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https://www.alternet.org/2021/11/gitmo-jurors/

torture

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https://www.alternet.org/2020/02/how-the-cowardice-of-the-obama-administration-foreshadowed-the-impunity-of-trump/

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How the cowardice of the Obama administration foreshadowed the impunity of Trump

Written by Rebecca Gordon / Tom Dispatch February 18, 2020

On February 5th, the Senate voted to acquit President Donald J. Trump of abuse of power and obstruction of Congress. In other words, Trump’s pre-election boast that he “could stand in the middle of Fifth Avenue and shoot somebody” and not “lose any voters” proved something more than high-flown hyperbole. (To be fair, he did lose one Republican “voter” in the Senate — Mitt Romney — but it wasn’t enough to matter.)

The Senate’s failure to convict the president will only confirm his conception of his office as a seat of absolute power (which, as we’ve been told, “corrupts absolutely”). This is the man, after all, who told a convention of student activists, “I have an Article II, where I have the right to do whatever I want as president. But I don’t even talk about that.” Except, of course, he does.

The day after the Senate vote, a decidedly unchastened Trump spoke at a National Prayer Breakfast, brandishing a copy of USA Today whose banner headline contained a single word: “Acquitted.” After disagreeing with the prayerful suggestion offered by Arthur Brooks, former head of the conservative American Enterprise Institute (and a couple of millennia earlier by one Jesus of Nazareth), that we should love our enemies, the president promptly accused both Mitt Romney and House Speaker Nancy Pelosi of inadequate prayerfulness. He lumped Romney in with people “who use their faith as justification for doing what they know is wrong” and accused Pelosi, not for the first time, of lying when she says she prays for him.

Trump’s endless boasting about his invulnerability can certainly be blamed on the dismal swamp of his own psyche, but there’s another at least partial explanation for it — and it lies in the country’s collective failure to hold anyone responsible for crimes committed since 2001 in the “war on terror.” If one administration can get away with confining detainees in coffinlike boxes and torturing them in myriad other ways, why shouldn’t a later one go unpunished for, to take but one example, putting migrant children in cages?

Forward, Not Backwards

In 2009, Barack Obama prepared to enter the Oval Office promising to end the worst excesses of the previous administration’s war on terror. Although he did close the CIA’s detention centers and prohibit torture, he also quickly signaled that no one would be held accountable for the already well-documented practice of torture promoted by the administration of George W. Bush and his vice president, Dick Cheney. A week or so before Obama’s inauguration, the president-elect was already assuring ABC News’s George Stephanopoulos that, although there would be prosecutions if “somebody has blatantly broken the law,” on the whole he believed “that we need to look forward as opposed to looking backwards.”

In particular, Obama was concerned that government operatives should not be hampered in the future by fear of prosecution for past acts sanctioned by top officials:

“And part of my job is to make sure that, for example, at the CIA, you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got to spend all their time looking over their shoulders.”

As it turned out, they need not have worried. On April 17, 2009, as Carrie Johnson and Julie Tate reported in the Washington Post, “President Obama and Attorney General Eric H. Holder Jr. reassured CIA employees anew yesterday that interrogators would not face criminal prosecution so long as they followed legal advice.” As Holder put it, “It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department.”

The legal advice in question had been contained in a series of infamous memos written by that department’s Office of Legal Counsel (OLC) between 2002 and 2005. In them, the legal definition of torture was “clarified” for a nervous attorney general, Alberto Gonzalez, and the CIA. One memo, drafted by Deputy Assistant Attorney General John Yoo and signed by Assistant Attorney General for the OLC Jay Bybee, explained that to “constitute torture” under the law, physical pain “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” To meet the legal definition of psychological torture, mental suffering “must result in significant psychological harm of significant duration, e.g., lasting for months or even years.”

Not surprisingly, despite the previous administration’s stamp of approval on what were euphemistically called “enhanced interrogation techniques,” a three-year investigation by the Obama Justice Department into CIA interrogation practices came to a whimpering end in August 2012, when Holder announced that the only two remaining torture cases, both of which involved deaths in U.S. custody, would be dropped.

A year earlier, as Glenn Greenwald reported in the Guardian, Holder had decided not to prosecute anyone in 99 other cases of “severe detainee abuse.” The two remaining cases concerned the death by torture and hypothermia of Gul Rahman in the CIA’s notorious Salt Pit prison in Afghanistan in 2002 and that of “Manadel al-Jamadi, who died in CIA custody after he was beaten, stripped, had cold water poured on him, and then [was] shackled to the wall” at Abu Ghraib prison in Iraq.

Among those Holder presumably chose not to charge were the men responsible for designing and implementing the protocols that led to Rahman’s death, along with tortures like waterboarding and “walling” (the slamming of the back of a prisoner’s head repeatedly into a wall). Thus ended any hope of holding torturers legally accountable in the United States of America, early proof of the kind of impunity that has, in the Trump years, spread elsewhere.

Torturer Redux

Shortly before Donald Trump’s recent triumph in the Senate, one of those “extraordinarily talented people” hailed by President Obama resurfaced in a courtroom not as a defendant, but as a hostile witness. James Mitchell was called to the stand by the defense at pre-trial hearings at the Guantánamo detention facility in Cuba, the offshore prison for detainees in the war on terror set up by the Bush administration in 2002. In the dock almost 18 years later are five men, long held there, who have been accused of involvement in the 9/11 terrorist attacks. The most notorious is Khalid Shaikh Mohammed, often described as 9/11’s “mastermind.”

Mitchell is one of the two psychologists — the other being John “Bruce” Jessen — who designed the CIA’s main torture program. He has the honor of being considered the inventor of waterboarding, a series of techniques aimed at producing water-induced suffering that have formed part of the armamentarium of torturers for centuries. (Perhaps “reinventor” would be the more accurate term.) Mitchell was, in fact, the first person to perform waterboarding in the war on terror, as well as being the architect of walling, of confining victims in tiny boxes, and of a variety of other grim “enhanced interrogation techniques” first employed at CIA “black sites” set up around the world in those years.

Called by defense attorneys to describe the torture their clients endured, a “defiant” Mitchell told the courtroom, “I’d get up today and do it again.”

As New York Times reporter Carol Rosenberg explained, Mitchell was not actually talking about what he did to any of the five defendants in the dock at Guantánamo, although he did torture some of them. He was referring to the first prisoner to be waterboarded under the CIA torture program, Saudi national Abu Zubaydah who was waterboarded a total of 83 times over the course of a single month. President George W. Bush’s secretary of defense, Donald Rumsfeld, claimed (falsely, as it turned out) that he was “if not the number two, very close to the number-two person in” al-Qaeda and that he had run an al-Qaeda training camp in Afghanistan.

