Archive for April, 2009
We have a densely argued discussion of the available evidence andliterature review in footnote number 30 of our open letter:
(Why does the link for footnote 30 ends in “note-29”. I think I blame computer scientists who like to begin counting at 0 rather than 1.)
(If you go there, all the references are hyperlinked, they are not here)
See Opinion Research Business and Just Foreign Policy for these estimates. This far exceeds the Iraq Body Count number of around 90,000, which only counts deaths reported by multiple crosschecked media reports: see their information page. The US government has not made any serious study of deaths in Iraq during the war and occupation. Perhaps the closest is Measuring Stability and Security in Iraq, Report to Congress by Department of Defense, September 2008, at p.22. However, as noted in the December 2007 version of this report, there are many deaths for which “the Coalition does not have visibility, in particular, murders and deaths in locations where Coalition forces are not present”: at p.18. See the Congressional Research Service report Iraqi Civilian Casualties Estimates, Hannah Fischer, January 12, 2009, for some further discussion. The Just Foreign Policy figure is an extrapolation of an epidemiological-style cluster study study published in the prestigious British medial journal The Lancet, which obtained a figure of 426,000-794,000 for the period March 2003 – July 2006: Gilbert Burnham, Riyadh Lafta, Shannon Doocy et al., “Mortality After the 2003 Invasion of Iraq: A Cross-Sectional Cluster Sample Survey,” The Lancet, October 21, 2006, 368 (9545), pp. 1421-1429. The UK Ministry of Defence’s chief scientific advisor called the survey “close to best practice” and “robust”: High Death Toll Backed, Newsday, March 27, 2007.
The Just Foreign Policy website estimate is currently 1,320,110… it’s a rough estimate based on extrapolation from the Lancet study.
This is reference material. I have gone through the two reports
“OLC Opinions on the CIA Detention and Interrogation Program” , the timeline released by the Senate Intelligence Committee on April 22,
“Inquiry into the Treatment of Detainees in U.S. Custody”, the Report of the Senate Armed Services Committee
and copied the significant references to campus faculty. Some of the text may be a little strange: lifted from PDF by character recognition.
Enjoy. Or not. Much of the substance regarding Rice has been reported, e.g.
“Rice gave early approval for CIA waterboarding, Senate report reveals”
but primary source material is very powerful.
References to Rice and NSC Principals Committee in
OLC OPINIONS ON THE CIA DETENTION AND INTERROGATION PROGRAM
RELEASE OF DECLASSIFIED NARRATIVE DESCRIBING
THE DEPARTMENT OF JUSTICE OFFICE OF LEGAL COUNSEL’S OPINIONS ON
THE CIA’S DETENTION AND INTERROGATION PROGRAM
April 22, 2009
The capture of Abu Zubaydah and the initiation of the CIA detention and interrogation program
In late March 2002, senior Al-Qa’ida operative Abu Zubaydah was captured. Abu Zubaydah was badly injured during the firefight that brought him into custody. The CIA arranged for his medical care, and, in conjunction with two FBI agents, began interrogating him. At that time, the CIA assessed that Abu Zubaydah had specific information concerning future Al-Qa’ida attacks against the United States.
CIA records indicate that members of the National Security Council (NSC) and other senior Administration officials were briefed on the CIA’s detention and interrogation program throughout the course of the program.1 In April 2002, attorneys from the CIA’s Office of General Counsel began discussions with the Legal Adviser to the National Security Council and OLC concerning the CIA’s proposed interrogation plan for Abu Zubaydah and legal restrictions on that interrogation. CIA records indicate that the Legal Adviser to the National Security Council briefed the National Security Adviser, Deputy National Security Adviser, and Counsel to the President, as well as the Attorney General and the head of the Criminal Division of the Department of Justice.
According to CIA records, because the CIA believed that Abu Zubaydah was withholding imminent threat information during the initial interrogation sessions, attorneys from the CIA’s Office of General Counsel met with the Attorney General, the National Security Adviser, the Deputy National Security Adviser, the Legal Adviser to the National Security Council, and the Counsel to the President in mid-May 2002 to discuss the possible use of alternative interrogation methods that differed from the traditional methods used by the U.S. military and intelligence community. At this meeting, the CIA proposed particular alternative interrogation methods, including waterboarding.
The CIA’s Office of General Counsel subsequently asked OLC to prepare an opinion about the legality of its proposed techniques. To enable OLC to review the legality of the techniques, the CIA provided OLC with written and oral descriptions of the proposed techniques. The CIA also provided OLC with information about any medical and psychological effects of DoD’s Survival, Evasion, Resistance and Escape (SERE) School, which is a military training program during which military personnel receive counter-interrogation training.
On July 13, 2002, according to CIA records, attorneys from the CIA’s Office of General Counsel met with the Legal Adviser to the National Security Council, a Deputy Assistant Attorney General from OLC, the head of the Criminal Division of the Department of Justice, the chief of staff to the Director of the Federal Bureau of Investigation, and the Counsel to the President to provide an overview of the proposed interrogation plan for Abu Zubaydah.
On July 17, 2002, according to CIA records, the Director of Central Intelligence (DCI) met with the National Security Adviser, who advised that the CIA could proceed with its proposed interrogation of Abu Zubaydah. This advice, which authorized CIA to proceed as a policy matter, was subject to a determination of legality by OLC.
On July 24, 2002, according to CIA records, OLC orally advised the CIA that the Attorney General had concluded that certain proposed interrogation techniques were lawful and, on July 26, that the use of waterboarding was lawful. OLC issued two written opinions and a letter memorializing those conclusions on August 1, 2002.
Events after issuance of August 1, 2002 OLC opinion
According to CIA records, after receiving the legal approval of the Department of Justice and approval from the National Security Adviser, the CIA went forward with the interrogation of Abu Zubaydah and with the interrogation of other high-value Al-Qa’ida detainees who were then in, or later came into, U.S. custody. Waterboarding was used on three detainees: Abu Zubaydah, Abd al-Rahim al-Nashiri, and Khalid Sheikh Muhammad. The application of waterboarding to these detainees occurred during the 2002 and 2003 timeframe.
