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alberto gonzales
After 23 Years, It’s Time to End the War on Terror for Good
Isn’t it time to free the country up to focus on truly pressing national concerns instead of letting the aberrations of the past continue to haunt the present moment?
Oct 03, 2024
September marked the 23rd anniversary of al Qaeda’s 2001 attacks on the United States, which left nearly 3,000 people dead. For the two decades since then, I’ve been writing, often for TomDispatch, about the ways the American response to 9/11, which quickly came to be known as the Global War on Terror, or GWOT, changed this country. As I’ve explored in several books, in the name of that war, we transformed our institutions, privileged secrecy over transparency and accountability, side-stepped and even violated longstanding laws and constitutional principles, and basically tossed aside many of the norms that had guided us as a nation for two centuries-plus, opening the way for a country now in Trumpian-style difficulty at home.
Even today, more than two decades later, the question remains: Will the war on terror ever end?
Certainly, one might be inclined to answer in the affirmative following the recent unexpected endorsement of presidential candidate Kamala Harris by two leading members of the George W. Bush administration which, in response to those attacks, launched the GWOT. First, Bush’s vice president, Dick Cheney, who, after September 11, sought to take the country down the path to what he called “the dark side” and was a chief instigator of the misguided and fraudulently justified invasion of Iraq in 2003, endorsed Vice President Harris. Then, so did Alberto Gonzales who, while serving as White House counsel to George W. Bush and then as his attorney general, was intricately involved in crafting that administration’s grim torture policy. (You remember, of course, those “enhanced interrogation techniques.”) He was similarly involved in creating the overreaching surveillance policy designed and implemented during the first years of the war on terror.
Consider those surprising endorsements by former Bush war hawks a possible coda for the war on terror as a major factor in American politics. In fact, for almost a decade and a half now, there have been signs suggesting that the denouement of that war might be at hand (though it never quite was). Those markers included the May 2011 lethal raid on the hideout of al Qaeda leader Osama bin Laden; President Barack Obama’s December 2011 authorization for the “final” withdrawal of American troops from Iraq (though a cadre of 2,500 military personnel are stationed there presently and another 900 are in neighboring Syria). In August 2021, 10 years after the killing of bin Laden, the U.S. did finally exit, however disastrously, from its lost war in Afghanistan. And in 2022, a U.S. drone strike killed bin Laden’s successor, Ayman al-Zawahiri.
The counterterrorism measures have had an impact on the American threat environment. As reported in the Department of Homeland Security’s 2024 Homeland Threat Assessment, in 2022, “Only one attack in the United States was conducted by an individual inspired by a foreign terrorist organization” such as al Qaeda or ISIS.
Terrorism Prosecutions
Notably, prosecutions of alleged international terrorists have declined precipitously since the Bush administration years (and some of the convictions then have been reversed or altered). In a 2009 report, the Justice Department stated that, “since September 11, 2001, the Department has charged 512 individuals with terrorism or terrorism-related crimes and convicted or obtained guilty pleas in 319 terrorism-related and anti-terrorism cases.” Soon after that, however, the decline began. TRAC, a database that monitors such cases, reported that, in October 2014, “[t]here were no prosecutions recorded that involved international terrorism.” By 2022, TRAC was reporting that the number of domestic terrorism prosecutions far outnumbered international terrorism cases, due in large part to the charges leveled against those involved in the January 6th insurrection. And that trend has only continued. This year, as TRAC indicated, “Overall, the data show that convictions of this type are down 28.6 percent from levels reported in 2019.”
And when it comes to terrorism prosecutions, something unthinkable not so long ago has now happened. Several judges have recently given early release or simply overturned cases involving individuals convicted and sentenced in jihadi-inspired terrorism cases during the first decade of the war on terror. In July 2024, Eastern District of Virginia Judge Leonie Brinkema threw out 3 of 10 charges against and overturned a conviction carrying a life sentence for Ali Al-Timimi, a U.S.-born computational biology scholar sentenced in 2004 for soliciting treason by inspiring his followers to commit acts of violence abroad to defend Islam. Judge Brinkema reversed her decision following a 2019 U.S. Supreme Court decision that found the term “crime of violence” to be “unconstitutionally vague.” Al-Timimi’s fate on the other counts is now on appeal. Having been released to home confinement after the onset of the Covid-19 pandemic, he now no longer faces a life sentence, though, as The Associated Press reports, he could potentially see “decades of prison time beyond the 15 years he already served.”