In fact, as the Obama administration acknowledged in 2010, Abu Zubaydah was never even a member of that group, let alone one of its key lieutenants. Captured in a joint CIA-FBI operation in Pakistan in 2002, he would be shuffled between CIA black sites for the next four-and-a-half years, including the Agency’s secret “Strawberry Fields” site at Guantánamo. In part because of what the CIA did to him, Abu Zubaydah remains imprisoned there to this day. According to CIA recommendations, he is never to be “placed in a situation where he has any significant contact with others and/or has the opportunity to be released.”

Nevertheless, Mitchell oversaw the 83 times Abu Zubaydah was waterboarded in a single month at a CIA black site in Thailand, during which he came close to death by drowning. On one of those occasions, as the Senate Intelligence Committee’s 2014 report on CIA torture revealed, he was observed to be “completely unresponsive, with bubbles rising through his open, full mouth.”

Not unlike our president, Mitchell seems to be deeply hurt by what he perceives as unfair criticism. “You folks have been saying untrue and malicious things about me and Dr. Jessen for years,” he complained to defense attorneys at the Guantánamo hearing. People may have said mean things about him, but in reality, far from being held accountable for torture, James Mitchell has luxuriated in his impunity, earning royalties from his book Enhanced Interrogation: Inside the Minds and Motives of the Islamic Terrorists Trying To Destroy America and giving speeches arranged through the Worldwide Speakers Group (which advertises him as “psychologist, CIA interrogator, author”) at $15,000 to $25,000 a pop.

Nor did Mitchell fare poorly while employed by the CIA.  In fact, the Agency paid the company Mitchell and Jessen formed $81 million for their work. In addition, their contract included language guaranteeing that the U.S. government would cover any legal costs they incurred as a result of that work through the year 2021. This would turn out to come in handy when, in 2015, the American Civil Liberties Union (ACLU) sued the two of them on behalf of three of their victims: Suleiman Abdullah Salim, Mohamed Ahmed ben Soud, and the family of Gul Rahman, the detainee who had died of exposure to cold at the Salt Pit. Mitchell and Jessen settled the case in 2017 for an undisclosed sum, also paid by the U.S. government.

It Never Gets Easier

You’d think it would get easier over time. For almost two decades, I’ve been writing about torture. By now, you might imagine that I’d be at least somewhat desensitized to details about and descriptions of it. Instead, each time I dive into that cesspool, it appears even more disgusting and frightening.

If it’s hard for me, someone who has never been tortured and has spoken face-to-face with only a few torture survivors, imagine what it must be like for those who have survived the Bush-era torture programs, which went on for an unknown number of years. Actually, you don’t have to do too much imagining, since their testimony about how such abuse affected some of them and how lasting those effects were is available. In 2016, New York Times reporters Matt Apuzzo, Sheri Fink, and James Risen published a series of articles under the title “How U.S. Torture Left a Legacy of Damaged Minds.”

One of those profiled was Suleiman Abdullah Salim, a plaintiff in the ACLU suit against Mitchell and Jessen.A Tanzanian native, Salim was picked up in Mogadishu, Somalia, and turned over to U.S. operatives for reasons that remain murky. It’s most likely he was a victim of mistaken identity (and he wouldn’t have been the only such prisoner in the war on terror). We know, at least, that the Americans who bundled him onto a plane were expecting a Yemeni Arab and someone with much lighter skin. He ended up in Afghanistan at a black site he recalls as “the Darkness,” which was, in fact, the Salt Pit. There he was beaten, walled, shackled in complete darkness, exposed to relentless loud music, confined in a coffinlike box, repeatedly hung by the wrists — once for 48 hours straight — and drenched at times with ice water until he feared he was drowning.

Eventually, the CIA moved Salim to a prison at Bagram Airbase outside the Afghan capital, Kabul. In 2008, he was turned loose in Afghanistan with only the clothes he was wearing. The International Red Cross arranged a flight home to Zanzibar, Tanzania, where he still lives, haunted by the Darkness.

In 2010, the Times‘ Risen wrote, “Dr. Sondra Crosby of the Boston University School of Medicine, a physician, a Navy reservist and an expert on torture, was asked by Physicians for Human Rights, a New York-based group, to evaluate Mr. Salim.” She found that he was emaciated “like a skeleton” and “plagued by profound distress, inability to eat, and inability to sleep.” Risen’s report continues:

“‘He describes himself as a ghost walking around the town,’ she added. She noted other symptoms: flashbacks, short- and long-term memory loss, distress at seeing anyone in a military uniform, hopelessness about the future and a strong avoidance of noise. ‘He reports that his head feels empty — like an empty box,’ she said.”

The Times series also chronicled the suffering of another plaintiff in the case against Mitchell and Jessen: Mohamed ben Soud. He, too, was held at the Salt Pit, where his ordeal involved many of the same torture methods Salim had endured. Today, he has full-blown post-traumatic stress disorder. “He is racked with self-doubt and struggles to make simple decisions. His moods swing dramatically,” reported the Times.

First, Do No Harm?

The pre-trial hearings at Guantánamo have also revealed the rarely discussed role of doctors and other medical workers in the U.S. torture program. Apparently the reason we know that Abu Zubaydah was waterboarded 83 times and Khalid Shaikh Mohammed 183 times is that, as James Mitchell testified in January, a doctor was indeed present inside the torture chamber and used a little metal click-counter to keep track. According to the Times’s Rosenberg, however, doctors

“did more than count waterboarding sessions. Government investigations and evidence in the pretrial hearings of the men… show doctors conducted ‘rectal rehydration,’ carried out rectal cavity searches, and examined swollen feet and legs of captives who were sleep deprived for days by being shackled in painful positions.”

There is undoubtedly more to be uncovered about the role of medical personnel at the CIA’s global black sites. Indeed, there is more to be uncovered about all the ways in which detainees were stripped not only of their human rights but, at least in the minds of their tormentors, of their very humanity. At one point in his testimony, for instance, Mitchell turned to the attorney for Ammar al-Baluchi, one of the five 9/11 defendants. Speaking of Charlie Wise, the CIA interrogation chief and the rest of his crew, Mitchell said, “Looks like they used your client as a training prop.” According to the Guardian’s Julian Borger, in fact, under Wise’s leadership, “trainees had to use each of their techniques on Baluchi and other inmates in order to earn certification.”

And Mitchell himself used Abu Zubaydah as a demonstration prop, so bigwigs at the CIA would be implicated in what he was doing. Borger reports that “he waterboarded Abu Zubaydah even though he was quite sure the detainee had no actionable intelligence to surrender. It was done purely as a demonstration for the agency VIPs.”

