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Senate Panel Probes Legality of Torture Memos
NEW YORK - "An ethical train wreck" was the phrase used by one witness to describe the legal reasoning behind the Justice Department's recently released memos justifying the use of waterboarding and other forms of "enhanced interrogation techniques".
Richard Holbrooke, special representative for Afghanistan and Pakistan at the State Department, testifies before the Senate Foreign Relations Committee on Capitol Hill in Washington May 12, 2009 during a hearing on U.S. Strategy Toward Pakistan.
(REUTERS/Yuri Gripas) The phrase came during the testimony of David Luban, a law professor at Georgetown University, before a panel on administrative oversight and the courts subcommittee of the Senate Judiciary Committee Wednesday.
Sen. Sheldon Whitehouse, a Rhode Island Democrat, chaired the hearing. Whitehouse said the administration of former President George W. Bush inundated the U.S. public in a "near avalanche of falsehood" on the subject of detainee treatment.
"We were told that waterboarding was determined to be legal, but were not told how badly the law was ignored, bastardised and manipulated by the Department of Justice's Office of Legal Counsel, nor were we told how furiously government and military lawyers rejected the defective OLC opinions," Whitehouse said.
The panel also heard from Bush-era State Department counselor Philip Zelikow, who testified that he unsuccessfully dissented from the Justice Department view that harsh interrogation practices were either legal or moral.
He told the subcommittee - the first congressional panel to address allegations of torture - that Bush administration officials engaged in a "collective failure" on detention and interrogation of suspected terrorists.
He added that the issue was one that senior Bush administration officials did not wish to discuss. He told the panel that he was ordered to rescind a dissenting memorandum he had written on the interrogation issue and to find and destroy all copies of it.
Zelikow, who served as executive director of the 9/11 Committee that investigated the terrorist attacks of Sep. 11, 2001, said that Justice Department memos on "enhanced interrogation techniques" were "unsound, even unreasonable". He called for a "thorough public inquiry" into the issue.
"The U.S. government adopted an unprecedented programme of coolly calculated dehumanising abuse and physical torment to extract information," Zelikow said.
"This was a mistake, perhaps a disastrous one. It was a collective failure," he said.
The panel also heard from a retired special agent of the Federal Bureau of Investigation (FBI). Ali Soufan, who interrogated some suspected al Qaeda detainees in the U.S. embassy bombings in East Africa, testified from behind a screen to hide his identity.
Soufan said he gained valuable intelligence by using traditional non-coercive FBI interrogation techniques when questioning suspected al Qaeda prisoners.
He said he was replaced at the insistence of the Central Intelligence Agency (CIA), which he said was using inexperienced contractors, not CIA operatives, to conduct interrogations.
Soufan told senators that so-called enhanced interrogation techniques were ineffective and unreliable, and "as a result harmful to our efforts to defeat al Qaeda".
"It was one of the worst and most harmful decisions made in our efforts against al Qaeda," he said.
A cautious counterpoint was provided throughout the hearing by Senator Lindsey Graham, a conservative Republican from South Carolina, who has served for many years as a military lawyer in the U.S. Air Force Reserve.
Graham repeatedly made the point that those who pressed for more aggressive interrogation techniques were not "evil" people, but simply those who were trying to protect the country from the next terrorist attack.
He said it should come as no surprise that responsible lawyers can look at the same facts and come to honestly different conclusions.
Prof. Luban disagreed with that reasoning. He told the committee he thought it "impossible that lawyers of such great talent and intelligence could have written these memos in the good faith belief that they accurately state the law."
He added that Justice Department lawyers had a special responsibility not to "rubber stamp administration policies" or "provide cover for illegal actions".
Luban concluded that memos written by Justice Department lawyers in the Bush administration "cherry-picked" legal precedents and failed to consider or mention a 1983 case in which Texas law enforcement officers were prosecuted and jailed for waterboarding prisoners to make them confess.
"A legal adviser must use independent judgment and give candid, unvarnished advice," Luban said.
Three Bush-era lawyers, all working in the DOJ's Office of Legal Counsel, are the authors of a series of controversial memos recently released by the Obama administration. The so-called "torture memos" were written by JohnYoo, now a law professor in California, Jay Bybee, now a federal appeals court judge, and their successor in the office, Steven G. Bradbury.
The Office of Legal Counsel is the DOJ unit that provides the president and other senior government officials with definitive opinions on a wide range of issues. Its views traditionally carry great weight.
Wednesday's testimony came amid calls for these lawyers - and their superiors - to be criminally prosecuted, disbarred, or investigated in depth as part of a wider Congressional probe of former government officials and contractors for their activities during the Bush war on terror.