Nor was this Brinkema’s first reversal in a terrorism case. In 2018, she ordered the release of two prisoners convicted in what was known as the Virginia “Paintball Jihad” case following two Supreme Court rulings that held the charges in those cases to be similarly unconstitutionally vague.
If only in acting to restore a balance between punishment and the law, even when it comes to post-9/11 terrorism cases, Judges MacMahon and Brinkema had set an example for others.
And Judge Brinkema was not alone in reviewing and reversing post-9/11 terrorism convictions. This year, in two controversial cases, judges reassessed rulings they had once made, releasing from prison those they had sentenced in the war on terror years. Judge Colleen MacMahon granted “compassionate release” to James Cromitie, after six months earlier ordering the release of his three codefendants, commonly referred to collectively as the “Newburgh Four.” At sentencing, MacMahon had indicated her disagreement with the initial outcome of the case which led to 25-year sentences for the defendants convicted on charges that involved plotting to bomb synagogues and shoot down American planes with stinger missiles, describing their crime as that of “allegedly planting ‘bombs’ that were packed with inert explosives supplied by the FBI.” She further chastised the FBI in her compassionate release ruling, claiming, “Nothing about the crimes of conviction was of defendants’ own making. The FBI invented the conspiracy, identified the targets, manufactured the ordnance, federalized what would otherwise have been a state crime…, and picked the day for the ‘mission.’”
Four years earlier, in late 2019, a federal judge in Lodi, California overturned the conviction of Hamid Hayat, convicted in 2006 for attending a terrorist training camp in Pakistan and plotting an attack on this country, on the grounds that his counsel had ineffectively assisted him. Following that vacated conviction, the National Security Division at the Department of Justice reviewed the case and decided against filing new charges concluding “that the passage of time and the interests of justice counsel against resurrecting this 15-year-old case.” Having served 14 years of a 24-year sentence, Hayat was released.
The “passage of time” in these cases had led to a rethinking of the uses of justice and law after 9/11. Sadly enough, it has not resulted in sunsetting two of the major initiatives of the war on terror—the authorization for the initial military response to the 9/11 attacks that led to this country’s disastrous military engagements in Afghanistan and elsewhere, and the creation of the Guantánamo Bay Detention Facility.
The 2001 AUMF
One glaring element of the war on terror that has defied any sense of ending is the 2001 Authorization for the Use of Military Force, or AUMF, passed by Congress in the days just after 9/11, which initially green-lit the invasion of Afghanistan. It’s still on the books.
Unlike prior authorizations for war, the 2001 authorization included no temporal limits, no geographical boundaries, and no named enemy. It was a classic blank check for launching attacks anywhere in the name of the war on terror and has indeed been used to justify attacks in dozens of countries throughout the Middle East and Africa, including against “unspecified organizations and individuals connected to international terrorism,” as a Council on Foreign Relations overview reports. As Georgetown professor Rosa Brooks has pointed out, the temporal open-endedness of that AUMF defied international law and norms in which “a state’s right to respond to an armed attack is clearly subject to some temporal limitations; it does not last indefinitely.” Or at least it shouldn’t.
Year after year, Congress has indeed considered sunsetting that 2001 AUMF, as well as the 2002 authorization for war in Iraq. After all, the landscape of international terrorism has changed vastly since the post-9/11 years. While the threat hasn’t disappeared, it has been transfigured. As the 2024 Annual Threat Assessment issued by the Office of the Director of National Intelligence points out, “While al Qaeda has reached an operational nadir in Afghanistan and Pakistan and ISIS has suffered cascading leadership losses in Iraq and Syria, regional affiliates will continue to expand.”
The war in Gaza has, of course, further changed the terrorism landscape. According to FBI Director Chris Wray, Hamas’ October 7th attack on Israel took the threat of foreign terrorism to “a whole ‘nother level.”
