“What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration”

[seemslikeadream]

Anybody here going to watch tomorrow? See ya there :hi:




http://judiciary.senate.gov/hearings/hearing.cfm?id=3842


“What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration”
Senate Judiciary Committee
Subcommittee on Administrative Oversight and the Courts
DATE: May 13, 2009
TIME: 10:00 AM
ROOM: Dirksen-226


--------------------------------------------------------------------------------

OFFICIAL HEARING NOTICE / WITNESS LIST:
May 6, 2009

NOTICE OF SUBCOMMITTEE HEARING
The Senate Committee on the Judiciary, Subcommittee on Administrative Oversight and the Courts will hold a hearing entitled "What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration" on Wednesday, May 13, 2009 at 10:00 a.m. in Room 226 of the Senate Dirksen Office Building.

Chairman Whitehouse will preside.

By order of the Chairman

Updated Witness List

Hearing before the Senate Judiciary Committee,
Subcommittee on Administrative Oversight and the Courts

on

"What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration"

Wednesday, May 13, 2009
Dirksen Office Building Room 226
10:00 a.m.


Philip Zelikow
White Burkett Miller Professor of History
University of Virginia
Charlottesville, VA

Ali Soufan
CEO
The Soufan Group LLC
New York, NY
Professor David Luban
Professor of Law
Georgetown University Law Center
Hyattsville, Maryland

Professor Robert Turner
Associate Director
Center for National Security Law
University of Virginal School of Law
Charlottesville, Virginia

Professor Jeffrey Addicott
Center for Terrorism Law
St. Mary's University School of Law
San Antonio, Texas


http://www.dailykos.com/story/2009/5/12/730469/-Upcoming-Senate-Hearing-on-Torture-(with-Poll)

Upcoming Senate Hearing on Torture (with Poll)
by fflambeau
Share this on Twitter - Upcoming Senate Hearing on Torture (with Poll) Tue May 12, 2009 at 03:19:37 AM PDT
I've not seen much coverage of this at all. The Senate Judiciary Committee, Subcommittee on Administrative Oversight and the Courts, will hold a hearing this Wednesday, May 13, 2009, beginning at 10 AM. The topic: "What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration." Wednesday's hearing will be chaired by Sen. Sheldon Whitehouse, D-R.I., who also is a member of the Intelligence Committee and attended secret briefings on the interrogation methods by intelligence officials in the George W. Bush administration.

fflambeau's diary :: ::
The official website of the Senate Judiciary Committee lists the following witnesses to be called:

Philip Zelikow
White Burkett Miller Professor of History
University of Virginia
Charlottesville, VA

Ali Soufan
CEO
The Soufan Group LLC
New York, NY

Professor David Luban
Professor of Law
Georgetown University Law Center
Hyattsville, Maryland

Professor Robert Turner
Associate Director
Center for National Security Law
University of Virginal School of Law
Charlottesville, Virginia

Professor Jeffrey Addicott
Center for Terrorism Law
St. Mary's University School of Law
San Antonio, Texas

SOURCE: http://judiciary.senate.gov/...

The AP quotes Sen. Whitehouse as follows:

"The hearing of the Judiciary administrative oversight and the courts subcommittee, he said, will focus on legal issues that are not part of the intelligence inquiry. The primary issue is the conduct of Justice Department lawyers who wrote or approved memos justifying waterboarding, sleep deprivation and other harsh interrogation methods.

A draft report from an internal Justice Department investigation said Bush administration lawyers who approved harsh methods should not face criminal charges but said two of the attorneys face possible professional sanctions.

"I have spoken to my leadership and to Sen. Feinstein. Everybody seems very comfortable with what I'm doing," Whitehouse said.

Whitehouse said he had "no feedback of any kind" from the Obama administration. "I assume if they had discomfort they would have communicated that to someone. I get zero sense that the administration is concerned about what particular committee should do this."

A White House spokesman, Ben LaBolt, said the administration would have no comment on Whitehouse's hearing.

One witness scheduled to testify Wednesday, Philip Zelikow, was among the Bush administration's top State Department officials who fought the interrogation techniques in fierce internal battles with former Vice President Dick Cheney and the Justice Department. He wrote a memo protesting that the techniques violated the Constitution."