The Price of Impunity

Thanks to the cowardice of the Obama administration, no CIA officer or any higher official in the administration of George W. Bush and Dick Cheney, no psychologist, no doctor, no one at all has yet been held accountable for the years of torture practiced on a global scale in the war on terror. Donald Trump himself, of course, got elected while publicly proclaiming about waterboarding that “I like it a lot” and he reportedly considered Gina Haspel’s black-site torture experiences a positive part of her resume when considering her for CIA director. Mitchell, of course, continues to make speeches and collect his royalties. George W. Bush has been rehabilitated as a kindly portrait painter.

Is it really so surprising, then, that we now have a man in the Oval Office who believes he has “the right to do whatever I want as president”? The history of the twenty-first-century war on terror suggests that, if he doesn’t have the right, he certainly appears to have the power.

Rebecca Gordon, a TomDispatch regular, teaches at the University of San Francisco. She is the author most recently of American Nuremberg: The U.S. Officials Who Should Stand Trial for Post-9/11 War Crimes and is now at work on a new book on the history of torture in the United States.

Follow TomDispatch on Twitter and join us on Facebook. Check out the newest Dispatch Books, John Feffer’s new dystopian novel (the second in the Splinterlands series) Frostlands, Beverly Gologorsky’s novel Every Body Has a Story, and Tom Engelhardt’s A Nation Unmade by War, as well as Alfred McCoy’s In the Shadows of the American Century: The Rise and Decline of U.S. Global Power and John Dower’s The Violent American Century: War and Terror Since World War II.

Copyright 2020 Rebecca Gordon

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Argentine Accused of Torture Under Dictatorship Extradicted from France

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Guantánamo Bay, Torture Apologists Take Refuge in Empty Code Words and Euphemisms

Margot Williams

“Don’t be fooled by ‘enhanced interrogation,’” torture architect James Mitchell told the court. “You are doing coercive physical techniques.”

READ MORE →

Rights groups urge Senate to reject nomination of torture advocate to top human rights post

Brett Wilkins / Common Dreams

Billingslea’s nomination has alarmed human rights advocates due to his unapologetic embrace of torturing suspected terrorists during the George W. Bush administration.

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haspell 5/18

one author of tort memo made judge? brett k lied about his involvement in senate confirmation hearings (and they are pissed; trying to limit docs, senate had to FOIA?!)

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https://www.alternet.org/news-amp-politics/cables-reveal-cia-torture-under-gina-haspel

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Room for Debate

A NEW YORK TIMES BLOG

https://roomfordebate.blogs.nytimes.com/:{2009:(style="background-color:#ffff66;"):}:/04/16/the-memos-torture-redefined

The Memos: Torture Redefined

BY THE EDITORS  APRIL 16, 2009 8:00 PM April 16, 2009 8:00 pm

CIA secret memos A screen shot of page 2 of the Aug. 1, 2002, secret memo that details interrogation techniques used by the Central Intelligence Agency. To see the four memos released by the Justice Department on Thursday, go here.

Updated, Apr. 20, 10:55 a.m. | Douglas W. Kmiec, who was head of the Office of Legal Counsel under Presidents Ronald Reagan and George H.W. Bush, offers his view.

Updated, Apr. 17, 1:00 p.m. | Kenneth Anderson, a law professor at American University and a research fellow at the Hoover Institution joins our discussion.

Updated, Apr. 17, 9:20 a.m. | We’ve updated this forum with commentary from David B. Rivkin, a lawyer and former official in the administration of George H.W. Bush.

The Justice Department on Thursday released four detailed memos, issued by the Office of Legal Counsel between 2002 and 2005, describing and approving the use of harsh interrogation techniques by the Central Intelligence Agency. President Obama said that while these techniques “undermine our moral authority and do not make us safer,” the C.I.A. operatives who relied on the legal advice would not be subject to prosecution.

We’re asking several legal and national security experts for their reaction to these memos and whether they think President Obama’s call for moving on from this chapter is the right decision.

Douglas W. Kmiec, legal adviser in Reagan administration

David Cole, Georgetown University Law Center

Kori Schake, United States Military Academy

Michael Ratner, Center for Constitutional Rights

David B. Rivkin, lawyer

Kenneth Anderson, law professor, American University

Obama’s Realism

Douglas W. Kmiec

Douglas W. Kmiec is a law professor at Pepperdine University. He was a head of the Office of Legal Counsel under Presidents Ronald Reagan and George H.W. Bush.

President Barack Obama deserves great credit for releasing these memos, though except for the listing of tortures — and that is what they are — the tortuous reasoning that yielded these had already been known.

My sense is that in 2002, there was a confluence of genuine fear of a follow-on attack far more devastating than 9/11; a president ill-prepared for the threat with respect to intelligence in every sense of the word; and Justice Department personnel who were either too young to have perspective, too academic to have practical wisdom, or too political to be capable of judgment.

Many, I know, wish to prosecute for war crime, and perhaps Spain still will. I doubt given the mental requirements for criminal penalty such would be successful, and I admire President Obama, yet anew, for taking the political heat from his left perimeter for grasping the futility of such prosecution.

It would be worthwhile to have a Nuremberg-style citizen-conducted ethics inquiry.

That said, it would be worthwhile to have a Nuremberg-style citizen-conducted ethics inquiry in which all of the opinion writers — and the opinion demanders in the Pentagon and former White House — would be required to self-critique why the Nation they most assuredly would say they love is today embarrassed if not appalled by what was authorized. The point of the exercise would be “looking forward” as President Obama properly desires, but in a manner that would be reminded out of the protagonists own attempts at explanation, why we cannot forget, and in the course of it all, to ensure that those presently exercising power, or those to come after, do not self-delude themselves into thinking it could not involve them or repeat.

Macabre and Excruciating

David D. Cole

David Cole, a professor at Georgetown University Law Center, is the author, most recently, of “Justice At War: The Men and Ideas That Shaped America’s ‘War on Terror.'”

The four legal memos released by the Obama administration on Thursday confirm in excruciating detail that the Bush administration employed twisted and macabre legal reasoning to authorize the unspeakable – the torture and cruel, inhuman and degrading treatment of human beings.

The memos’ matter-of-fact clinical descriptions belie the harsh tactics to which they gave a green light. They set the C.I.A. loose to slam suspects’ heads into walls up to 30 times in a row, to deprive suspects of sleep for more than a week straight, to confine them to small dark boxes for hours at a time, to slap them repeatedly in the face and abdomen, and to suffocate them with water to induce the perception that they are drowning.