However, the 2001 authorization for the war on terror that remains in place is not an apt authorization for the new brand of terrorism or for the war in Gaza. It has so far made no difference that a 2022 National Security Strategy issued by the Biden White House pledged “to work with the Congress to replace outdated authorizations for the use of military force with a narrow and specific framework appropriate to ensure that we can continue to protect Americans from terrorist threats.” To date, no such narrowed framework has come into existence. And while Congress has repeatedly tried to sunset that piece of legislation, largely under the leadership of California Democratic Congresswoman Barbara Lee (the sole member of Congress who insightfully opposed it in 2001 on the grounds of its expansive overreach), such efforts have failed year after year after year. With Lee’s departure from office this coming January, the possibility of such a sunset will lose its most ardent proponent.
The Forever Prison
By far the most egregious relic of the war on terror is undoubtedly that forever war’s forever prison at Guantánamo Bay, Cuba. True, the number of detainees still held there—30—is down dramatically from the “roughly 780 detainees” in 2002. And 16 of those detainees have now been cleared for release (a review board having determined that they no longer pose a threat to the United States), while three remain in indefinite detention, and 11 others are in the military commissions system either facing charges or convicted. And true, President Joe Biden’s administration has made some progress in those commissions, arranging plea deals to resolve the cases of those who have been charged, as in that of two detainees who had been tortured and who pleaded guilty to charges related to terrorist bombings in Bali, Indonesia.
But whatever progress has been made during this administration, there have been two major setbacks.
First, early in the fall of 2023, the Biden administration reportedly arranged for the transfer of 11 Yemeni detainees to Oman. As The New York Times‘s Carol Rosenberg reported, thanks to Hamas’ October 7th attack on Israel, “A military cargo plane was already on the runway at Guantánamo Bay ready to airlift the group of Yemeni prisoners to Oman when the trip was called off.” Had that transfer occurred, the prison population would have dwindled to 19. But worries about a newly unstable Middle East left members of Congress uneasy and, according to Rosenberg, they expressed their concerns to the State Department and so succeeded in halting the transfer.
Twenty-three years later, there is arguably no greater reminder of both the need to put the war on terror behind us and an all-American inability to do so than the continued existence of Guantánamo.
In July, however, a momentous forward step did take place. Brigadier General Susan Escallier, the Pentagon’s Convening Authority for Guantánamo, the person in charge of the military commissions there, finally authorized a plea deal that had been in the works for years. It involved three of five defendants in that prison’s signature case, the prosecution of those accused of conspiring in and abetting the 9/11 attacks, including their alleged mastermind Khalid Sheikh Mohammed. The grim years of torture of those five codefendants at CIA “black sites” around the globe had long made it impossible to bring the case to court.
However, a deal was finally reached. As Chief Prosecutor Rear Admiral Aaron Rugh explained, “In exchange for the removal of the death penalty as a possible punishment, these three accused have agreed to plead guilty to all of the charged offenses, including the murder of the 2,976 people listed in the charge sheet.” Other parts of the agreement remain secret, but it still seemed like a huge step forward had been taken in bringing justice to the perpetrators of the 9/11 attacks. After endless pretrial hearings, filings, and motions—and no trial—there seemed at least to be a glimmer of light at the end of the tunnel. In the words of Sen. Dick Durbin (D-Ill.), the plea deal “was the best path forward to finality and justice.”
Unfortunately, only two days after the announced deal, Secretary of Defense Lloyd Austin mysteriously revoked it, issuing a two-page memorandum that managed to provide no explanation whatsoever for his decision.
Twenty-three years later, there is arguably no greater reminder of both the need to put the war on terror behind us and an all-American inability to do so than the continued existence of Guantánamo. There, at an estimated expense of more than $13 million per prisoner per year, judges and lawyers, many of whom favor plea deals, continue to play their roles as if a trial in the 9/11 case will ever be possible; as if the passage of time without resolution is an acceptable solution; and as if the example of indefinite detention, the use of torture, and a system that can’t adjudicate justice doesn’t continue to undermine the American promise of justice for all.
