [and] there is a real risk, if we restored the redacted paragraphs, the United States Government, by its review of the shared intelligence arrangements, could inflict on the citizens of the United Kingdom a very considerable increase in the dangers they face at a time when a serious terrorist threat still pertains (para. 106).
In other words, the Bush administration threatened Britain that they would no longer give British authorities information about terrorist threats if Britian revealed to the world the details of Mohamed's torture. And this was a threat that the Obama administration clearly affirmed and even continued, as it actually thanked Britain for continuing to conceal (http://%27http//news.bbc.co.uk/2/hi/uk_news/politics/7870896.stm) this information and affirmed that Britain, as a result of its complicity in the concealment, could continue to receive intelligence from the U.S.:

In a statement, the White House said it "thanked the UK government for its continued commitment to protect sensitive national security information".


It added that this would "preserve the long-standing intelligence sharing relationship that enables both countries to protect their citizens".
That wasn't the only step the Obama administration has taken to keep concealed the treatment to which Mohamed was subjected. Mohamed is also one of the five plaintiffs suing Jeppesen, a Boeing subsidiary, for its role in his "renditions" -- the case where the Obama DOJ invoked the Bush theory of "state secrets" in order to demand that a federal court dismiss Mohamed's lawsuit before any facts could be revealed about what was done to him. As The Washington Independent's Daphne Evitar put it (http://washingtonindependent.com/29156/obama-administration-thanks-uk-for-concealing-evidence-of-us-sponsored-torture):

Call it what you will, the Obama administration is continuing the Bush administration’s policy of concealing evidence that the U.S. sponsored torture and other abuse, humiliation and mistreatment of detainees. That is, as the U.K. court aptly noted, evidence of war crimes.


It looks like the Obama administration is increasingly being boxed into a corner: either it keeps concealing evidence that crimes were committed, in violation of the President’s recent pledges for a newly transparent government, or it lets the evidence come out and confronts the fact that it’s going to have to authorize some sort of an investigation of what abuses took place under the Bush administration and who was responsible.
The extent to which the U.S. acted and continues to act as a rogue nation -- in every sense of that term -- is starkly revealed by the facts the High Court did disclose. British intelligence agents constantly complained internally about what they were witnessing when observing U.S. interrogations of detainees. Guidelines were promulgated specifically to direct British agents that they had the obligation to avoid any participation in acts of American torture. And this is what the British High Court said about demands from the U.S. that the British Court continue to conceal the evidence of America's torture of Mohamed (para. 67):
http://4.bp.blogspot.com/_MnYI3_FRbbQ/SZ11RRR7SNI/AAAAAAAABoQ/Jslpi1-p7_0/s400/mohamed-24.png (http://4.bp.blogspot.com/_MnYI3_FRbbQ/SZ11RRR7SNI/AAAAAAAABoQ/Jslpi1-p7_0/s1600-h/mohamed-24.png)
So, to recap: first, the U.S. abducted Mohamed and refused to provide him with any access to lawyers or the outside world. Then -- with no due process afforded -- we shipped him around for the next couple of years to various countries that are the most notorious practitioners of torture, where agents of those countries and the CIA jointly conducted interrogations by brutally torturing him. Then, once he was broken beyond the point of return, we shipped him off to Guantanamo.



After six years in detention, we finally charged him with crimes in a Guantanamo military commission -- based on confessions we extracted from him -- but refused to provide him with the exculpatory evidence showing that those confessions were extracted by torture, even though, as the High Court noted:


http://3.bp.blogspot.com/_MnYI3_FRbbQ/SZ2DlkDhJVI/AAAAAAAABpI/npAppiZVxVc/s400/mohamed-59a-tortureadm.png (http://3.bp.blogspot.com/_MnYI3_FRbbQ/SZ2DlkDhJVI/AAAAAAAABpI/npAppiZVxVc/s1600-h/mohamed-59a-tortureadm.png)
We then threatened Britain that they had better keep the facts surrounding the torture concealed from the world or else we would no longer notify them of terrorist threats aimed at them. And finally, when Mohamed sued in American courts over the rendition and torture he suffered, the U.S. Government -- first the Bush administration and then the Obama administration -- insisted that courts must not allow him a day in court because any discussion of what was done to him was a "state secret" and any disclosure at all would harm national security.