In the spring of 2003, the DCI asked for a reaffirmation of the policies and practices in the interrogation program. In July 2003, according to CIA records, the NSC Principals met to discuss the interrogation techniques employed in the CIA program. According to CIA records, the DCI and the CIA’s General Counsel attended a meeting with the Vice President, the National Security Adviser, the Attorney General, the Acting Assistant Attorney General for the Office of Legal Counsel, a Deputy Assistant Attorney General, the Counsel to the President, and the Legal Adviser to the National Security Council to describe the CIA’s interrogation techniques, including waterboarding. According to CIA records, at the conclusion of that meeting, the Principals reaffirmed that the CIA program was lawful and reflected administration policy.
According to CIA records, pursuant to a request from the National Security Adviser, the Director of Central Intelligence subsequently briefed the Secretary of State and the Secretary of Defense on the CIA’s interrogation techniques on September 16, 2003.
References to Rice and NSC Principals Committee
Inquiry into the Treatment of Detainees in U.S. Custody
Report of the
Committee on Armed Services
United States Senate
November 20, 2008
Released 23 April, 2009
(U) Mr. Haynes was not the only senior official considering new interrogation techniques for use against detainees. Members ofthe President’s Cabinet and other senior officials attended meetings in the White House where specific interrogation techniques were discussed. Secretary of State Condoleezza Rice, who was then the National Security Advisor, said that, “in the spring of 2002, CIA sought policy approval from the National Security Council (NSC) to begin an interrogation program for high-level al-Qaida terrorists.” Secretary Rice said that she asked Director of Central Intelligence George Tenet to brief NSC Principals on the program and asked the Attorney General John Ashcroft “personally to review and confirm the legal advice prepared
by the Office of Legal Counsel.” She also said that Secretary of Defense Donald Rumsfeld participated in the NSC review ofthe CIA’s program.
(U) Asked whether she attended meetings where SERE training was discussed, Secretary Rice stated that she recalled being told that U.S. military personnel were subjected in training to
“certain physical and psychological interrogation techniques.” National Security Council (NSC) Legal Advisor, John Bellinger, said that he was present in meetings “at which SERE training was discussed.”
(U) NSC Legal Advisor John Bellinger said that, on several occasions, Deputy Assistant
Attorney General Bruce Swartz raised concerns with him about allegations of detainee abuse at
GTMO. Mr. Bellinger said that, in tum, he raised these concerns “on several occasions with DoD officials and was told that the allegations were being investigated by the Naval Criminal Investigative Service.” Then-National Security Advisor Condoleezza Rice said that Mr. Bellinger also advised her “on a regular basis regarding concerns and issues relating to DoD detention policies and practices at Guantanamo.” She said that as a result she convened a “series of meetings of NSC Principals in 2002 and 2003 to discuss various issues and concerns relating to detainees in the custody ofthe Department of Defense.”
(U) Between mid-December 2002 and mid-January 2003, Navy General Counsel Alberto Mora spoke with the DoD General Counsel three times to express his concerns about interrogation techniques at GTMO, at one point telling Mr. Haynes that he thought techniques that had been authorized by the Secretary of Defense “could rise to the level of torture.” On January 15, 2003, having received no word that the Secretary’s authority would be withdrawn, Mr. Mora went so far as to deliver a draft memo to Mr. Haynes’s office memorializing his legal concerns about the techniques. In a subsequent phone call, Mr. Mora told Mr. Haynes he would sign his memo later that day unless he heard definitively that the use of the techniques was suspended. In a meeting that same day, Mr. Haynes told Mr. Mora that the Secretary would rescind the techniques. Secretary Rumsfeld signed a memo rescinding authority for the techniques on January 15, 2003.
(U) That same day, GTMO suspended its use of aggressive techniques on Khatani. While key documents relating to the interrogation remain classified, published accounts indicate that military working dogs had been used against Khatani. He had also been deprived of adequate sleep for weeks on end, stripped naked, subjected to loud music, and made to wear a leash and perform dog tricks. In a June 3, 2004 press briefing, SOUTHCOM Commander General James Hill traced the source oftechniques used on Khatani back to SERE, stating: “The staff at Guantanamo working with behavioral scientists, having gone up to our SERE school and developed a list of techniques which our lawyers decided and looked at, said were OK.” General
Hill said “we began to use a few ofthose techniques … on this individual.”
(U) On May 13, 2008, the Pentagon announced in a written statement that the Convening Authority for military commissions “dismissed without prejudice the sworn charges against Mohamed al Khatani.” The statement does not indicate the role his treatment may have played in that decision.
Conclusion 2: Members of the President’s Cabinet and other senior officials participated in meetings inside the White House in 2002 and 2003 where specific interrogation techniques were discussed. National Security Council Principals reviewed the CIA’s interrogation program during that period.