Moving Forward?
If only, in acting to restore a balance between punishment and the law, even when it comes to post-9/11 terrorism cases, Judges MacMahon and Brinkema had set an example for others. Certainly, at this truly late date, President Biden and Secretary of Defense Austin should have accepted—and should now reconsider and accept—the plea deal for those 9/11 co-defendants as a way of helping this country finally move past the 9/11 era and those endless, disastrous wars on terror. Isn’t it time to free the country up to focus on truly pressing national concerns instead of letting the aberrations of the past continue to haunt the present moment? Along these lines, perhaps it’s also the moment for Congress to sunset the 9/11 authorization for open-ended all-American global warfare.
Isn’t it truly time to move on from the war on terror’s lingering and painful legacy?
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How Guantanamo Set the Stage for the Kavanaugh Hearings
Justice derailed and the echoes of Gitmo
Oct 15, 2018
Amid the emotional hubbub over the predictable confirmation of Brett Kavanaugh, there has been a largely overlooked casualty: the American judiciary. It's not the end result alone -- his addition to the highest bench in the land where he will sit for life -- that promises to damage the country, but the unprofessional, procedurally irresponsible way his circus-like hearings were held that dealt a blow to the possibilities for justice in America, a blow from which it may prove hard to recover.
Senator Susan Collins acknowledged the damage the hearings wrought, even if she misunderstood the cause. Delivering her massively disappointing decision to vote yes on Kavanaugh, Collins reflected on what she saw as the passion that overrode the presumption of innocence and expressed "worry" that such behavior would lead to "a lack of public faith in the judiciary." Though wrong in blaming the Democrats for those passions, her conclusion was otherwise spot on. This confirmation has underscored and enhanced the fragility of justice in America, at least as a reflection of law, decency, honesty, transparency, and fairness.
Surprising as this derailment of justice might have seemed, it echoed (and may, in fact, have reflected) another long-unspooling twenty-first-century American degradation of justice. The proceedings created to try those terrorism suspects locked away in the offshore detention center at GuantanamoBay, Cuba, pivoted away from many of the country's legal and moral principles (a subject to which I'll return).
But as a prelude to understanding the harm that the Kavanaugh confirmation process caused, think for a moment about the fundamental premises underlying the Supreme Court and so the American judiciary. The Founding Fathers envisioned it as a body chaired by judges whose professional responsibility was, as Alexander Hamilton wrote in Federalist No. 78, to be "faithful guardians of the Constitution." Toward that end, the Court was to stand independent from politics and the other two branches of government. That idea of judicial independence was, in the oft-quoted words of Chief Justice William Rehnquist, "one of the crown jewels of our system of government."
It's apparent that both Kavanaugh and the committee before which he testified betrayed the goals of justice laid out in that foundational period by violating several major elements of judicial reasoning and procedure. In the process, they helped introduce Gitmo-style justice to the American legal system. Below are four ways in which the committee compromised longstanding aspects of American jurisprudence and justice.
A Quasi-Courtroom
Through it all, both supporters and opponents of Kavanaugh claimed that his congressional hearings did not constitute the equivalent of a courthouse. Not true. Throughout those proceedings, the Senate was, in fact, turned into a quasi-courthouse in which legislators could pick and choose just which kinds of procedures they cared to use, while conveniently banishing or ignoring others.
Think of those hearings as a conveniently watered-down version of a trial in which court procedures were invoked if they aided Kavanaugh, even as -- for anything that might have harmed him -- exceptions were made and regular procedures ignored. For example, Rachel Mitchell, the Arizona prosecutor appointed to question the judge and his accuser, Christine Blasey Ford, by the all-male Republicans on the commission eager to duck questioning a woman, would be a prosecutor in name only. Her time was curtailed to five minutes for each senator whose place she took and when it was Kavanaugh's turn, she was simply shoved aside by the same male senators eager to rant in his favor. Nor, of course, was there anything faintly resembling an impartial judge to oversee Mitchell's behavior (or anyone else's for that matter) or protect the witnesses, as there is in every courtroom in the United States. Such a mock courtroom both raised and violated not only the very idea of a fair trial but a fair process of any sort.