Mr. Obama’s refusal to hold accountable those responsible for the wrongs so evident from the memos is unacceptable.

A child would recognize these tactics as cruel and inhumane. The United States itself treated waterboarding as torture when the Japanese used it against our troops in World War II. Yet through pages and pages of dense legal reasoning, the Office of Legal Counsel lawyers somehow reach the conclusion that these tactics, even when employed in combination and over a 30-day period, are not torture, and not even cruel, inhuman, or degrading.

President Obama should be commended for releasing these memos. But his simultaneous assertion that he will not seek to hold accountable those responsible for the wrongs so evident on the memos’ face is unacceptable. The line C.I.A. agents are not, however, the most culpable. Rather, it is the lawyers and high-level government officials who set this scheme in motion and made it possible. These documents are irrefutable evidence that government officials, including lawyers employed in the Office of Legal Counsel, a Justice Department office meant to serve as the “constitutional conscience” of the Executive Branch, set out to manipulate the law to reach repugnant, illegal results that contravene the very ideals President Obama says must not be sacrificed.

It is not enough to say that when we have a president who does not believe in cruel and inhuman treatment and torture, the United States will not engage in such practices – while leaving open the possibility that if we again elect a president who does believe in such practices, they can be revived as a policy option. We must formally acknowledge that what was done was wrong, indeed criminal. At the very least, a credible independent investigation must be undertaken. The Convention Against Torture, which we have signed and ratified, demands nothing less wherever there is any evidence that persons within our jurisdiction inflicted cruel, inhuman, or degrading treatment on another human being. These memos are that evidence.

Prosecution Would Be Dangerous

Kori Schake

Kori Schake, a former national security adviser on defense issues to President George W. Bush, is a research fellow at the Hoover Institution and a professor of international security studies at the United States Military Academy at West Point, N.Y.

It seems to me that President Obama hit the balance about right in rejecting the use of those techniques and releasing the information, but acknowledging that the intelligence community was working on a very difficult problem and conducting the interrogations in good faith with the legal advice they were receiving.

What struck me most about the memos was that as late as August 2002, C.I.A. officials believed they were hearing “chatter” of the level and kind that proceeded the September 11th attacks. At that time, the country was still reeling from those attacks. The agency believed it had in custody enemies planning catastrophic terrorist attacks against our country and were urgently seeking information. The C.I.A. sought legal counsel and complied with the advice. Subjecting people to prosecution under those circumstances would be a dangerous politicization of difficult choices made by those serving our country.

Granting Immunity Makes Obama Complicit

Michael Ratner

Michael Ratner is president of the Center for Constitutional Rights and author of “The Prosecution of Donald Rumsfeld: A Prosecution by Book.”

Yes, it is good that President Obama ordered the release of four more of the torture memos issued by the Office of Legal Counsel during the Bush administration. The inhuman interrogation techniques those memos authorized which include waterboarding, walling (in which a person is slammed against a wall), confinement in a small box and sleep deprivation clearly constitute torture and other crimes under U.S. law. 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.

Since when did legal advice make torture into a lawful and permissible interrogation technique?

Yet President Obama goes out of his way to praise those who engaged in these unlawful practices and assures them they will not be prosecuted. In part, he asserts that the C.I.A. personnel were following, in good faith, legal advice. But since when did legal advice make torture into a lawful and permissible interrogation technique?

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.

Prosecuting those involved in the torture program, particularly the officials who conceived, authorized and ordered the torture program is not “retribution” or “laying blame for the past” as President Obama says. It is about insuring that we will not again become a nation that employs in torture. The prohibition on torture should not be dependent on who is president or on the stroke of a pen. We prosecute those who break laws to deter lawbreaking. President Obama, by granting impunity to torturers, becomes complicit with their actions. History will not judge him kindly.

No Harm, No Torture

David B. Rivkin

David B. Rivkin, a lawyer in Washington, was counsel of the President’s Council on Competitiveness at the White House under George H.W. Bush.

The release of these memos comes at a high price. By describing in great detail the most assertive set of interrogation techniques, that the United States has ever used — having determined them after a great deal of reflection and analysis to be legal — we have rendered them essentially unusable in the future. This is precisely because these techniques were not torture, did not feature brute force and worked primarily because of their psychological dimension. Now, having been exposed, these techniques would be studied by our enemies, who will then train their operatives to withstand them.

However, while this disclosure came at a great price, it also provides a great benefit. The memos are well-written, and feature careful and nuanced legal analysis. They weave together the facts and the law. They are grounded in real world experience, because nine out of 10 techniques, used against high-value detainees, were also used over a period of many years in SERE training courses, with thousands and thousands of American participants.

This data is analyzed in great detail to establish that the use of these techniques does not inflict either physical or psychological damage. The conclusions the memos reach — that the specific interrogation techniques used by the C.I.A. did not constitute torture — are eminently reasonable. To any fair-minded observer, these documents definitively establish that the Bush administration did not engage in torture. They go a long way toward rebutting shrill and unfair attacks on the integrity of Bush administration officials, and, more generally, on America’s honor.

Congress Knew All Along

Kenneth Anderson

Kenneth Anderson, a law professor at Washington College of Law, American University, is a research fellow of the Hoover Institution.

I do not minimize the seriousness of the interrogation techniques approved and used by the U.S. government. No one today, including me, would say that the techniques in the newly released memos were anything less than brutal and ugly. Today in 2009, when we are worried about the economy and not so much about the possibility of new terrorist attacks like that on Mumbai, many people now want to say that these techniques are obviously torture and so someone needs to be prosecuted for them.

But as the Washington Post reported in December, 2007:

Yet long before “waterboarding” entered the public discourse, the C.I.A. gave key legislative overseers about 30 private briefings, some of which included descriptions of that technique and other harsh interrogation methods, according to interviews with multiple U.S. officials with firsthand knowledge.

With one known exception, no formal objections were raised by the lawmakers briefed about the harsh methods during the two years in which waterboarding was employed, from 2002 to 2003, said Democrats and Republicans with direct knowledge of the matter.

Most prominent among those briefed on waterboarding was Nancy Pelosi. According to the Post’s interviews, members of the Congressional oversight committees understood that they had to weigh the limits of inhumane treatment of people known to have Al Qaeda connections against the threat of new attacks. They believed that these techniques struck the right balance in the circumstances. Yet I haven’t heard of any serious call for prosecuting Speaker Pelosi or any of her colleagues for complicity in torture.