II. Development of New Interrogation Authorities (U)
A. CIA’s Interrogation Program and the Interrogation of Abu Zubaydah (U)
(U) Abu Zubaydah was captured by Pakistani and CIA forces on March 28, 2002. According to former CIA Director George Tenet, once Zubaydah was in custody, the CIA “got into holding and interrogating high-value detainees” (HVDs) “in a serious way.”uo Then National Security Advisor Condoleezza Rice said that “in the spring of 2002, CIA sought policy approval from the National Security Council to begin an interrogationprogram for high-level al-Qaida terrorists.”lll Then-NSC Legal Advisor John Bellinger said that he asked CIA to have the proposed program reviewed by the Department of Justice and that he asked CIA to seek advice not only ~om DoJ’s Office of Legal Counsel (OLC) but also from the Criminal Division. 112 Ms. Rice said that she asked Director of Central Intelligence George Tenet to brief NSC Principals on the proposed CIA program and asked Attorney General Ashcroft “personally to review the legality of the proposed program. ll3 She said that all ofthe meetings she attended on the CIA’s interrogation program took place at the White House and that she understood that DoJ’s legal advice “was being coordinated by Counsel to the President Alberto Gonzales.,,114
(U) According to President Bush, the agency developed an “alternative set” of ,”tough” interrogation techniques, and put them to use on Zubaydah and other HVDs. 115 Though virtually all of the techniques that were used on Zubaydah remain classified, CIA Director Michael Hayden confirmed that waterboarding was used on Zubaydah. 116 Assistant Attorney General for the Office of Legal Counsel (OLC) Steven Bradbury testified before Congress that the “CIA’s use ofthe waterboarding procedure was adapted from the SERE training program.,,117 When asked whether she was present for discussions about physical and/or psychological pressures used in SERE training, Secretary Rice recalled “being told that U. S. military personnel were subjected in training to certain physical and psychological interrogation techniques.” 118 Mr. Bellinger, the NSC Legal Advisor, stated that he was “present in meetings at which SERE training was discussed.,,119
(U) Public reports have identified a retired U.S. Air Force SERE psychologist, Dr. James Mitchell, as having participated in the CIA’s interrogation of Zubaydah. 120 Dr. Mitchell, who retired from the Air Force in 2001, agreed to speak to the Committee about his time at DoD.
(U) An unclassified version of a May 2008 report by the Department of Justice (DoJ) Inspector General (IG) confirmed that FBI agents “initially took the lead in interviewing Zubaydah at the CIA facility,” but that “CIA personnel assumed control over the interviews” when they arrived at the facility. 125
(U) The FBI Special Agent told the DoJ Inspector General that he also “raised objections to these techniques to the CIA and told the CIA it was ‘borderline torture. “,130 According to the unclassified DoJ Inspector General’s report, a second FBI agent present did not have a “‘moral objection'” to the techniques and noted that he had “undergone comparable harsh interrogation techniques as part of the U.S. Army Survival, Evasion, Resistance and Escape (SERE) training.,,131
(U) According to the DoJ Inspector General’s report, FBI Counterterrorism Assistant Director Pat D’ Amuro gave the instruction to both FBI agents to “come home and not participate in the CIA interrogation.” The first FBI Special Agent left immediately, but the other FBI agent remained until early June 2002. 133 The report said that around the time of Zubaydah’s interrogation, FBI Director Robert Mueller decided that FBI agents would not participate in interrogations involving techniques the FBI did not normally use in the United States, even though the OLC had determined such techniques were legal. 134 Then-National Security Advisor Condoleezza Rice said that she had a “general recollection that FBI had decided not to participate in the CIA interrogations” but “was not aware that FBI personnel objected to
interrogation techniques used or proposed for use with Abu Zubaydah.” 135
E. The Department ofJustice Changes the Rules (U)
(U) On August 1,2002, less than a week after JPRA sent the DoD General Counsel’s Office its memoranda and attachments, the Department of Justice issued two legal opinions signed by then-Assistant Attorney General for the Office of Legal Counsel (OLC) Jay Bybee.
(U) Before drafting the August 1,2002 opinions, Deputy Assistant Attorney General for the OLC John Y 00 had met with Counsel to the President Alberto Gonzales and Counsel to the Vice-President David Addington to discuss the subjects that he intended to address. 224 Then National Security Advisor Condoleezza Rice said that she understood that the Department of Justice’s legal advice to the CIA “was being coordinated by Counsel to the President Alberto Gonzales.,,225
(U) The first ofthe two August 1,2002 OLC memoranda, known to many as the “First Bybee” memo, presented OLC’s narrow interpretation of what constituted torture under U.S. law. The memo stated that the federal anti-torture statute of 1994 prohibited “only extreme acts” and that in order to constitute torture, physical pain would have to be equivalent in intensity to that accompanying “serious physical injury, such as organ failure, impairment of bodily functions or even death.,,226 For mental pain to rise to the level of torture, according to the memo, it would have to result in “si~flcant psychological harm of significant duration, e.g., lasting for months or even years.,,22 The First Bybee memo also found that the federal antitorture statute may not be applicable to interrogations ordered by the President if he acted pursuant to his Constitutional commander-in-chief powers. Further, the memo argued that even if the federal anti-torture statute could be construed to apply to such interrogations, the defenses of necessity and self-defense could potentially eliminate criminal liability under the statute. 228
(U) The First Bybee memo also effectively dispensed with the “specific intent” requirement of the federal anti-torture statute by narrowly defining that requirement. The federal anti-torture statute states that, in order to constitute torture, an act must be “specifically intended to inflict severe physical or mental pain or suffering.,,229 The First Bybee memo stated that in order “for a defendant to have acted with specific intent, he must expressly intend to achieve the forbidden act.,,230 Under that interpretation, to violate the law, a person must expressly intend to commit torture and the memo stated that “knowledge alone that a particular result is certain to occur does not constitute specific intent.”