The Evidence, Missing in Action
One hoped-for result of a trial is the bringing of facts into the open so that justice can prevail. At no point in the Kavanaugh hearings was there even the semblance of an agreed upon set of facts, no less a coherent way to present them. Quite the opposite, they started and ended with a headlong dash away from the facts. Their undermining began in classic fashion when committee Republicans (in conjunction with the White House) agreed to withhold millions of documents relating to the judge and his work as a government lawyer in the White House during George W. Bush's presidency. In July 2001, he had been hired as an associate by White House Counsel Alberto Gonzales and, in 2003, he became assistant to the president and White House staff secretary where he may, among other things, have had a hand in the development of the Bush administration's war on terror policies.
And that was just how those hearings began. In addition, of course, when it came to Kavanaugh's seemingly grim record with women, the accusations of Deborah Ramirez and Julie Swetnick, publicly alleging inappropriate sexual behavior on his part, were ignored by the committee. Not a witness was called on the subject. Similarly, the bevy of statements that might have corroborated his exploits as a binge drinker in high school and college (as well as whether he ever blacked out from drunkenness) were tossed into the garbage pile of unexamined information.
A long overdue FBI investigation of charges against him, finally carried out at the request of Senator Jeff Flake (but under the watchful eye of the White House), proved a distinctly truncated affair that failed to seriously address the idea of establishing facts as a basis for decision-making. The FBI took the single week allotted to it, reportedly interviewed only nine witnesses, and issued a 46-page report. Compare this to a New Yorker magazine investigation of just the claims of Deborah Ramirez for which its journalists interviewed "between 50 and 100" people. As its co-author, award-winning investigative journalist Jane Mayer, commented, "The one thing I know from investigative reporting... the one thing that makes a difference is time. It takes a while to find the right people to talk to and to talk to them enough that you feel that you've gotten the truth from them and to find any kind of documentary evidence that you can. It just takes time." But time is precisely what the Judiciary and the White House did not allow.
And don't forget the importance of a perception of thoroughness and fairness. As former U.S. Attorney Preet Bharara put it, "[A]t the end of the day, if there is no further corroboration found with respect to these allegations, then Brett Kavanaugh gets confirmed to the bench. It will be better for him, it will be better for people's respect for the court, it will be better for people's respect of the process if they had done more rather than less..."
But a thorough investigation was obviously not what the powers-that-be wanted. As White House Counsel Don McGahn reportedly told the President, "a wide-ranging inquiry" into allegations about the judge's sexual misconduct would be "potentially disastrous."
Lack of Transparency
Consider the matter of transparency (or the lack of it) as a grim partner to the withholding, burying, or ignoring of evidence. Given a president who has himself dismissed transparency out of hand -- whether in terms of tax returns, election interference, or other subjects -- it should have been no surprise that the FBI's thoroughly inadequate report was not even made public. It was the equivalent of secret testimony. Nor are there evidently any plans to reveal its contents. That final act of secrecy only underscored the White House's defiance when it came to withholding the vast trove of documentation on Kavanaugh's time in the Bush White House. Senator Lindsey Graham caught the mood of the moment perfectly when he stated that he had no plans to read the FBI's report. It was obvious to him that the contents would be a foregone conclusion and that he could rely on others to tell him about it. Apparently, he already knew what he thought.
Lack of Accountability
How many times did we have to hear that the nominee should not be held accountable for what he did as a young man? But what about Kavanaugh's endless -- to put it politely -- misstatements of fact? As numerous media sites and tweets pointed out, he seemed to lie repeatedly during the hearings. "Senators on the Judiciary Committee had to know they were being lied to," wrote Eric Alterman of the Nation, "since the lies were continuously highlighted on Twitter." New York magazine's Jonathan Chait called the hearings a "farrago of evasions and outright lies." And Kavanaugh refused to give his stamp of approval to the FBI investigation, even as he was reportedly pursuing classmates behind the scenes to silence them about the allegations against him.