The chairman of the Senate Judiciary Committee, Sen. Patrick Leahy, a Vermont Democrat, has proposed a "truth commission" to investigate potential Bush-era war crimes. Others, including many human rights groups, have pressed for appointment of a special prosecutor by the Department of Justice.
An investigation is currently being carried out by the Senate Intelligence Committee. However, most of the testimony in that probe will be secret because of the classified material involved, and it will be many months before the investigation is completed.
President Obama's reaction to these and other approaches has ranged from lukewarm to ambivalent. While noting that "no one is above the law," he has said repeatedly that his inclination is to look forward, not backward.



26 Comments so far
Show AllEvery gutless, vile, punk that participated in the torture of another human being should be shot for treason. That is what our forefathers would have done and that is what we must do. I do not care if those that tortured were raised by people with the morals of a bush cheney or rumsfield all humans instinctively know that torture is a wrong.
Those sub-humans that ordered the torture for war-profiteering motives should be publicly executed. If not since each foul vile republican cabals is worst than the last, if those maddogs ever get elected again, we will all be subjected to torture, rape and murder at their pleasure.
Thank you very much for showing us what it takes to become a torturer.
Its just the idea of thinking that other human beings become less human (sub-human) because of things they did do or did not do.
You tell us this is necessary to "defend" the United States. In what way are your ideas different from the ones you are just talking about?
Lindsey Graham is an idiot and moral midget.
As Senator Leahy quipped several months ago, "Before we can turn the page, we must first read the page." I'm all in favor of looking forward. But people who committed crimes in the not-to-recent past (and particularly who, like Dick Cheney, boast about a necessity to keep torture and law breaking on the table as future government policy "options" when the political winds change direction) should not be permitted skate away into the sunset without accountability. Eric Holder should do his job.
Mr. Fisher's turn of phrase seems out of place, when it comes to describing Senator Lindsey Graham's partisan sniping at today's hearing. If Graham's rhetoric qualifies as "a cautious counterpoint" in the torture debate, then so does Dick Cheney's dark warnings and self righteous bombast from neo-con exile.
How refreshing it is that folks like professor David Luban, special agent Ali Soufan, and Philip Zelikow at last have a Congressional forum to speak out publicly about how Bush, Cheney, and their OLC lawyer enablers managed to secretly make torture official US government policy - despite the internal protests of a few brave insiders who sensed what was going on behind all the closed doors, smoke, and mirrors and tried to stop the train before the wreck.
Today's hearing was a cautious counterpoint to seven years' worth of shameful lawbreaking by men in high places who knew what they were doing was revolting and wrong.
Bill from Saginaw
Thanks for a comment worth reading. Having spent the past two days signing even more petitions, writing even more letters I came to this site today as a place of reinforcement, solidarity--not for name calling or progressive spin--you give me hope.
If no one is above the law then the Audacious Hoper is looking forward to the trials, not backwards at his lukewarm ambivalence.
If Obama decides; in spite of his oath to defend the Constitution; that investigating Crimes Against Humanity is just "looking backward".
Could this establish a legal precedent that would make any investigation of any crime moot?
Then every defense lawyer could use this.
And why not release every prisoner in the USA for the same reason.
Then we could close all the prisons, & fire all the prosecutors, judges and cops too. That would save some money!
our bought and paid for congress, will not throw themselves under the bus. plain and simple
It is quite obvious that there must be an INTERNATIONAL INQUIRY like the Nuremberg trials to deal with the U.S. torture issues.
Our Congress is not capable of dealing with any of it since they were so complicit (many of them). The "I didn't know" or "I didn't realize" explanation really doesn't make it.
And our new administration keeps dancing around trying to find some firm ground on which to plant their "we are a country of laws" flag.
Looking forward is not possible when the US has so much to answer for.
Ethical Trainwreck.
I'm proud to be a member of a profession which can so understate something of such moment. By the time an attorney gets to the ethics of this shituation, after pondering and weighing the printed rules and formal considerations of the legal profession, any lawyer interested in ethics at all would have had to forgo so much, that all the lawyers responsible for these torture rules, their interpretation and ambit, should be summarily disbarred. Pleadings of this nature would mark the end of many a federal trial lawyer's career in some jurisdictions -- the Judges would refuse them hearing and the court staff would all pretend they didn't exist! It's time the various state bars bared a few claws.
I know a fellow who resigned his position as Solicitor General, the job he'd dreamed of since childhood, because he was ordered to do something unethical. That sort of act requires that it be honored by becoming institutionalized aas the standard which is expected of Executive Branch lawyers. The scheme was in reality Contempt of Congress as in derrogation of the Separation of Powers.