(U) Jack Goldsmith, who succeeded Jay Bybee as Assistant Attorney General of the OLC
in 2003, described the First Bybee memo’s conclusions and their effect:
[V]iolent acts aren’t necessarily torture; if you do torture, you probably have a
defense; and even if you don’t have a defense, the torture law doesn’t apply if you
act under color of presidential authority. CIA interrogators and their supervisors,
under pressure to get information about the next attack, viewed the opinion as a
‘golden shield,’ as one CIA official later called it, that provided enormous
(U) The second August 1,2002 OLC legal opinion was also signed by Assistant Attorney General Jay Bybee. 232 According to a declaration made to the United States District Court for
the Southern District ofNew York. by the Information Review Officer for the CIA, the so-called “Second Bybee” memo is an I8-page legal memorandum from the OLC to the Office of General
Counsel of the CIA containing “information relating to the CIA’s terrorist detention and interrogation program” and “advice to’ the CIA regarding potential interrogation methods.” 233 According to the filing, the CIA requested the legal guidance from the Department of Justice. 234 A February 1, 2005 letter from the Justice Department to Senator Arlen Specter, then-Chairman of the Senate Judiciary Committee, stated that the Second Bybee memo gave the CIA “specific advice concerning specific interrogation practices, concluding that they are lawful.” 235 And the unclassified report of the Department of Justice Inspector General explained that the opinion analyzed “specific techniques approved for use on Zubaydah includ[ing] waterboarding … ,,236
John Bellinger, the NSC Legal Adviser, said that he “expressed concern that the proposed CIA interrogation techniques comply with applicable u.s. law, including our international obligations. 238
(U) The Committee has been denied the Second Bybee memo and does not know which specific interrogation practices, other than waterboarding, were analyzed in the memo. A heavily redacted version ofthe Second Bybee memo, released on July 24, 2008, provides no further details about the specific interrogation practices that were analyzed by the OLC. 239 The unredacted sections only make clear that the OLC applied its analysis in the First Bybee memo to a set of (redacted) facts at issue in the Second Bybee memo.240 And while public sources have suggested that the OLC’s analysis applied to Zubaydah, then-Deputy Assistant Attorney General John Yoo suggested in recent testimony that it “perhaps” applied to others “similarly situated.,,241
(U) According to Acting CIA General Counsel John Rizzo, the techniques that the OLC analyzed in the Second Bybee memo were provided by his office. In his testimony before the Senate Select Committee on Intelligence, Mr. Rizzo stated that his office was “the vehicle” for getting the interrogation practices analyzed in the Second Bybee memo to the Department of
[redacted] Lt Col Baumgartner, the JPRA Chief of Staff, recalled sending a copy of the same information that he had sent to the DoD General Counsel – including the list of SERE techniques and Dr. Ogrisseg’s memo on the pS1.;chological effects of Air Force SERE training and on waterboarding — to [redacted] attorney. 43 Mr. Haynes, the DoD General Counsel, recalled that in the context of reviewing the list of SERE techniques provided to his office, that he may have been “asked that information be given to the Justice Department for something they were working on.,,244
(U) With respect to the issues addressed in Dr. Ogrisseg’s memo relating to the psychological effects of resistance training, Mr. Haynes said that he knew that there was a government interest in that subject, but that he did not know if that information was used as support in any OLC legal analysis, and ifhe did know, he did not recall. 245
(U) Then-NSC Legal Advisor John Bellinger said that some of the legal analysis of proposed interrogation techniques prepared by the DeEartment of Justice referred to ”the psychological effects of military resistance training.” 46 In fact, Jay Bybee, the Assistant Attorney General who signed the two August 1,2002 opinions, said that he saw an assessment of the psychological effects of military resistance training in July 2002 in meetings in his office with John Y 00 and two other OLC attorneys. Judge Bybee said the assessment – which to the best of his recollection had been provided by the CIA – informed the August 1, 2002 OLC legal opinion that has not been released publicly.247 In his June 26, 2008 testimony before the House Judiciary Committee, John Y00 refused to say whether or not he ever discussed or received information about SERE techniques as the August 1, 2002 memos were being drafted. 248
(U) While Judge Bybee said that he did not recall “any written advice provided to any governmental agency prior to August 1, 2002, on the meaning of the standards of conduct required for interrogation under the federal anti-torture statute or on specific interrogation methods,” the August 1,2002 memos were not the only occasion on which DOJ provided legal
advice on the CIA’s interrogation program. 249 John Bellinger, the NSC Legal Advisor, said that
he understood that in 2002 and 2003, the OLC provided “ongoing advice to CIA regarding CIA’s
interrogation program.,,250 And then-National Security Advisor Condoleezza Rice said that she
was present at “several” meetings in the White House at which Mr. Yoo provided legal advice. 251 Ms. Rice said that she asked Attorney General John Ashcroft “personally to review and confIrm” DoJ’s legal guidance. 252
E. National Security Council (NSC) Principals Discuss DoD Interrogations
(U) In a June 9, 2008 letter to the DoJ Inspector General, John Bellinger the former NSC Legal Advisor, stated that he “repeatedly asked the Defense Department about conditions and
detention policies at Guantanamo Bay” and that he “specifically raised concerns about interrogations practices used at Guantanamo, including concerns raised by the Department of
(U) Mr. Bellinger told the Committee that Deputy Assistant Attorney General Bruce Swartz raised concerns with him “about allegations of abuse of detainees at Guantanamo.,,852 Mr. Bellinger said that Mr. Swartz called him on “several occasions” to express his concerns and that, in response, he “raised these concerns on several occasions with DoD officials and was told that the allegations were being investigated by the Naval Criminal Investigative Service.,,853 He said that then-National Security Advisor Condoleezza Rice “convened a series of meeting of NSC Principals in order to ensure that concerns about conditions and other issues relating to Guantanamo were fully discussed with the Department of Defense and other agencies.,,854
(U) Secretary Rice confirmed Mr. Bellinger’s account, stating that he advised her “on a regular basis” regarding concerns and issues relating to Department of Defense detention policies and practices at Guantanamo. 855 She said that, as a result she “convened a series of meetings of NSC Principals in 2002 and 2003 to discuss various issues and concerns relating to detainees in the custody of the Department ofDefense.,,856
These are my prepared remarks, what I said was some approximation to these.
Hi, I’m Dan. I’m a grad student here in the mathematics department. Thanks for coming.
We are here today because we’re concerned.
We’re here today to make a peaceful and nonviolent statement that we are deeply concerned about what’s going on at this university, and more broadly what’s going on in this country and the world.
I would ask everybody here to treat everybody else, including people who disagree with us, with the respect they are entitled to.
But our concern today is not any ordinary concern. It’s a concern that goes to the heart of what it means to live in a humane society.
Some things are so morally abhorrent that no society can condone them and call itself civilized.
Some actions amount to crimes. But some actions go beyond mere crimes.
Such as torture. Such as the waging of aggressive war.
Some actions so shock the conscience, they so strike at the heart of what it means to be human, that we consider them crimes not just against the victim, not just against the law, but against every human being. Torture, war, they ruin the human soul, they break lives, they lessen us all.