Had the committee cared to do anything about them, examples of his dissembling were abundantly obvious. He insisted, for instance, that he had not been an excessive drinker. Who cared that the New York Times published excerpts from a 1983 letter of his suggesting that the guests at a beach house where he and his friends were planning to party should "warn the neighbors that we're loud, obnoxious drunks with prolific pukers among us." So, too, Kavanaugh's college roommate, James Roche, attested to Kavanaugh's heavy drinking in those years. Yet another report mentioned Kavanaugh's involvement in passing around a girl for sex. He also insisted that he and Christine Blasey Ford, who accused him of sexually assaulting her, had not hung out in the same circles in high school, even though one of the friends he referred to on his list of "[brew]skis," dated her. And, of course, his on-the-spot definitions of the phrases "Devil's Triangle" and "boofed" in his high school yearbook as not relating to sex, seemingly obvious falsehoods, were never explored by the committee.
And so it went in those hearings, when it came to even a semblance of classic legal proceedings involving evidence, transparency, or accountability. Take, for instance, Kavanaugh's answers about his time in the Bush White House. He told the Judiciary Committee that he had not been part of any discussions about the detention policies of that administration, a category that included both Guantanamo and the administration's notorious "enhanced interrogation techniques." It's hard, however, to imagine him closing his eyes as memos that we know existed on detention, surveillance, and torture came across his desk on their way to his boss, White House Counsel Alberto Gonzales. In fact, as New Yorker correspondent Amy Davidson Sorkin has written, individuals then at the White House claim that Kavanaugh was in at least one heated debate over the way in which the Supreme Court would assess the administration's unprecedented detention policies.
As it happened, however, whenever they could, the committee's Republican majority chose never to hold him accountable for more or less anything and if, by chance, facts did come to light, despite multiple attempts to hide or suppress them, they were simply dismissed, often flippantly.
The Gitmo Template
For some of us, at least, this kind of denial of justice in America is nothing new. If you were following the war on terror all these years, such a wholesale willingness to compromise the very essence of justice has long seemed like a dangerous trend in clear view. Under the circumstances, it should have been no surprise that Brett Kavanaugh came out of the Bush White House and that the former president supported him vocally throughout the entire confirmation process.
In fact, Guantanamo could be said to have created the template for that quasi-courtroom in Washington and the various deviations from normal investigation, law, and procedure that it followed. For observers of that island prison, the Kavanaugh hearings ring an all-too-familiar bell. For nearly a decade and a half now, such quasi-courtrooms have been the essence of "justice" at that prison camp, as one sham hearing after another has been held. Periodic "reviews" of the very legitimacy of holding detainees in an offshore prison beyond the reach of American justice that had no analog in the American legal system -- Combatant Status Review Tribunals under George Bush and Periodic Review Boards under Barack Obama -- were introduced simply to justify the continued incarceration of prisoners there. The only goal of such hearings, it appeared, was to avoid the requirements of established protections on the U.S. mainland like due process.
Meanwhile, in Gitmo's military commissions, as in the Kavanaugh hearings, a central, impartial, independent authority was missing. They are overseen by judges without the power and command of those in the federal court system. Instead, as was true with the White House during the Kavanaugh hearings, the command influence of the Pentagon -- and at times the CIA -- has hovered over Gitmo's hearings from day one.
The credentials of the latest judge there, Marine Colonel Keith Parrella, named to the position in August, have only underscored aperpetual lack of regard for professional standards. Parrella, who has had no experience in capital cases, will be overseeing future hearings for the still-untried alleged co-conspirators of the September 11th attacks, who, 17 years later, face the death penalty. Nor has time been allotted, as the Miami Herald's Carol Rosenberg has pointed out, for the new judge to digest six years' worth of motions or 20,000 pages of transcripts. No matter. It's no more of a problem than not absorbing or dealing with the Kavanaugh evidence was to the White House or the Senate Judiciary Committee. Compromised professional standards and procedures, the calling card of Guantanamo's attempts to adjudicate justice, are now clearly making the move to the mainland.