Even today, with sizable Democratic majorities in both houses of Congress and a Democratic president, waterboarding is not specifically prohibited as torture under the criminal law. Such a law could be passed at any moment and signed by President Obama — and yet it has not happened. Why not? We could end the debate over what is acceptable and not, now and into the future, by explicit legislation on what constitutes criminal torture — indeed, Congress could do so by simply running through the list of techniques in the released memos. I believe that Congress should be forced to make hard political choices.

The costs to democratic society of not explicitly declaring as a matter of criminal law what is permissible and what is not are today far greater than the benefits of ambiguity. We are caught yet again, as Jack Goldsmith put it in “The Terror Presidency,” in the cycle of timidity and aggression. We condone aggressive techniques when the threat is perceived to be large enough, but then repent it later on, and propose to assuage our consciences afterward by going after those who did or approved those things.

Yet why are members of Congress who knew, and failed to object, any less complicit than the officials who designed, approved, or carried out the program? Neither Professor Cole nor Mr. Ratner mentions Congress’s oversight role in all of this.

The Obama administration has merely said the obvious about not prosecuting the C.I.A. line officers. You can’t change the rules of the game after the fact. You can’t prosecute those who relied in good faith on the legal conclusions of their superiors — and who knew that those superiors included senior members of Congress.

Comments are no longer being accepted.

http://www.slate.com/articles/news_and_politics/jurisprudence/2012/11/new_ruling_donald_rumsfeld_can_t_be_sued_for_torture.html

Why Donald Rumsfeld Can’t Be Sued for Torture

His latest and biggest court victory.

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Former Defense Secretary Donald Rumsfeld may not be sued by two U.S. citizens who were tortured by members of the military.The U.S. Court of Appeals for the 7th Circuit, which issued the decision, is the third appeals court to let Rumsfeld off the hook legally. But the 7th Circuit decision goes further than the others. By a vote of 7-4, its judges said that no member of our military—presumably even one who personally inflicts torture—can be sued for his related conduct in office.

The facts are a case study in system failure. Donald Vance and Nathan Ertel were Americans working for a private security firm in Iraq.When Vance became suspicious that hisemployer was selling weapons to groups hostile to the United States, he went to the FBI. Vance and Ertel were then fingered as arms dealers. Military personnel arrested them in 2006 and held them for several weeks.

According to the complaint, Vance and Ertel were held in solitary confinement and subjected to violence, sleep deprivation, extremes of temperature and sound, denial of food, water, and medical care, and other abuses. Though the Army Field Manual (and four judges) calls this torture, the majority opinion prefers the euphemism “harsh interrogation techniques.”

The majority and the dissents clashed over military accountability and the role of the judiciary. The starting point for both sides is Bivens, a 1971 Supreme Court case that allows a victim of a constitutional violation to sue a responsible federal officer for damages when no other law or court ruling gives them an entry into court. The majority argued that the Supreme Court has spent the last three decades reining in Bivens, and it thus cannot sanction Vance and Ertel’s “novel damages remedy” against military personnel. The dissenters attacked this entire mode of analysis: It is incorrect to say that Vance and Ertel are asking the court to create a right to seek damages, they argued, because Bivens already provides it.

The majority also read Supreme Court precedent to say that civilian courts should not “interfere with the military chain of command” without guidance from Congress. And here, Congress has addressed the rights of detainees in laws such as the Torture Victim Protection Act and has chosen not to provide for damages against military personnel. End of story. The dissenters respond by accusing the majority of converting a narrow rule—one that prevents military personnel from suing for injuries related to their service—into a sweeping rule that shields the military entirely from lawsuits by civilians. One telling and troubling point they make: In the 7th Circuit now (Illinois, Indiana, and Wisconsin), a victim of torture by a foreign militarywho finds his torturer in the United States has a remedy, but a U.S. citizen who is tortured by his own military does not.   

Katie Mesner-Hage is a recent graduate of Yale Law School.

==

==

https://en.wikipedia.org/wiki/Torture_Memos

A set of legal memoranda known as the "Torture Memos" were drafted by John Yoo as Deputy Assistant Attorney General of the United States and signed in August 2002 by Assistant Attorney General Jay S. Bybee, head of the Office of Legal Counsel of the United States Department of Justice. They advised the Central Intelligence Agency, the United States Department of Defense, and the president on the use of enhanced interrogation techniques: mental and physical torment and coercion such as prolonged sleep deprivation, binding in stress positions, and waterboarding, and stated that such acts, widely regarded as torture, might be legally permissible under an expansive interpretation of presidential authority during the "War on Terror".

Following accounts of the Abu Ghraib torture and prisoner abuse scandal in Iraq, one of the memos was leaked to the press in June 2004. Jack Goldsmith, then head of the Office of Legal Counsel, had already withdrawn the Yoo memos and advised agencies not to rely on them. After Goldsmith was forced to resign because of his objections, Attorney General Ashcroft issued a one paragraph opinion re-authorizing the use of torture.[1] Then in December 2004, another head of OLC reaffirmed the original legal opinions.

In May 2005, the CIA requested new legal opinions about the interrogation techniques it was using. The OLC issued three memos that month, signed by Steven G. Bradbury, ruling on the legality of the authorized techniques if agents followed certain constraints. In addition to these memos issued by the OLC to executive agencies, internal memos were written related to the use of torture in interrogation of detainees; for instance, in 2002 and 2003, Donald Rumsfeld, Secretary of Defense, signed several memos authorizing "Special Interrogation Plans" for specific detainees held at Guantanamo Bay in an attempt to gain more information from them.

All of these memoranda have been the focus of considerable controversy over executive power, government practices, and the treatment of detainees during the Bush administration. They were repudiated by President Barack Obama on January 22, 2009, shortly after he took office.

Contents

The Torture Memos

The term "torture memos" was originally used to refer to three documents prepared by the Office of Legal Counsel at the United States Department of Justice and signed in August 2002: "Standards of Conduct for Interrogation under 18 U.S.C. sections 2340-2340A" and "Interrogation of al Qaeda" (both drafted by Jay Bybee), and an untitled letter from John Yoo to Alberto Gonzales.

Since the initial revelation of these documents, other communications related to the use of torture to coerce or intimidate detainees during the Bush administration have been divulged. These include a December 2, 2002, internal Department of Defense memo signed by Donald Rumsfeld, then Secretary of Defense, authorizing 17 techniques in a "Special Interrogation Plan" to be used against the detainee Mohammed al-Qahtani;[2] a March 13, 2003, legal opinion written by John Yoo of the Office of Legal Counsel, DOJ, and issued to the General Counsel of Defense five days before the U.S. invasion of Iraq started, concluding that federal laws related to use of torture and other abuse did not apply to agents interrogating foreigners overseas;[3] and other DOD internal memos authorizing techniques for specific military interrogations of certain individual detainees.