And it probably describes how informed Pelosi was of the meaning of "waterboarding" or "extreme interrogation". That matter is an even stronger example of treading on the Seperation of Powers by certain officers of the Executive Branch.
"Graham repeatedly made the point that those who pressed for more aggressive interrogation techniques were not "evil" people, but simply those who were trying to protect the country from the next terrorist attack" The standard moronic ploy of bringing religion into the picture: good vs. evil. These are in the eye of the beholder, and outside of the realm of law and justice. A German age 89 has just been returned to Germany to face charges of participating in the killing of 1000's of Jews. Was he evil? Some would say Obviously! Others would say he has doing only what he was ordered to do (and if he disobeyed those orders he and his family would be killed). The US government has been 100% supportive of such trials, as well as of trials of those who participated in the torture known as water boarding during WWII. Ah, but lest I need be reminded, the US government is the cowboy in white. By definition he can do no wrong. Well, more and more of the rest of the world doesn't see it that way. And like Dirty Harry- if the law will not be applied to the criminal, there are those who have said 'enough is enough', and they will mete out their own form of justice. More and more, it is a justice that we brand as terrorism. They, of course, don't see it that way. The way they see it is that, given the limited capacity that they have, they act accordingly. The British claimed that the colonists were cowards since they fired their guns from behind trees and didn't position themselves in proper military fashion. The colonists reasoned that they simply didn't have the might to fight in that fashion. Yes, innocent people are killed when terrorists mete out their brand of justice. But the guilt for those deaths lies as much at the feet of spineless, self-serving, chicken-hawk sycophants in our Congress, Justice Department, and Executive branch as much as it lies at the feet of those terrorists.
Graham repeatedly made the point that those who pressed for eating babies were not "evil" people, but simply those who were trying to protect the country from massive food shortages.
"Graham repeatedly made the point that those who pressed for more aggressive interrogation techniques were not "evil" people, but simply those who were trying to protect the country from the next terrorist attack."
Ah yes. The path to Hell is paved with good intentions.
I'd say they were as much crimes as ethical lapses, and under US law, failure to prosecute is also a crime. Many of us were dumbfounded when Bush didn't issue a flurry of last-minute pardons to his co-conspirators, as his father had done. Furthermore, he and Cheney have been quite forthcoming about their guilt. So why all the confidence?
One needn't be a conspiracy buff to suspect that some sort of deal, a de facto pardon, was made.
Revenge Girl: is right, every criminal is in jail for a crime that happened in the past.
How disingenuous of Obama (who, by the way, happens to be a lawyer) to spout this nonsense of "looking forward." If that is the case, then why are we dragging a 80-year old nazi war criminal (John Demjanjuk) in diapers some 60 years after the fact. It's because all criminal prosecutions inherently look backwards. Moreover, Obama says the CIA torturers were just following orders and thus shouldn't be prosecuted. But, like the CIA agents (or their proxy contractors) this nazi war criminal was too "just following orders." And here we are 60 years after the fact charging him and deporting him back to Germany to face prosecution there (and rightly so). So why should we be told that in case of our torturers, we should look forward and move on. In that case, perhaps Obama is willing to pardon the 2 million people in our prisons(most of them for crimes much less heinous and damaging than torture and murder committed by the CIA agents).
Any and all of these government investigation have but one goal: to filibuster then drop any potential criminal charges against the former administration officials responsible.
I am extremely pleased that, unlike our stenographer press, Luban had the courage to stand up to Lindsay Graham's attempt to paint the unacceptable as necessary.
Now I'm going to say something that will piss a lot of you off.
But before I do let me agree with most people here that a full investigation, complete with a LOT of jail time, is needed for everyone at the top who took part in this attempt to make torture legal.
However, I actually do not think a formal investigation is a good idea right now.
What I do think is a good idea is a lot more of what we are seeing. More and more revelations of just what was done, and just how badly it sent America off into a black hole.
If an investigation begins all the Repugs and the complicit democrats can hide behind the shield of the on-going investigation and we will get a complete press black-out while that investigation runs. Meanwhile the Repugs and their complicit Democrate allies will work VERY HARD to slow that investigation to a crawl.
We need more of these revelations to keep coming out. We need them fresh in the minds of the people for the coming elections next year. We need everyone to know what we know, that it is likely the whole war in Iraq was started on the basis of what the Shrub called "information from enhanced interrogation techniques"...meaning they got confirmation from Al-Quaida operatives under torture that Saddam Hussein was involved so they could carry out Pearle and Feith's Project for a New American Century.