One of the principal arguments made even by well-intentioned anti-investigation advocates is that it would be wrong to prosecute Bush officials for torture because (a) DOJ lawyers authorized those tactics as legal and (b) Congress provided retroactive war crimes immunity when it enacted the 2006 Military Commissions Act. This argument -- that prosecution is unfair because the torturers' government authorized and legalized the torture -- is one that has been raised by most war criminals in the past, and emphatically rejected by the Nuremberg Trials (which the U.S. led) and the War Crimes Tribunal against Serbian leaders (which the U.S. praised and supported (http://tinyrevolution.com/mt/archives/002705.html)). To raise that argument in order to justify immunity for Bush officials is, by definition, to believe that the U.S. is exempt from the most basic rules of justice which it has long demanded be applied to other nations.

To illustrate how clear that is, just consider this passage from the ruling of the International Criminal Tribunal for the Former Yugoslavia (Prosecutor v. Furundjiza, 10 December, 1998), as quoted by the August, 2008 ruling of the British High Court (para. 172):
http://2.bp.blogspot.com/_MnYI3_FRbbQ/SZ17WzZn55I/AAAAAAAABog/ta1rV1YWcw0/s400/mohamed-2.png (http://2.bp.blogspot.com/_MnYI3_FRbbQ/SZ17WzZn55I/AAAAAAAABog/ta1rV1YWcw0/s1600-h/mohamed-2.png)
After listing all of the rights a torture victim has to commence judicial proceedings against the torturing country despite the fact that that country legalized the torture, the International Tribunal went on to point out:
http://1.bp.blogspot.com/_MnYI3_FRbbQ/SZ18I08OB1I/AAAAAAAABoo/ROUIsfXjMNU/s400/mohamed3.png (http://1.bp.blogspot.com/_MnYI3_FRbbQ/SZ18I08OB1I/AAAAAAAABoo/ROUIsfXjMNU/s1600-h/mohamed3.png) http://1.bp.blogspot.com/_MnYI3_FRbbQ/SZ18ZSHYCDI/AAAAAAAABow/EPVa6x9rUKM/s400/mohamed-4.png (http://1.bp.blogspot.com/_MnYI3_FRbbQ/SZ18ZSHYCDI/AAAAAAAABow/EPVa6x9rUKM/s1600-h/mohamed-4.png)
To see how clearly these principles apply to our current situation, consider that the war crimes of which Bush officials are accused are very similar to those for which Serbian leaders were convicted -- observed no less an authority than Judge Patricia Wald, former chief judge for the D.C. Court of Appeals and jurist on the International Criminal Tribunal for the Former Yugoslavia, writing in the October, 2008 report "Guantánamo and Its Aftermath" (http://tinyrevolution.com/mt/archives/002705.html) about documented abuse by the U.S.:
http://2.bp.blogspot.com/_MnYI3_FRbbQ/SZ2SxG7yhrI/AAAAAAAABpQ/DqLl7SlsgxU/s400/wald.png (http://2.bp.blogspot.com/_MnYI3_FRbbQ/SZ2SxG7yhrI/AAAAAAAABpQ/DqLl7SlsgxU/s1600-h/wald.png)
In fact, we've always maintained that torture and related violations of the Geneva Conventions are such grave offenses that perpetrators must be criminally prosecuted (1) even if they obtained domestic authorization to engage in those acts and/or (2) even if the torture was perpetrated by a nation that does not want to prosecute its own torturers. As the Tribunal noted:
http://3.bp.blogspot.com/_MnYI3_FRbbQ/SZ1_UzaAiUI/AAAAAAAABpA/n_06ZwttMxI/s400/mohamed5.png (http://3.bp.blogspot.com/_MnYI3_FRbbQ/SZ1_UzaAiUI/AAAAAAAABpA/n_06ZwttMxI/s1600-h/mohamed5.png) (http://3.bp.blogspot.com/_MnYI3_FRbbQ/SZ1_UzaAiUI/AAAAAAAABpA/n_06ZwttMxI/s1600-h/mohamed5.png)

[LnGrrrR]

I was wondering if someone was going to bring up that article. I don't see how anyone can look at that case and still argue that everyone in GTMO deserves what they got.