And I think what brings us here today is our concern that there is substantial evidence – growing by the day, with every newly released report and memo – that a tenured faculty member here at Stanford has been:
firstly, a principal participant in the planning and propaganda efforts of an aggressive war waged in supreme violation of international law;
and secondly, an explicit authorizer of brutalities which have long been widely understood as torture.
War and torture. Hundreds of thousands, millions of ruined lives. A tenured faculty member. That is the situation which confronts us here today.
* * *
Let me tell you what this is not about.
This is not personal. Maybe, if you live here at Roble, you might take this personally. But I have nothing personal against anybody, here at Stanford, or anywhere; and I hope that you don’t either. We are not attacking anyone on a personal basis, but we do want to see accountability where there is evidence of involvement in extremely serious crimes.
Second, this is not about beliefs; this is about actions. If there’s a faculty member who makes a statement I disagree with, well, we can respectfully and politely disagree. If there’s a faculty member who makes a statement that is shocking and offensive – we might respectfully but not politely disagree. Maybe we might even be moved to protest. Freedom of speech protects unpopular views, as it protects protest; academic freedom protects intellectual inquiry.
But here, today, we are in a different category. We have a professor who did not merely advocate for brutalities like waterboarding – but authorised them. A professor who did not merely cheerlead for war, but was involved in official planning and propaganda efforts of that war, at the highest levels. These are not things to respectfully disagree about. These are not experiences to learn from. These are crimes to be prosecuted.
What do we do, if the authorities are not prosecuting — whether in US courts, overseas, or internationally?
What does it say about us, about our campus, if we let this pass?
What does it say about us, about our campus, if we ignore the evidence of these monstrous crimes and have a dinner party instead?
* * *
Let’s just briefly review some of the evidence.
You probably all know that our professor was National Security Adviser and chair of the National Security Council’s Principals Committee. We now know that this committee authorised specific instances of waterboarding – and the discussions there were so detailed they were “almost choreographed”. Moreover, our professor was not a passive participant; according to the report, she was “decisive”. She told the CIA: “This is your baby. Go do it.”
Now, in the last week, a declassified narrative from the Senate Intelligence Committee reveals that our professor became on July 17, 2002, so far as we know, the first high-ranking US official explicitly to authorize the brutal drowning technique known as waterboarding.
Now, torture is a crime under international law, under US law, there’s an international treaty about it. It’s very clear. There’s no defence of protecting national security. There’s no defence of intelligence chatter. Read the convention. Article 2 says that “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture”. There are some things that, if you are minimally civilized, if you respect minimal human rights, you just don’t do. The evidence suggests that it also doesn’t work very well, but that’s not the point; it’s just wrong, and it’s a crime.
However, there are these “torture memos”. More of these have come out last week. Our professor assures us that everything she authorized was legal, and these memos provide the legal argument. Well, just go and read these memos and see what you think about the reasoning. Don’t be afraid of legalese, this stuff speaks for itself.
Take the memo of August 1, 2002, which was released last week. August 2002, just after our professor authorised waterboarding. The conclusion: waterboarding, and all other desired techniques, not torture.
So, how is waterboarding not torture? Well, there might be a bunch of legal precedents that it is, going right back to the Spanish-American war, 1898, but somehow the lawyers didn’t find them.
Anyway, the reasoning is pretty good. The statute says that to be torture, waterboarding must “inflict severe physical or mental pain or suffering”. But you see, waterboarding only – only! — involves the panic of imminent death from drowning! That’s not actual physical pain, you see. Okay, but what about actual physical suffering? The physiological response of drowning seems like physical suffering to me! But no, you see, we are informed, that’s not how it works. The phrase “pain and suffering” in the defintion of torture must be understood as a single concept, not “pain”, not “suffering”, but “pain-and-suffering”. So, there’s no pain, might be suffering, but there’s no “pain-and-suffering”. Get it?
And so it goes on.
The requirement in the War Crimes act is for “specific intent”. So, says the memo, you have to actually explicitly specifically intend to inflict severe pain or suffering! If you intend anything else, it can’t be torture! You just have to believe in good faith of something other than that you are inflicting severe pain or suffering. Your belief doesn’t even have to be reasonable. And — and this is a key point — your good faith belief that you didn’t actually specifically intend to inflict severe pain or suffering can be established by reliance on experts. Like legal advice. Like this very memo.
And this is the way to regard these memos. They were regarded as a “Golden Shield”. They were written to get torturers out of jail. And producing fallacious legal arguments, reinterpreting the law to justify conduct that was previously clearly torture, has another name: aiding and abetting torture.
And there’s plenty more. Go and read it, I’m just scratching the surface. Especially read the bit about putting someone in a box with insects.
So every time our illustrious professor talks about how everything was assuredly legal, that is the reasoning it’s based on. It’s ridiculous, it’s unbelievably bad, it has been rescinded as an embarrassment, and it is aiding and abetting torture
And, our professor can’t claim any ignorance about this. We know from the recently released report of the Senate Armed Services Committee, that through 2002-2003, she was present at several meetings in the White House at which Mr. Yoo, her Berkeley colleague, provided legal advice. So she has heard it. She knows how bad it is. And yet, the evidence is that she was decisive regardless.
* * *
Torture is one thing, and it’s terrible. But I’m sorry, my friends, there are worse things in the world than torture. A full-scale war is much, much worse.
War is generally illegal, has been illegal since 1928. It can only be justified, legally, in two circumstances: as self-defence from imminent attack, or with authorisation from the UN Security Council under Chapter VII of the UN Charter. That doesn’t necessarily make it moral, or good, but makes it legal. That’s international law. Very simple. And neither condition was satisfied in the case of Iraq. So it’s illegal. It’s aggressive war.
And the waging of aggressive war is not just a crime. It’s a crime against the world, a crime against humanity, the same crime for which the Nazis were tried at Nuremberg. Countries don’t invade other countries in the 21st century. That belongs to a world long past, that belongs in past ages of barbarism.