In 2005, Alberto Gonzales testified before Congress that the CIA sought the 2002 opinion after having captured Abu Zubaydah in 2002, who was then believed to be a significant al-Qaeda figure who could provide important information to U.S. efforts to constrain and prevent terrorism.[4] They were anxious to get as much information from Zubaydah as fast as possible. Questions by CIA officers over which tactics could be used on the detainee had spurred writing the torture memo,[5] which is reflected in the language of the memo; "You have asked for this advice in the course of conducting interrogations of Abu Zubaydah."[6] The memo's author, John Yoo, acknowledged the memo authorized the "enhanced interrogation techniques" used by the CIA in Zubaydah's interrogation.[7] Yoo told an interviewer in 2007, "there was an urgency to decide so that valuable intelligence could be acquired from Abu Zubaydah, before further attacks could occur."[7]

Standards of Conduct for Interrogation under 18 U.S.C. sections 2340-2340A

Jay Bybee, author of the original "Torture memo"

Jay Bybee, then Assistant U.S. Attorney General and head of the OLC, addressed a memorandum to Alberto Gonzales,[8] then Counsel to the President, dated August 1, 2002, titled "Standards for Conduct for Interrogation under 18 U.S.C. 2340-2340A". He was responding to the president's reported request for a legal opinion on the U.N. Convention Against Torture and 18 U.S.C. section 2340 and the interrogation of al Qaeda operatives.[9]

This is the primary "torture memo", which defines the Department of Justice's (DOJ) interpretation of torture. It is relied upon heavily by the subsequent "torture memos". It discusses the language of the torture statute (18 U.S.C. sections 2340-2340A) in detail in order to derive its definition of torture, states that "cruel, inhuman, or degrading" treatment is not torture according to that statute; and examines "possible defenses that would negate any claim that certain interrogation methods violate the statute". It concludes that torture is only: extreme acts according to the Convention Against Torture; that severe pain (a requisite for this definition of torture) is "serious physical injury, such as organ failure, impairment of bodily function, or even death"; that prolonged mental harm is harm that must last for "months or even years"; that "prosecution under Section 2340A may be barred because enforcement of the statute would represent an unconstitutional infringement of the President's authority to conduct war"; and that "under the current circumstances, necessity or self-defense may justify interrogation methods that might violate Section 2340A."

Part I

...

==

Am Nuremberg book

am torture pgm mitchell and jessen FEAR pgm

hayden roderiguez haspell destroy tapes

https://kpfa.org/episode/letters-and-politics-march-19-2018/

==

==

Burr pulls report:

http://www.politico.com/story/2017/06/02/senate-torture-report-recall-justice-department-239077

The Justice Department’s copy of the famed “torture report” from the Senate Intelligence Committee, which extensively detailed the CIA’s Bush-era detention and interrogation tactics, doesn’t appear to be returning to the Senate anytime soon.

Sen. Dianne Feinstein (D-Calif.), who chaired the Intelligence Committee when the panel produced the report in 2014, said Friday that she has confirmed the CIA, its inspector general and the director of national intelligence have returned their copies of the torture report to the Senate. Her successor as the Intelligence chair, Sen. Richard Burr (R-N.C.), had asked the administration to return its copies to the Senate, where it could be blocked indefinitely from public view because Congress exempted itself from open records laws.

...

Yoo olin fellow

Collegiate Network on RW st papers; mock ebonics, knocked down shanty protest, cham and lob ~ hunger fast taped gay st mtg. Vassar  --> Jon karl ABC and marc Thiessen wapo defend torture 112.

mayer dark$

==

NERMEEN SHAIKH: So that’s Tillerson talking about the so-called war on drugs, in which thousands have been killed. Now, in your piece, Antonia, you talk about Exxon’s role in Aceh, Indonesia. Could you explain what Exxon is being accused of there?

ANTONIA JUHASZ: Yeah. Human rights was a big theme throughout the hearing, brought up by many, many senators. And, you know, as someone who’s spent a—you know, I’ve written three books about the oil industry. I’ve spent a lot of time studying ExxonMobil. To hear Rex Tillerson continually talk—and in that clip he didn’t, but he did mention, you know, the way that he—the ways that he would uphold human rights—was deeply disturbing, for one reason being this case that I highlight in my report, which is one of the more renowned because of the level of abuse, international human rights cases involving an oil company. And this is a case in which the complaint is actually now just getting ready to go before the U.S. District Court in Washington, D.C. They’re awaiting a trial date any day now. And this involves severe human rights abuses in Indonesia by security forces employed by ExxonMobil. And the complaint specifically names Rex Tillerson.

And what the charges are, they involve charges from 2000 to 2004 that ExxonMobil essentially, in the words of the complaint, privatized the Indonesian military to act as its own security force for its natural gas operations there. Aceh was in the midst of an independence movement. It was a violent and hectic independence movement. And ExxonMobil used a renowned-for-its-human-rights-abuse-record military to be its private security force. And in one of the cases, for example, John Doe number two—and they’re all John Does, because they’re all afraid for their lives—the person alleges that he was kidnapped by ExxonMobil’s private security forces. He was held for three months. He was severely tortured. He was shown a pile of human heads and warned that this is what was going to happen to him. He was eventually released, and then his home was burned down. But this is a case that involves charges of murder, sexual assault, you know, sort of the most horrific things you can imagine. And the case alleges that the decisions were being made to use this military force at the highest levels of ExxonMobil, in the executive level, at the—you know, not just in the subsidiary in Indonesia, but in corporate headquarters in the United States, and that the decision—even when it was known by executives that the Indonesian force was using these extreme human rights abuses, the decision was made to continue using that force and actually to intensify the use of that force.

And named in the complaint is Rex Tillerson in his role then as president of ExxonMobil, as someone who had met with Indonesian authorities.So this is a case that he, you know, I would imagine, at a minimum, is certainly aware of, and very important. You know, what ExxonMobil argues is not that the human rights abuses did not occur, but rather that it is not liable for them. And ExxonMobil stayed in Indonesia. You know, the only—the only thing that ended this conflict was the tsunami at the end of—in December 2004 that essentially wiped out Aceh. The ExxonMobil facility survived the tsunami. And so, ExxonMobil never chose to stop operating because of everything that was going on around it. It stayed. It stayed. It stayed. It stayed. And that is an example of choices made all around the world, where ExxonMobil has partnered with and propped up—right now in Angola, in Equatorial Guinea—worked with, propped up dictators, governments that are incredibly abusive to their people, so that they could get their oil. And that has been and continues to be the model that ExxonMobil follows.