Inside Gitmo's quasi-courtrooms, violations of longstanding procedure occur on a regular basis. For example, attorney-client privilege has been upended on numerous occasions over many years. Hidden government surveillance devices have been used to spy on detainee lawyers and their conversations with their clients, as in the case of Abd Al-Rahim al-Nashiri. So, too, the government urge to withhold witness testimony, apparent in the Kavanaugh hearings, echoes Guantanamo where the very idea of a fair trial has long seemed inconceivable to experts. As at the Judiciary Committee in recent weeks, excluded evidence has been a commonplace feature of Gitmo's military commissions. Lawyers for the detainees are regularly ignored in their attempts to present potentially crucial material, as in the case of Ammar al-Baluchi, especially when it relates to the torture and mistreatment of detainees while in custody.
Since President Trump took office, the military commissions system has only strengthened prohibitions that block the defendants' lawyers from access to witnesses and documents. This year, lawyers for the five detainees accused of conspiring in the attacks of 9/11 were informed that they had been prohibited from investigating the role that CIA officials and associates played in the brutal interrogation of their clients, testimony that is, they maintain, crucial to their defense strategies, particularly for the death penalty phase of the trial. In fact, at Gitmo, burying the facts has meant, in essence, burying prisoners alive. As defense attorney Joseph Margulies recently wrote about his client, Abu Zubaydah, who was waterboarded 83 times, the government has continually bypassed legal process, preferring to detain Zubaydah forever in silence rather than afford him a trial and the presentation of evidence.
As with all that repressed documentation on Kavanaugh's White House years, at Gitmo the government has regularly insisted on keeping facts secret. In this spirit, to keep the record clear of hard information about its torture practices, the CIA ordered the destruction of 92 tapes showing some of its grim interrogation sessions. (Even the 6,000-page Senate report on those interrogations has been classified and so largely kept from the public, while the Trump administration has tried to bury it further by rounding up existing copies from the agencies that had them in their possession.)
Without a proper judge, and minus valuable evidence, without any appetite for transparency or accountability, the Gitmo proceedings and the issues that haunt them have been reduced to a kind of invisibility. They are now sham events (just as the Kavanaugh hearings and investigation proved to be). Most of those paying attention have long since concluded that, as criminal defense attorney Joshua Dratel put it, "The reliability and legitimacy of verdicts is completely undermined by secret proceedings." So, too, may history judge Brett Kavanaugh's ascension to the bench in proceedings in which secrecy, as well as withheld or intentionally ignored evidence, prevailed.
The Constitution put a condition on the granting of lifetime positions to justices: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour." While the good behavior of now Supreme Court Justice Brett Kavanaugh will forever be in question, more important may be the wound that his confirmation hearings inflicted on an American belief in the possibility of justice in this country.
Guantanamo's tainting of justice should, from early on, have served as a warning. Instead, it seems to have become a template for "justice" in the nation's capital. The 2007 Manual for Military Commissions ominously included in its preamble the prediction that "this Manual will have an historic impact for our military and our country."
And so, as the Kavanaugh confirmation process suggests, it did. It's hard to imagine a more telling event than the rise to the Supreme Court of a White House lawyer present at the creation of many of those Gitmo policies. Under the circumstances, it should hardly surprise anyone that the road to his confirmation displayed many of the legal aberrations launched during the Bush era. As the Gitmo story illustrates, Brett Kavanaugh's confirmation was not the first nail in the coffin of justice in America -- and sadly, it's unlikely to be the last.
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We Know Brett Kavanaugh Has Lied Already
So as an illegitimate administration goes to work attacking the credibility of a brave woman recounting her assault, let’s recognize the enormously cynical hypocrisy: The nominee they’re desperate to protect is a calculated liar who uses dishonesty to advance his own career
Sep 18, 2018
This nation is suffering a significant breakdown of civility, bipartisanship and ethical behavior. For the Trump administration and the Republican leaders who enable it, truth is no longer a cherished value. To them, lying seems to be part of the strategy, a cynical weapon to be used against their opponents.
This week, we are witnessing the full depth of that cynicism, as the White House and its supporters smear a woman who makes credible, significant accusations of sexual assault against Supreme Court nominee Brett Kavanaugh. At the same time, another fact has become clear: Kavanaugh himself has a casual relationship with the truth -- and in that, he fits right in with the way President Donald Trump and his party behave.