So the invasion of Iraq is not to be regarded as a mistake, or a blunder, but, to quote the Nuremberg tribunal, it is “the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” That is the position at international law, reaffirmed ever since.
Well, what is the role of our illustrious professor?
She was one of the “five Administration officials most responsible for providing public information and shaping public opinion on Iraq”, and central to policy formulation and execution. Here I’m quoting a Congressional Committee and leading reports. She was among the topofficials promoting, planning, and eventually perpetrating the war.
Smoking guns and mushroom clouds. That’s our professor.
The Center for Public Integrity has calculated that, overall, the Bush administration made 935 public false statements about the national security threat posed by Iraq. Of those 935, our illustrious professor made 56 false statements.
Aggressive war, and a breathtaking tragedy. Hundreds of thousands have died as a result of the war – by some estimates, well over a million. Over 4 million refugees. Lives broken across an entire region of the planet. A humanitarian catastrophe, and still ongoing.
That’s our professor, who’s having dinner parties in dormitories.
* * *
In the end, for us here at Stanford, I think it comes down to asking –
What sort of a world do you want to live in? and
What sort of a campus do you want to study in?
The horrors are not over. Violence in Iraq continues. War in Afghanistan escalates. Bombings in Pakistan escalate. Foreign policy goes on with the new President, as it has gone on for a long time, and it is not pretty. Before Iraq and Afghanistan there were interventions, just to name a few – in Panama, El Salvador, Nicaragua, Libya, Grenada, Angola, Guatemala, Iran; the list goes on, and it’s bipartisan.
There is plenty to push the President on. And on the question of prosecuting torture, he is possibly wavering, he’s been hedging.
He needs some backbone. But we can help to give him some backbone. Imagine what a message a strong stand by Stanford students on campus could send.
Because for us, this is not an abstract question. For us, this question has come home – today, it has come home for dinner.
I think it’s important to realise that, in calling for prosecutions, we are not looking for retribution. The most important thing is to make sure that the horrible episodes we have seen – war, torture, aggression, violations of international law – do not happen again. How do you ensure they do not happen again? By letting anybody who is thinking of doing it again know that if they do it again, they will be prosecuted. And how do you ensure that? By prosecuting those who did it this time. The best way to put the past behind us is for people to face accountability now.
It’s also the law – article 12 of the Convention Against Torture requires investigations, whenever there is reasonable ground to believe torture has been committed.
But we have to ask ourselves some questions:
How can we change a culture where such a professor considers herself able to invite herself over to dinner, where dozens will sign up adoringly?
Somehow we have to grow up. We have to realise that not every adult around here, not every authority figure, is someone to look up to.
Somehow we have to get people to think about their place in the world, their place at this university, and the place of this university in the world. Considering the role of this university in the power structures of society, what do we want it to be? And how can we make it so?
So I invite you to join with us, work with the coalition that is coming together to work on this issue, to work for justice, for accountability, and for peace.
After all, we all live here. It is the responsibility of all of us.
I think this is amazingly good — at least to my own aesthetics. Just the right mix of seriousness and hilariousness, gravity and spirit, light and heavy, yin and yang.
This is your pizza. Go eat it.
Are you allergic to illegal wars? Do you think torture sucks? Can’t stomach a dinner with Rice? Well then, come to our
Dinner for Human Rights and International Law
Condoleezza Rice will be having a dinner with students at Roble at the same day & time. This event is meant to peacefully show to the campus that the Stanford community will not ignore evidence that Condoleezza Rice violated international and domestic laws against aggressive war and torture, and that we must confront our own institutional role in enabling and even honoring this behavior. We want accountability!
Why are we having dinner parties with an authorizer of waterboarding in Roble Hall? History will not judge this kindly.
An awesome video by a friend.
“Condoleezza Rice is back at Stanford University. What does it mean for the Stanford community to accept an alleged war criminal on their campus? What does the pipeline of war criminals to universities mean for students everywhere? Please read about Rice’s alleged crimes during the past 8 years: http://www.stanford.edu/group/antiwar/cgi-bin/mediawiki/index.php?title=Condi_coalition_letter_draft and support the movement on Stanford’s campus to hold Rice and former Bush administration officials accountable…”
In Adopting Harsh Tactics, No Inquiry Into Their Past Use
Report Gives New Detail on Approval of Brutal Techniques
Obama Won’t Bar Inquiry, or Penalty, on Interrogations
From one of the memos:
In addition to using the confinement boxes alone, you also would like to introduce an insect into one of the boxes with Zubaydah. As we understand it, you plan to inform Zubaydah that you are going to place a stinging insect into the box, but you will actually place a harmless insect in the box, such as a caterpillar. If you do so, to ensure that you are outside the predicate act requirement, you must inform him that the insects will not have a sting that would produce death or severe pain. If, however, you were to place the insect in the box without informing him that you are doing so, then, in order to not commit a predicate act, you should not affirmatively lead him to believe that any insect is present which has a sting that could produce severe pain or suffering or even cause his death. [Redacted section] so long as you take either of the approaches we have described, the insect’s placement in the box would not constitute a threat of severe physical pain or suffering to a reasonable person in his position. An individual placed in a box, even an individual with a fear of insects, would not reasonably feel threatened with severe physical pain or suffering if a caterpillar was placed in the box.
Some excerpts from the memos:
The actual memos:
Many further links, quotes, and comments follow, for those who are interested.
1. Choreographing torture
Note in these excerpts how the choreography of interrogations is considered: which techniques can be combined with others, how often they can be done, and so on.
As the NY Times Editorial “The Torturers’ Manifesto” points out
(the editorial is good but, as Brian notes, far too late in coming):
To read the four newly released memos… is to take a journey into depravity.
Their language is the precise bureaucratese favored by dungeon masters throughout history. They detail how to fashion a collar for slamming a prisoner against a wall, exactly how many days he can be kept without sleep (11), and what, specifically, he should be told before being locked in a box with an insect — all to stop just short of having a jury decide that these acts violate the laws against torture and abusive treatment of prisoners.