AMY GOODMAN: Antonia, we want to thank you for being with us. Antonia Juhasz, oil and energy journalist, author of Black Tide: The Devastating Impact of the Gulf Oil Spill as well as The Tyranny of Oil: The World’s Most Powerful Industry—and What We Must Do to Stop It. We’ll link to your piece, "Rex Tillerson Could Be America’s Most Dangerous Secretary of State."

==

The Bush Six are six former officials of the United States government under the presidency of George W. Bush (2001–09) against whom criminal charges were filed in Spain in 2009 by Baltasar Garzón.[1][2][3][4][5][6][7][8][9] After appeal of lower court ruling that proceedings could move forward, Spain's National Court dismissed the case for lack of jurisdiction. In closing the investigation, Judge José de la Mata applied reforms to the universal jurisdiction law introduced by the current Conservative government that imposed new limits on the jurisdiction of Spanish courts that require that cases involve suspects who are Spanish citizens or are living in Spain.

Contents

History

In March 2009 Baltasar Garzón was asked to consider whether Spain should allow charges to be filed against:

Jane Mayer, writing in The New Yorker, reported that Philippe Sands had predicted that charges would be laid against the six men back in his 2008 book Torture Team. Mayer reported that after hearing news of the Spanish charges, Sands told her, "This is the end of these people’s professional reputations! This is no joke. We’re talking about the serious potential deprivation of liberty.”[4]

Scott Horton, writing in The Daily Beast, reported on April 13, 2009, that his sources said formal charges would be filed on April 14, 2009.[5][11][12] Horton reported that Garzón had been urged to allow another judge, Ismail Moreno, to conduct the case, because he was still involved in the possible prosecution of Spanish former Guantanamo captives. Paul Havens, reporting for the Associated Press reported that an unnamed source within the Spanish prosecutors office had told him that the charges would be filed during the week of April 14, 2009.[13] CNN, also quoting an unnamed source within the Spanish prosecutor's office, reported that charges were not expected for several days.[14]

==

historical of waterboarding (sen from koch pompeo 180 in cabinet hearing)

water boarding torture

https://en.wikipedia.org/wiki/Water_cure_(torture)

==

vn russo ellsberg

http://www.tomdispatch.com/blog/176004/tomgram%3A_barbara_myers%2C_the_unknown_whistleblower/

==

big report, no useful info

Salon [1] / By Heather Digby Parton [2]

The Torture Report’s Hidden Fiasco: How Mark Udall Revealed a Little-noticed Smoking Gun

December 11, 2014  |

After Sen. Mark Udall lost his seat last November a number of Americans, including yours truly [3], tried to persuade him to release the Torture Report on his own if it looked like the Intelligence Committee was going to lose its nerve. As we all know, the Executive Summary was released yesterday and was as explosive as many of us who’ve been following this story closely have known for a long time that it would be. Many of these details were known, of course, although some of them, like “rectal feedings” are uniquely awful. (Truthfully, some of that had been hinted at before as well.) Still, it’s an official document and that does make a difference.

So Sen. Udall was spared the risk of having to go to the floor to release a classified document that, in this environment, could have easily bought him some very unpleasant legal trouble. Yes, the Senate speech and debate clause is supposed to protect him. But anyone who counts on such things should have a chat with some of the whistle-blowers and reporters who’ve been harassed and persecuted by the government these last few years. These things are hardly clear-cut.

However, despite the risk, Udall did reveal some very important classified information anyway. And for inexplicable reasons, nobody seems to have noticed. I’m talking about information contained in the classified ”Panetta Review,” which was the document the CIA was allegedly looking for when it infiltrated the computers of the Senate staffers doing the investigation.

Udall called it a smoking gun. Here’s what he said:

The Panetta Review found that the CIA repeatedly provided inaccurate information to the Congress, the president, and the public on the efficacy of its coercive techniques. The Brennan Response, in contrast, continues to insist that the CIA’s interrogations produced unique intelligence that saved lives. Yet the Panetta Review identifies dozens of documents that include inaccurate information used to justify the use of torture – and indicates that the inaccuracies it identifies do not represent an exhaustive list.

The Panetta Review further describes how detainees provided intelligence prior to the use of torture against them. It describes how the CIA – contrary to its own representations – often tortured detainees before trying any other approach. It describes how the CIA tortured detainees even when less coercive methods were yielding intelligence. ThePanetta Reviewfurther identifies cases in which the CIA used coercive techniques when it had no basis for determining whether a detainee had critical intelligence at all. In other words, CIA personnel tortured detainees to confirm they didn’t have intelligence – not because they thought they did.

Considering the headlines being made around the world about the report, you’d think that the news media would be all over this. This report has been the subject of intense controversy inside the Beltway. Of course, it’s always possible that it implicates some of the very people to whom these media outlets are so eager to give endless hours of face time defending the agency’s tactics, so perhaps it’s something they’d rather not know. (It would make it harder to present a nice “he said/she-said” story line.)  It certainly implicates people like John Brennan, who Udall urged the president to fire along with every other CIA employee implicated in this horrifying episode.

This will not happen, needless to say, and Udall seemed to realize that when he issued a scathing indictment of the president as well. And it had to be said:

The White House has not led on this issue in the manner we expected when we heard the president’s campaign speeches in 2008 and read the executive order he issued in January 2009. To CIA employees in April 2009, President Obama said, “What makes the United States special, and what makes you special, is precisely the fact that we are willing to uphold our values and ideals even when it’s hard — not just when it’s easy; even when we are afraid and under threat – not just when it’s expedient to do so. That’s what makes us different.”

This tough, principled talk set an important tone for the beginning of his presidency. However, fast forward to this year, after so much has come to light about the CIA’s barbaric programs, and President Obama’s response was that we “crossed a line” as a nation, and that, quote, “hopefully, we don’t do it again in the future.”

That’s not good enough. We need to be better than that. There can be no cover-up. There can be no excuses. If there is no moral leadership from the White House helping the public understand that the CIA’s torture program wasn’t necessary and didn’t save lives or disrupt terrorist plots, then what’s to stop the next White House and CIA Director from supporting torture?

Absolutely nothing. Indeed, what this episode shows is that a Democratic White House engaged in a torture coverup and 95 percent of Republicans on record outright supporting it. Since there is impunity for having done it, why shouldn’t they? It’s nothing more than a policy debate now, one among so many, which breaks down upon the usual lines of hawks vs. doves (John McCain, a torture victim, being the anomalous outlier.)

The revelation of the Panetta Review might change that, however. Americans know that torture is immoral, but what we now know is that many people also just don’t care as long as it “gets the job done.” Udall says the Panetta Review agrees that it didn’t get the job done. That could actually mean something, even to the likes of Wolf Blitzer and many of the rest of the mainstream media, which seems intent upon allowing the CIA apologists to carry the day. We need to see that report.