SOURCE: http://hosted.ap.org/...

Ali Soufan, it may be recalled, was an FBI Special Agent who questioned Abu Zubaydah. He has criticized "enhanced interrogation techniques" as counterproductive and said the methods caused a rift between the FBI and the CIA:

"One of the most striking parts of the memos is the false premises on which they are based. The first, dated August 2002, grants authorization to use harsh interrogation techniques on a high-ranking terrorist, Abu Zubaydah, on the grounds that previous methods hadn't been working. The next three memos cite the successes of those methods as a justification for their continued use. It is inaccurate, however, to say that Abu Zubaydah had been uncooperative. Along with another F.B.I. agent, and with several C.I.A. officers present, I questioned him from March to June 2002, before the harsh techniques were introduced later in August. Under traditional interrogation methods, he provided us with important actionable intelligence.

...
There was no actionable intelligence gained from using enhanced
interrogation techniques on Abu Zubaydah that wasn't, or couldn't have been, gained from regular tactics. In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions - all of which are still classified. The short sightedness behind the use of these techniques ignored the unreliability of the methods, the nature of the threat, the mentality and modus operandi of the terrorists, and due process."

SOURCE: http://groups.google.com/...

Professor Luban is at Georgetown Law School, contributed a chapter to the book "The Torture Debate" and wrote, as long ago as 2005, a thoughtful piece at the Washington Post entitled "Torture: American Style". What is interesting about this excerpt from his article is that torture was already being discussed as early as 2005 (and before) in the mainstream media--so no excuse for those on the intelligence oversight committees as to not knowing what was going on:

"We don't torture" means that we don't use worse tactics than CID -- except when we do. Waterboarding (in which a prisoner is made to believe he is drowning) and withholding pain medication for bullet wounds cross the line into torture -- and both have allegedly been used. So does "Palestinian hanging," where a prisoner's arms are twisted behind his back and his wrists are chained five feet above the floor.

A Nov. 18 ABC News report quoted former and current intelligence officers and supervisors as saying that the CIA has a list of acceptable interrogation methods, including soaking naked prisoners with water in 50-degree rooms and making them stand for 40 hours handcuffed and shackled to an eyebolt in the floor. ABC reported that these methods had been used on at least a dozen captured al Qaeda members. All these techniques undoubtedly inflict the "severe suffering" that our law defines as torture.

Consider the cases of Abed Hamed Mowhoush and Manadel Jamadi. Mowhoush, an Iraqi general in Saddam Hussein's army, was smothered to death in a sleeping bag by U.S. interrogators in western Iraq. Jamadi, a suspected bombmaker, whose ice-packed body was photographed at Abu Ghraib, was seized and roughed up by Navy SEALS in Iraq, then turned over to the CIA for questioning. At some point during this process, according to an account in the New Yorker magazine, someone broke his ribs; then he was hooded and underwent "Palestinian hanging" until he died.

SOURCE: http://www.washingtonpost.com/...

Robert Turner is also a Professor at Virginia specializing in national security law. While he has said while he strongly opposes waterboarding, he doesn't think the government should prosecute U.S. officers.

"On balance, I just don't see anything good coming out of that kind of an investigation," said Turner. "The worst thing would be a partisan investigation and that's what I would expect."

SOURCE: http://www.breitbart.com/...

Witness Prof. Jeffrey Addicott of St. Mary's U. School of Law in Texas is Director of the Center For Terrorism Law. The Center has filed legal briefs focusing on protecting U.S. military personnel held as POWs from torture, and the impact on eroding the nation’s longstanding policy against the torture of POWs. Addicott was a former U.S Army Special Forces legal adviser and had this to say about a legal probe into the CIA's destruction of interrogation tapes:

"There are some questions that need to be answered, particularly these serious allegations about the United States engaging in torture. I think it's in our best interests to find out what occurred and to put this to rest as soon as possible..."