Recall the April 2008 ABC News report that disclosed Condoleezza Rice’s chairing of NSC Principals Committee meetings, in which she was “decisive” in authorizing brutal interrogation techniques, including authorizing waterboarding of three people in U.S. custody, telling the CIA “This is your baby. Go do it.” According to that report, the discussions were so detailed they were “almost choreographed—down to the number of times CIA agents could use a specific tactic.”
One cannot help but imagine that the “choreography” of interrogations, discussed in the reports of the National Security Council’s Principals Committee meetings, which were chaired by Condoleezza Rice, would have been along similar lines as in these memos, and just as barbaric.
2. Official statements and the Nuremberg defense
Statement by Director of National Intelligence (and prima facie war criminal, accessory to Indonesian atrocities in East Timor) Dennis Blair:
Blair essentially invokes the Nuremberg defense — “just following orders” — or the recent variant, “just following orders while relying on get-out-of-jail-free legal opinion” — to argue that interrogator-torturers should not be prosecuted.
But the point of the Nuremberg defense, as we should know, is that it is *not* supposed to be a defense. He misses the entire point that it is the right, indeed duty, of all people, in armed forces or anywhere, to disobey illegal orders. (There is section 1004 of the Detainee Treatment Act, as (lightly) amended by section 8 of the Military Commissions Act, but this is the general principle.) Of course there is also the obvious consideration that those at the top, giving the orders and authorizing any torture, are primarily responsible, and hence much more worthy of prosecution than those performing their orders on the ground.
Statement by Obama:
Obama, law professor and scholar, also invokes this Nuremberg defense as if it were legally and morally clear. The final two paragraphs make explicitly opposite statements; this is a clear hedge, and his well-known position.
[N]othing will be gained by spending our time and energy laying blame for the past… That is why we must resist the forces that divide us, and instead come together on behalf of our common future.
The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals.
However, if the first of these two paragraphs means a commitment not to prosecute, it is a nonsensical position. The laws in which Obama expresses his “unshakeable commitment” obligate his administration to investigate and prosecute war crimes that have occurred in his jurisdiction: not because it is a matter of laying blame for the past, but because those who commit grave crimes must be held accountable for their actions, in order to ensure the rule of law, and in order to ensure that such horrors do not happen again.
3. The obligation to investigate, and amnesty
One such law is Article 12 of the Convention Against Torture, to which the US is a party, and as a properly ratified treaty is the supreme law of the land. Article 12 states that a State Party “shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.”
David Cole, on an interesting NY Times blog, notes the obligation to investigate under the Convention Against Torture:
Scott Horton discussed Obama’s effectve amnesty (and many other things) on Democracy Now (discussed earlier on some of these email lists):
Obama Releases Bush-Era Memos Authorizing Torture Techniques, Rules Out Prosecuting CIA Interrogators who Carried Them Out
The surprising thing was, of course, the statement that was released alongside of it that there would be no prosecution of CIA agents who relied on these memos in performing their duties. And I’d say that that outcome—most people who’ve studied this don’t expect that there ever would be such prosecution, certainly not of ground-level people at either the CIA or the Department of Defense. But there’s some very serious issues about how this is raised, in particular because this amnesty—and that’s effectively what it is—is being granted before an investigation of all the facts has been completed. And I think, in terms of proper process, it would be appropriate to lay down the facts to establish them and then make some sort of decision about amnesty.
Michael Ratner, from the same NY Times Blog above, on legal advice as get-out-of-jail free card:
Torture is torture and all the legal window dressing in the world cannot hide its essence: the infliction of pain and suffering on human beings. If legal advice can protect torturers, no official anywhere can ever be prosecuted. Legal advice then becomes a get out-of-jail free card and will be employed by every petty dictatorship to protect its abusers.
In making the decision not to prosecute, President Obama is acting as jury, judge and prosecutor. It is not his decision to make. Whether or not to prosecute law breakers is not a political decision. Laws were broken and crimes were committed. If we are truly a nation of laws as he is fond of saying, a prosecutor needs to be appointed and the decisions regarding the guilt of those involved in the torture program should be decided in a court of law.
Is Obama flouting the law by not proceeding to a prompt and impartial investigation of Yoo, Bybee, Bush, Cheney, Rumsfeld, and others… including, of course, Condoleezza Rice?
4. Depths of barbarity
“You asked me once, what was in Room 101. I told you that you knew the answer already. Everyone knows it. The thing that is in Room 101 is the worst thing in the world.”
— O’Brien, in George Orwell, 1984
Also on the same NY Times blog mentioned above, Michael Ratner notes that the sadistic use of insects is, literally, straight out of Orwell’s room 101 in MiniLove:
“There is nothing abstract about the techniques: they are initially focused on one individual and even discuss his psychological weakness in language similar to the novel 1984 — although in this case, it’s bugs, not rats.”
Scott Horton on the barbarity and the use of healthcare professionals:
Well, we’re seeing the realization of two famous pieces of literature, aren’t we? George Orwell’s 1984 with the rat—remember, the rat was selected after psychoanalysis of the subject revealed that he had a fear of rats, so this was being used to terrorize, quite literally, the individual—as well as Terry Gilliam’s filming of Brazil, where we know again study of fear was used to drive, to craft special techniques. … [The memos suggests] that with respect to this prisoner, the diagnosis of psychiatrists and psychologists who had studied his case was that he had an irrational fear of insects. So let’s use this fear to unhinge him.
So, the other thing I think we should note, going back here, is this shows the central role played by healthcare professionals in the crafting and implementation of this entire process. It’s clear from reading these memoranda that doctors and psychologists are present at every stage along the way, supervising what’s going on, but also suggesting and refining the techniques to make them more terrible.
And some more from the NY Times editorial:
These memos are not an honest attempt to set the legal limits on interrogations, which was the authors’ statutory obligation. They were written to provide legal immunity for acts that are clearly illegal, immoral and a violation of this country’s most basic values.