[4] 

See more stories tagged with:

mark udall [6],

cia torture report [7],

Panetta Review [8],

john mccain [9],

Heather Digby Parton [10]

Source URL: http://www.alternet.org/news-amp-politics/torture-reports-hidden-fiasco-how-mark-udall-revealed-little-noticed-smoking-gun

Links:

[1] http://www.salon.com

[2] http://www.alternet.org/authors/heather-digby-parton

[3] http://www.salon.com/2014/11/10/mark_udalls_perfect_farewell_how_he_can_go_out_in_a_blaze_of_glory/

[4] http://www.salon.com/writer/heather_digby_parton/

[5] mailto:corrections@alternet.org?Subject=Typo on The Torture Report’s Hidden Fiasco: How Mark Udall Revealed a Little-noticed Smoking Gun

[6] http://www.alternet.org/tags/mark-udall

[7] http://www.alternet.org/tags/cia-torture-report

[8] http://www.alternet.org/tags/panetta-review

[9] http://www.alternet.org/tags/john-mccain

[10] http://www.alternet.org/tags/heather-digby-parton

[11] http://www.alternet.org/%2Bnew_src%2B

http://www.alternet.org/news-amp-politics/torture-reports-hidden-fiasco-how-mark-udall-revealed-little-noticed-smoking-gun

==

A U.S. appeals court has reinstated a lawsuit by four former Iraqi prisoners who say they were tortured with sexual violence, electrical shocks and beatings at Abu Ghraib prison. The lawsuit accuses employees of theprivate military contractorCACIInternational of ordering military staff to torture prisoners in order to weaken them for questioning. A federal judge dismissed the lawsuit last year, saying he did not have jurisdiction, but Monday’s decision reinstates the lawsuit and sends it back to that judge.

==

Office of Legal Counsel

Bybee served as the Assistant Attorney General for the Office of Legal Counsel (OLC) in the United States Justice Department from November 2001 to March 2003.[12][13]

Torture memos

Main article: Torture Memos

During Jay Bybee's tenure at the OLC, the CIA acting General Counsel John A. Rizzo requested a legal opinion on detainee interrogation. That request was routed to the OLC by the White House General Counsel Alberto Gonzales, who desired the "ability to quickly obtain information from captured terrorists and their sponsors."[14] The CIA inquired whether, after the terrorist attacks of September 11, 2001, it could aggressively interrogate suspected high-ranking Al-Qaeda members captured outside the United States in ways some regard as torture. In effect, the CIA was asking for an interpretation of the statutory term of "torture" as defined in 18 U.S.C. § 2340. That section implements, in part, the obligations of the United States under the Geneva Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.

Bybee signed that legal memorandum which endorsed "enhanced interrogation techniques" as lawful. These same techniques are viewed as torture by the Justice Department,[15] Amnesty International,[16] Human Rights Watch,[17] medical experts in the treatment of torture victims,[18][19] intelligence officials,[20] and American allies.[21] This memo has been the source of controversy; critics of his action have called for his impeachment or resignation.[22] Bybee and five others, known as the "Bush Six", were the subject of a war crimes investigation in Spain,[23] but the government decided against prosecution in 2011.

A memo declassified in 2012 indicates that some in the Bush State Department believed that the methods were illegal under domestic and international law, and constituted war crimes.[24] Secretary of State Colin Powell strongly opposed the invalidation of the Geneva Conventions,[25] and U.S. Navy general counsel Alberto Mora campaigned internally against what he saw as the "catastrophically poor legal reasoning" of the memo.[26] Philip D. Zelikow, former State Department adviser to Condoleezza Rice, in 2009 testified to the Senate Judiciary Committee studying the matter, "It seemed to me that the OLC interpretation of U.S. Constitutional Law in this area was strained and indefensible. I could not imagine any federal court in America agreeing that the entire CIA program could be conducted and it would not violate the American Constitution." Zelikow also alleged that Bush administration officials attempted to destroy his memos alleging fault in Bybee's reasoning.[27]

Office of Professional Responsibility investigation

In July 2009, after a five-year inquiry, the Office of Professional Responsibility released a report, later modified by the Justice Department, saying Jay Bybee and his deputy John Yoo committed "professional misconduct"[28] by providing legal advice that was in possible violation of international and federal laws on torture.[29][30] The OPR initial report recommended that both Bybee and Yoo be referred to the bar associations of the states where they were licensed for further disciplinary action and possible disbarment.[31] David Margolis, Associate Deputy Attorney General of the Department of Justice, examined the OPR report and wrote that Bybee and Yoo had used "poor judgement"[32] but did not "knowingly or recklessly provide incorrect legal advice or ... provide advice in bad faith."[33]

Federal judicial service

Bybee was first nominated to the United States Court of Appeals for the Ninth Circuit, the largest U.S. appellate court, on May 22, 2002. The Senate recessed for mid-term elections without acting on the nomination, which was "returned without action" in November 2002 under Senate Rule XXXI, Paragraph 6.[34]

President George W. Bush resubmitted his nomination on January 7, 2003. The Senate Judiciary Committee reported favorably on Bybee's nomination by a 12-6 vote (10 Republicans and 2 Democrats for, 6 Democrats against) in late February and forwarded the nomination to the full Senate for consideration.[35] Senate deliberations took place on March 13, 2003.[36] The Senate confirmed Bybee's nomination by a vote of 74-19 the same day.[37] Bybee received his commission on March 21, 2003. Justice Sandra Day O'Connor administered the oath of office at the United States Supreme Court building on March 28, 2003.[38]

Democratic Senator Charles Schumer noted that he supported Bybee's confirmation specifically because the judge's conservative views would help to moderate "the most liberal court in the country."[39]

Some critics decried his confirmation, calling Bybee "an extremist who takes an overly limited view of federal power" and criticizing his "narrow view of individual rights", including abortion and gay marriage.[40]

Bybee was confirmed in 2003, more than a year before news of his role in the torture memos was revealed.[41] According to Senator Patrick Leahy, "If the Bush administration and Mr. Bybee had told the truth," regarding Bybee's role in the Torture Memos, "he never would have been confirmed."[41]

Significant opinions

On January 13, 2005, in a 2-1 decision, Bybee wrote for the majority in United States v. Bruce. This case further refined the rules for defining whether or not an individual is a Native American or an American Indian. The current two-prong Rogers approach requires that the individual's degree of Indian blood as well as his tribal or government recognition as an Indian be taken into consideration. The Court concluded that Violet Bruce was an Indian.[42]