Sources:
For quotation: http://www.reuters.com/...
http://www.stoppowtorture.org/

Three additional witnesses that the subcommittee should call:

Prof. Jonathan Turley of George Washington Law School who is an outspoken (and articulate) opponent of torture. And for the background on torture:
Prof. Alfred McCoy of the History Department at the University of Wisconsin, Madison whose book "A Question of Torture: CIA Interrogation from the Cold War to the War on Terror" shows how long the CIA really has been involved in the dirty trade. It's a fascinating, must read by a highly respected historian.
A third witness the Committee should hear from is attorney Jesselyn Raddack a former attorney at OLC who is being disciplined for actually having recommended that American Taliban" John Walker Lindh be supplied with counsel. She is providing written comments to the committee. See for more http://www.dailykos.com/... (and thanks to poster Victoria2dc for pointing this out to me.)
SEE for Alfred McCoy book: http://www.amazon.com/...

The Subcommittee holding the hearings has 6 Democratic Members (including, fortunately, Wisconsin's Russ Feingold) and 4 Republicans. The Democrats:

Members
Sheldon Whitehouse, R.I. (Chairman)
Dianne Feinstein, California
Russell D. Feingold, Wisconsin
Charles E. Schumer, New York
Benjamin L. Cardin, Maryland
Edward E. Kaufman, Delaware

The Republicans:

Members
Jeff Sessions, Alabama (Ranking Member)
Charles E. Grassley, Iowa
Jon Kyl, Arizona
Lindsey Graham, South Carolina

Source: http://judiciary.senate.gov/...

This will be a fascinating session to watch (the Judiciary Committee website shows a webcast link) for several reasons. First, to see the testimony of the witnesses, especially Zelikow. Second, to see what information and questions are asked by Democrats like Feinstein (who appears to have been fully briefed on "enhanced interrogation techniques" but did little). Third, to see what the reaction of the Obama administration is to all of this. Fourth, to see what the public reaction is. Fifth, to see how the press covers it. Sixth, to see whether the Republicans try to turn this into a partisan event and whether there is dissension within the Republicans on this issue.

Let's hope this is the beginning of an intense, nonpartisan investigation into torture followed by appointment of a special prosecutor.





Sheldon Discusses Whether Torture Works on MSNBC's Hardball
http://www.youtube.com/watch?v=MfdzONn8OPo

[seemslikeadream]

I guess it hasn't started yet

[Virgil]

Relevant page = http://judiciary.senate.gov/hearings/hearing.cfm?id=3842

It says it comes courtesy of Cspan and it does not list it at noon.

[seemslikeadream]

http://washingtonindependent.com/13453/waterboarding

http://washingtonindependent.com/wp-content/uploads/2008/09/waterboard1.jpg

Before a packed crowd at the Netroots convention, Cass Sunstein, a law professor at Harvard and the University of Chicago and a legal adviser for Sen. Barack Obama, was asked how the next president should address the Bush administration’s potential war crimes. When Sunstein said the new adminstration must be cautious and not partisan in the use of the prosecutorial power, though egregious acrs should not be ignored, he was still met with a chorus of boos and angry rejoinders that the president and his Cabinet cannot remain above the law.

Since then, legal experts have generally agreed that the next administration is unlikely to prosecute Bush administration officials for authorizing the torture of suspected terrorists — no matter how many laws the government officials broke. But that hasn’t placated many others, like George Washington University Law Professor Jonathan Turley, or the constitutional lawyer and author Glenn Greenwald, who argue that holding policy-makers accountable for their actions is critical to restoring the reputation of the United States — not to mention respect for the rule of law.


Illustration by: Matt Mahurin
Indeed, how can a new president refuse to prosecute Bush administration officials for authorizing the same acts, like waterboarding, that the United States has previously prosecuted as contrary to U.S. and international law?

The Washington Post reported Tuesday that the Bush administration had issued secret memos in 2003 and 2004 explicitly endorsing the Central Intelligence Agency’s use of waterboarding and other harsh interrogation techniques — otherwise known as torture — against suspected terrorists.

Though Atty. Gen. Michael Mukasey still hasn’t said whether he believes waterboarding constitutes torture, the evidence of illegal conduct by senior administration officials is getting harder and harder

[seemslikeadream]

http://tpmmuckraker.talkingpointsmemo.com/2009/05/zelikow_testifying_this_morning_calls_for_independ.php



Zelikow, Testifying This Morning, Calls For Independent Torture Probe
By Zachary Roth - May 13, 2009, 10:06AM
As we prepare for a Senate hearing on the Bush torture program, it's worth taking a look at an interview that one of the key witnesses, Philip Zelikow, gave to Foreign Policy's Laura Rozen yesterday, which provided an advanced look at what he's likely to say.