It sounds like the plot of a mob film, except the lawyers asking how much their clients can get away with are from the C.I.A. and the lawyers coaching them on how to commit the abuses are from the Justice Department. And it all played out with the blessing of the defense secretary, the attorney general, the intelligence director and, most likely, President Bush and Vice President Dick Cheney.
These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him. And if the administration will not conduct a thorough investigation of these issues, then Congress has a constitutional duty to hold the executive branch accountable. If that means putting Donald Rumsfeld and Alberto Gonzales on the stand, even Dick Cheney, we are sure Americans can handle it.
Is there any reason why Condoleezza Rice should not be added to that list, as chair of the Principals Committee of the National Security Council — their discussions and decisions, so far as we know, right out of the plot of the same mob film? There is one significant difference: the Principals Committee were not just lawyers — they were actual decision-makers, with all the legal responsibility that entails.
5. Hoover fellows to the rescue
They are out in force! (A concerted effort?)
On the aforementioned NY Times Blog we have Kori Schake making an argument against prosecution, which she is perfectly entitled to do, except it’s relevant to us because of her Hoover position. She informs us that applying the rule of law in a democracy is now called “politicization”.
Still at the same blog, Kenneth Anderson, also from Hoover, rightly points out that “Congress Knew All Along”, including senior Democrats. Unfortunately, he also seems to regard the Nuremberg-plus-get-out-of-jail-free-card defense as “obvious”, rather than obviously not a defense, given that Democrats were complicit. It is not at all clear why war crimes become non-prosecutable when the opposition party proves to be (or perhaps, was well known to be) spineless and fails to take a stand against them. Does one decide not to prosecute a Nazi officer because the SPD failed to prevent, or even knew about, or even sympathized with Nazi atrocities? But this argument, ridiculous in principle, is made in such a dismissive fashion that one is not sure whether he actually means it as a matter of principle, or as a matter of prosecutorial discretion.
Such arguments by those we are supposed to look up to on campus speak for themselves. All the more so, when there are faculty on campus against whom there is a prima facie case of war crimes.
One should also note that, in the case of Rice, there is also a prima facie case of participation in the much worse crime of aggressive war, the supreme crime against international law, the same crime for which the Nazis were hanged at Nuremberg. The evidence is overwhelming that she was a principal participant in the planning and propaganda efforts of the war on Iraq, a monstrous crime leading to hundreds of thousands of deaths — by some estimates, well over a million.
What if such people lived nearby; what if they came to dinner?
Extremely interesting statistics.
This is a national survey of 1,000 US adults, a couple weeks ago, 95% confidence interval is +/- 3 percentage points.
Which is a better system – capitalism or socialism?
27% Not sure
That is, pick 1,000 random americans off the street, ask them to choose between capitalism and socialism, and 200 will answer socialism; another 270 will be unsure.
Those 20% hold that belief in spite of a century of capitalist propaganda, in spite of nearly a century of Soviet propaganda that socialism means the USSR, in spite of the opinion being heresy in all respectable circles everywhere in the world, and in spite of no serious model of a desirable functioning socialist system in existence, or possibly even in theory.
Also, Bill Blum mentioned in his most recent anti-empire report (also including some discussion of his socialism) an interesting statistic, which has been around for a while.
“In 1987, nearly half of 1,004 Americans surveyed by the Hearst press believed Karl Marx’s aphorism: “From each according to his ability, to each according to his need” was to be found in the US Constitution.”
Socialists have no seriously worked out alternative, have no elite support, very few serious political parties with significant support, and a deafening chorus unanimous in its condemnation among all the great and the good of the world.
And yet, they have 20% of the population of the most fiercely capitalist nation on earth behind them. Never underestimate the resiliency of the heretical belief in social justice!
Imagine if they got their act together.
“Oh, your prudery; oh, your squeamish respectability; all the abominations are allowed to *happen*, but no one may mention them. Delicate women must not know anything or say anything about blood and filth… There is nothing indecent about death and killing as far as you are concerned, you well brought up little ladies…”
“[T]he way [respectable] conversation customarily handles a new movement that strives to create a big upheaval: with an expression of prudent doubt and reservation, gentle ridicule, condescending recognition of the noble cause — and all of that against a background of unmoving, rigid indifference.”
— Bertha von Suttner, 1889
With Rice on present faculty, Rumsfeld immediate past “Distinguished Visiting Fellow”, Powell given recent fawning invitation, who’s next?
John Bolton! Speaking April 14, 2009, at Stanford.
In May 2008, the British journalist George Monbiot attempted a citizen’s arrest on Bolton. Monbiot’s indictment, which he attempted to serve on Bolton, appeared in the British press:http://www.telegraph.co.uk/news/worldnews/northamerica/usa/2042636/John-Bolton-charge-sheet-George-Monbiots-list-of-accusations.html
Monbiot appeared on Democracy Now afterwards.
“This is not an ordinary political mistake which was committed in Iraq. This was the supreme international crime, which led to the deaths of hundreds of thousands of people. Those people were not killed in the ordinary sense; they were murdered. And they were murdered by the authors of that war, who are the greatest mass murderers of the twenty-first century so far.”
Topic: “The Coming War on Sovereignty”, no less. Presumably that means arguing against international criminal indictments that may be issued against those involved in the commission of vast war crimes, like himself. As far as sovereignty is concerned — a central principle of international law — it is precisely the principle most egregiously violated by aggressive wars. Bolton has already participated in waging war on sovereignty and sovereign nations. The “coming war on sovereignty” he presumably refers to is, in fact, a legal and political struggle to restore the most basic aspect of sovereignty — the prohibition on invading other nations — by making accountable those who violate this most fundamental obligation of international law.
One imagines that, as a criminal defendant, Bolton would be making a very similar speech about the illegitimacy of law. Except there he would be laughed out of court and into prison, instead of being received with polite applause in a prestigious law faculty.
Bolton’s involvement in perpetrating war on Iraq, as detailed by Monbiot, however pales in comparison to the role of Rice, as detailed in the open letter.