THEN we can have our investigation and our trials.
Bring America Back !!!!..........Yes, if we look backward to that 'ethics train wreck', we clearly see a boxcar chock full of Democratic fellow travelers--the enablers--those who were advised, briefed, and informed exactly what the Bush Crime syndicate was doing...!
**They raised not a whimper nor whisper to stop the Neocon anti=constitutional war crimes Train===a Global crash still being heard round the world !
**Pelosi; Harry Reid; Leahy; Graham; all knew well in advance and share equal culpability for the Train Wreck !
**Unfortunately, Prez Obama is not willing to clean out the
entire DC Culture of Corruption which includes a whole bunch of Boxcar Demmy Willies====the usual suspects.
We, who put Him in Office, lose again !!!!
"No man chooses evil because it is evil; he only mistakes it for happiness, the good he seeks."
---Mary Wollstonecraft
I take this to mean that if evil were eternal and omnipotent, there'd be no point in even trying to fight it.
But since what we call "evil" is simply the detritus of poor decisionmaking, then consistent, dispassionate trial and punishment must eventually improve the quality of decisions.
We can never know what a person's real intentions may have been. Therefore we're compelled to make judgements based on actions and their foreseeable results.
"However, most of the testimony in that probe will be secret because of the classified material involved, and it will be many months before the investigation is completed."
This is one way that the ruling class uses to cover up their evil ways from the people who actually pay for American imperialism - the people. In a real "democracy" the state shouldn't be able to classify material from inspection by the people in whose name it purports to act.
Sen. Graham's comments bring to mind Hannah Arendt's classic "The Banality of Evil," a reflection on Eichman at the time of his trial in Israel. Eichman was a lower-level concentration camp functionary, personally bland, whose defence was: "I was only following orders." The argument was rejected, as it had been an Nuremberg, and Eichman was hanged for his crimes. Copies of "The Banality of Evil" should be sent to the White House, Justice Department, and every member of Congress.
LeeAnnG
Does anyone else remember that, during the time when the first photos from Abu Graib were published, the Bush cabal and all their minions were claiming that it was just a "couple of bad apples" and this was not a systemic problem? Virtually everyone from the administration insisted they had nothing to do with this kind of treatment and that "we do not torture."
Now, suddenly, they admit that we do torture, but that it was done in the best interests of our country. Imagine if this had been a Democratic administration! The hatemongers would be having a big old time denouncing the evil, unconstitutional behavior of "liberals" and "traitors on the left."
Does anyone also remember the loudmouths like Bill Bennett wondering what we could possibly tell our children to help them understand the lies of then-President Clinton? Where, indeed, is the outrage now?
President Obama's reaction to these and other approaches has ranged from lukewarm to ambivalent. While noting that "no one is above the law," he has said repeatedly that his inclination is to look forward, not backward.
"Look forward" . . . straight up the horse's ass.
Yes, I know - the Congress' power, in part, lies in its ability to hold hearings. But the last time Congress held one that was effective was the Watergate hearings of 1972.
We've since seen hearings on domestic spying chaired by Senator Arlen Specter - going nowhere even as Alberto Gonzalez faltered and sweated and practically indicted the Bush administration by dodging simple questions.
We've had at least two partial attempts (one by Conyers and one by Kucinich) to call Bush to account for the Downing Street Memos, which showed that the Bushies planned to fabricate a reason to attack Iraq. (Anyway, Richard Clarke, Bush's former national security advisor, had earlier testified that Bush was just looking for a reason to attack Iraq.)
Much of the corruption of the Bush administration has been open for anyone to see. Bush admitted to illegal domestic spying, joked in front of the press about weapons of mass destruction that couldn't be found and talked with glee about extrajudicial killings. Former Veep Cheney still can't stop talking about the administration's embrace of torture tactics, even waterboarding.
I should be feeling good about these hearings, but so far, all we've seen is a process of delay, not justice, coming from Congress.
I'm also surprised to find Zelikow on the scene. He was the "minder" of the 911 Commission report's authors. I recall reading somewhere that he helped the Commission to reach the tepid conclusions that were published in the report. It's odd that he was also involved in policy discussions about torture, as implied in this story.
The story describes a perfect alibi for Zelikow:
"He [Zelikow] told the panel that he was ordered to rescind a dissenting memorandum he had written on the interrogation issue and to find and destroy all copies of it."
Now, that's an absolute defense, but it seems just a little too perfect. And Zelikow doesn't strike me as some sort of administration dissenter. I could be wrong on that, but something sure seems rotten here.
-TIA