Zelikow, a top State Department lawyer under Condoleezza Rice, recently revealed that the White House tried to destroy all copies of a memo he wrote that offered an alternative view on the legality of torture. He later said he suspected at the time that Dick Cheney had led that effort.

Speaking to Rozen yesterday, Zelikow expanded on what happened:


I tried to raise consciousness that there was a massive potential problem here. 'Maybe we should do something.' And the answer to that was silence. 'We don't want to discuss this. We don't want to reassure you. We prefer to ignore you raised this.' I worked hard on this memo. I wish people had answered to tell me why we [dissenters] were so wrong.' But their preference was, 'Your intervention is so frivolous and out of school that it doesn't deserve a response.' That's too bad.

He also called for an independent commission to probe the torture program:


[O]ne of the reasons I support some kind of inquiry is to comprehend why so many people believed that a program like this was a good idea - since we now believe it was a mistake. So we can learn from the mistake. When there is this kind of collective failure, we need to learn from what happened.

He said it should be along the lines of the 9/11 commission that he himself directed:


That way you don't have a situation where Jay Rockefeller and Nancy Pelosi are seen as being hypocrites. Turn over the inquiry to others. That is the way they can neatly address this argument, because they won't be the ones conducting the inquiry.

It's worth noting that Jonathan Turley, a professor at George Washington Law School and prominent advocate for a full investigation, has explicitly criticized the 9/11 commission as a model, saying its members were unwilling to assign blame, and were too concerned to with protecting the political reputations of those who selected them.

The testimony to be given by the other marquee witness, former FBI agent Ali Soufan, is here.

[leftchick]

grahm is such an ass. I wish he would be waterboarded.

Senate Judiciary Hearing on Torture, Two
By: emptywheel Wednesday May 13, 2009 9:06 am

http://emptywheel.firedoglake.com/2009/05/13/senate-judiciary-hearing-on-torture-two/


Whitehouse: SASC report. Great deal of disagreement with OLC analysis. Mora called 2003 OLC memo profoundly in error. To extent that it relied on memo, did not include fair analysis. Chart based on OLC opinion. Green means go column. Read Admiral Dalton, that green column was wrong legally, embarrassing. At Haynes' direction, directed that OLC opinion supplant opinions of working group. Zelikow, you heard that copies of your memo should be collected and destroyed. What does that say?

Zelikow: Lawyers did not welcome peer review. Would shut down challenges even inside the govt.

Whitehouse: It's our nature to quarrel with each other. Is there any suggestion you would draw that they were less than perfectly confident with their views?

Zelikow: Arguments I was making were pretty profound, their whole interpretation of CID standard raises grave consequences. They had options. Let's take another look at this. Or, Zelikow, boy, this shows how rusty you are in practicing law. They didn't do either of those things, C, we don't want to talk about it.

Whitehouse: Luban. Lee decision. Texas decision. Addicott didn't cite it. Lee describes waterboarding as torture. In 93 pages, where they dig out medicare reimbursement, they don't find a case on point, in which the 5th circuit, calls it repeatedly torture. I've pressed the DOJ on this, bc I think it's unimaginable. AG Mukasey's response was that it wasn't relevant under Civil Rights Act, doesn't relate under CAT. At that time I was out of time. Civil RIghts Act has no substantive elements of its own. Vehicle for enforcing Constitutional violations. Leads directly to Constitutional standards on torture. What OLC said about it--definition also founded on Constitutional standards of US. Impossible by Congress by statute, the statute criminalizing torture cannot create a definition of torture that narrows Constitutional definition. Distinction is yet another false device. They either missed case on point. I guess we'll find out from OPR which it was.

Luban: Lee case decided in 1983, before CAT and torture statutes. Not surprising that it didn't exist yet.

Graham: Would it be torture to put a spider inside a jail cell who was afraid of spiders.

Luban: Conceivably.

Graham: Would you say if we put a spider in the jail cell we were torturing them.

Luban: If we knew that spiders are deadly. An ordinary person.

Graham: Mr. Addicott has a different view about torture. Do you think he is unethical.