[Winehole23]

For a minute it made me wonder why Obama is fighting so hard to keep it secret.

Now I'm suitably convinced there's something in the evidence to be very ashamed of. We don't even know how bad this torture and indefinite detention thing is yet.

Should any President ever litigate the frauds and felonies of the previous administration to a certainty, one such occurrence would probably suffice to establish the custom forever. Recrimination would never end.

[Winehole23]

Binyam Mohamed to fly back from Guantánamo (http://www.timesonline.co.uk/tol/news/politics/article5776342.ece)

Richard Ford, Home Correspondent

A British resident held as a terrorist suspect at Guantánamo Bay for more than four years is to be flown to Britain next week. Binyam Mohamed could arrive as early as Monday after the US and British governments “reached agreement” on his transfer.

David Miliband, the Foreign Secretary, announced Mr Mohamed’s return yesterday and said that he would be in Britain “as soon as the practical arrangements can be made”.

Mr Mohamed, 30, has agreed to a number of conditions on his return, which include reporting regularly to the authorities. He is expected to be placed under surveillance but will not be subject to an anti-terror control order, which would severely restrict his movements and access to telephones and the internet.

Whitehall sources said that it would be impossible to use a control order because the courts would never accept evidence of his alleged terrorist links, which could have been obtained through torture. The Home Office refused to comment last night on whether Mr Mohamed would be flown to Britain on a commercial flight or a military aircraft.
Related Links




Miliband to make statement on 'torture' (http://www.timesonline.co.uk/tol/business/law/article5666484.ece)



Victim says he was cut with scalpel to confess (http://www.timesonline.co.uk/tol/news/uk/article5663666.ece)



Mr Mohamed has been held at the US military detention centre at Guantánamo Bay, in Cuba, since September 2004. He went on a hunger strike for more than a month at the start of this year and was described by his legal team as “close to starvation”.



The detainee, who lived in London before his arrest in Pakistan in 2002, alleges that he was tortured into falsely confessing to terrorist activities and claims that MI5 officers were complicit in his abuse. Mr Miliband said: “The UK and US governments have reached agreement on the transfer of Binyam Mohamed from Guantánamo Bay to the UK. This follows recent discussions between the British and US governments and a medical assessment, undertaken by a UK doctor, that Mr Mohamed is medically fit to return.”



He will be met by immigration officials on his arrival. Mr Miliband added: “His immigration status will be reviewed following his return and the same security considerations will apply to him as would apply to any other foreign national in this country.”



Mr Mohamed claims that after being detained in Pakistan he was flown secretly to Morocco and tortured before being moved to Afghanistan and then to Guantánamo Bay. The US accused him of involvement in a radioactive “dirty bomb” plot but all terror charges against him were dropped last year.



The Attorney-General is consulting the Director of Public Prosecutions over whether to order a criminal investigation into claims that intelligence and security agents were involved in torturing him.



The torture allegations are at the centre of a continuing legal row after two High Court judges complained that they were blocked by Mr Miliband from making public information relating to Mr Mohamed’s case for national security reasons.



Edward Davey, the Liberal Democrat foreign affairs spokesman, said that Mr Mohamed’s release was “long overdue”. He said: “With Mr Mohamed back in the UK, the Government will have to come clean over any British role in his alleged torture.”

[Winehole23]

The British file on Mohammed that reached Obama was redacted to protect him from information about the conditions of Mr Mohammed's detention. On the grounds that disclosing it, even (or perhaps, especially...) to the President, could harm the security of the US. Wow.

The Presidents handlers make sure he does not come too closely in contact with messy little details like the physical circumstances of Mr.Mohammed's confession. Obama might become legally or professionally responsible for the disclosed in some way.

If something really happened, maybe innocence really is good legal cover for Obama. Maybe keeping the President in the dark is estimated wise and prudent. Obama himself must be protected from the incipient investigation of Bush's irregular detentions. He is the current defender in chief of the Executive Branch and his own Office.