Luban: I think he would be unethical if he

Graham: You're basing your opinion that he didn't cite a case. Is that what this came down to? Is that what you're telling this committee? How could Mr. Addicott come to an entirely different definition.

Luban: The Ireland case is not the only European case.

Graham: The fact that you didn't tell me about the Ireland case, can I assume that you are unethical.

Luban: Im not telling you about what is right and wrong.

Graham: You know what I don't think you're unethical.

Addicott: I've got further bad news for Soufan. Individual who was interrogated while in hospital case. Stevens said that was torture.

Whitehouse: You're not suggesting it's torture to question in a hospital. You think it stands for the proposition that any interrogation in a hospital would be torture.

Addicott: that's what he says in his opinion.

Graham: Do you know a gentleman named Kiriakou? He gave an interview that said Zubaydah, they waterboarded the guy and he broke within 35 seconds.

Soufan: He retracted that last week. That's one of the things that was mentioned before, and now we know it was 83 times.

Graham: No good information?

Soufan: I would like you to evaluate what we got before.

Graham: I'd like to have both sides of the stories. Apparently they work.

Soufan: It's easier to hit someone than outsmart them.

Graham: Your testimony is not a complete repository of what happened with high value targets.

Whitehouse: He hasn't represented himself as anyone else who can represent his experience.

Graham: Do we need to keep doing this? We're going to make this chilling to the next group that needs to defend this nation. Wrong for Obama to authorize outside AFM?

Soufan: I believe they should ask other professional interrogators.

Graham: Do you believe Panetta qualified for his job. Wyden asked if urgent information. In that situation, ticking time bomb. I think we'd have to do everything possible. Obviously whatever was being used, was not sufficient, I would not hesitate whatever authority needed. Would the POTUS be wrong in considering request beyond AFM, that were lawful.

Soufan: Key quote within the law.

Whitehouse: Add following statements into record. Professional interrogators. Close with words of Matthew Alexander. Led team that located Zarqawi. At the time we killed Zarqawi, he was highest priority, higher than OBL. Lack of evidence that abuse is faster. That method only served to harden resolve of detainee. Second argument against, number one recruiting tool. Majority state the reason they came to Iraq to fight was because of abuse at Abu Ghraib. Not an exaggeration to say that hundreds if not thousands of Americans died because of these techniques. Learned quickly that AQ had much more in common with traditional criminal organizations. Non-coercive subterfuge to great success. I also want to address ticking time bomb. Lived through this every day. Most had knowledge of future bombings. What works best is relationship building. Not time-consuming. Building relationship with prisoner not time consuming. 10-15 minutes, relationship building and deception. It is about being smarter not being harsher.

Graham: These interrogation techniques were shared with members of Congress who somehow can't remember what they were told. That's the best evidence that they were trying to make policy, not break the law. If we keep doing this, bring in people to say, let me tell you what I got, we will tear this country apart. The British may not have tortured people in N Ireland. They were legally not torturing people. They made a mistake when it came to winning over the people of N Ireland. If we restrict us to the Army Field Manual, it is the Field Manual to protect themselves. It was never written to be the end-all and be-all of how you protect this nation. If we put it online, and that's the only way you can interrogate anyone, we're stupid. We have put people in Gitmo that were not enemy combatants. Some people let go that should have never been let go. Allow us to hold up our head to say no one is in Gitmo because Dick Cheney said so. I'm so afraid that we're putting men and women at risk who did nothing but their best to try to defend this nation.

[seemslikeadream]

"This amateurish technique is harmful to our long-term interests. It plays into the enemies playbook."



http://tpmmuckraker.talkingpointsmemo.com/2009/05/soufan_torture_is_amateurish_technique.php

Soufan: Torture Is "Amateurish Technique"
By Zachary Roth - May 13, 2009, 11:32AM
Ali Soufan, who has participated in interrogations of high-level terror suspects including Abu Zubaydah, is giving a detailed explanation of superior intelligence methods, within the Army field manual, that don't involve torture.

Soufan said that when he used such methods on Zubaydah, they produced actionable intelligence in less than an hour.

As for torture, said Soufan: "This amateurish technique is harmful to our long-term interests. It plays into the enemies playbook."

Soufan made clear: "My interest is not to advocate the prosecution of anyone." Rather, he wants to see us learn from our mistakes.