Lying under oath cannot and must not be rewarded with a seat on the nation's highest court.
At the White House event announcing Kavanaugh's nomination, the appellate judge offered a remark that seemed odd. Praising Trump, he said, "No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination."
I personally found this hard to believe. How would Kavanaugh know that? Why would he be so sure and definitive about it? I did what we all do these days with the overwhelming list of lies coming out of this White House -- I figured that Republicans were all "in on it," that this comment would stand as just another obviously false spin in the process of getting another illegitimate seat on the Supreme Court for a conservative judge. But it turns out this was only a glimpse into the nominee's disturbing willingness to avoid the truth.
In fact, there's clear evidence showing that Kavanaugh lied under oath during the 2006 confirmation hearing for his spot on the U.S. Court of Appeals for the D.C. Circuit. I should know: I was one of the senators on the Judiciary Committee who questioned him.
I asked Kavanaugh about his involvement as White House staff secretary in the highly controversial 2001 nomination of Charles Pickering Sr. to the 5th Circuit. Many of us were concerned about a 1994 hate crimes case in which Pickering decided that a 25-year-old, who had participated with two others in a cross burning, was deserving of a reduced sentence.
During the Senate's consideration of Pickering's nomination, we had also learned that the federal trial judge solicited and collected letters of support from lawyers who had appeared in his courtroom, some of whom had cases still pending before him. This was a clear breach of judicial ethics, so I asked Kavanaugh about it:
Sen. Russ Feingold: My first question is this. Did you know that Judge Pickering planned to solicit letters of support in this manner before he did so? And if not, when did you become aware that Judge Pickering had solicited these letters of support?
Brett Kavanaugh: The answer to the first question, Senator, is no. This was not one of the judicial nominees that I was primarily handling.
But newly released emails show that Kavanaugh appeared to be the primary person handling Pickering's nomination, at least by 2003, and was heavily involved in pushing for his confirmation as early as March 2002. There are emails showing that Kavanaugh coordinated meetings with and about Pickering; that he drafted remarks, letters to people on the Hill and at least one op-ed for then-White House Counsel Alberto Gonzales about Pickering; that he advised Gonzales on Pickering strategy; and much more.
One Department of Justice official even asked for Kavanaugh's "blessings and instructions" before calling the nominee.
Others may have been involved, but Kavanaugh played a decisive leadership role in managing Pickering's nomination and then lied to me about it.
In another example, Kavanaugh had worked to advance multiple controversial judicial nominations from President George W. Bush during a time when a Republican Senate staffer named Manuel Miranda accessed and downloaded thousands of computer files belonging to Democratic senators. Because Kavanaugh could have been in receipt of the stolen documents, he was grilled by senators of both parties on the matter at his first confirmation hearing in 2004 and he denied any involvement.
But emails released this year show that Kavanaugh received material from numerous emails, draft letters and memos laying out the legal arguments Democrats were going to make regarding Bush's judicial nominees, including talking points written by a staffer to Sen. Patrick Leahy (D-Vt.). One email even had the subject line "Spying" on it. Kavanaugh not only received that message, which mentioned a "mole," but forwarded it to Gonzales. Leahy asked Kavanaugh about this regrettable episode in the 2004 confirmation hearing, and Kavanaugh's responses were both unsatisfying and evasive.
Taking all his testimony together, we see a clear pattern emerge: Brett Kavanaugh has never appeared under oath before the U.S. Senate without lying.
As a onetime member of the Senate Judiciary Committee, I considered the truthfulness of judicial nominees as a non-negotiable quality. Lying under oath cannot and must not be rewarded with a seat on the nation's highest court, and lies cannot remain unchallenged.
So as an illegitimate administration goes to work attacking the credibility of a brave woman recounting her assault, let's recognize the enormously cynical hypocrisy: The nominee they're desperate to protect is a calculated liar who uses dishonesty to advance his own career. And any denial of these accusations by Kavanaugh before the committee must be viewed in the context of his multiple earlier lies under oath to that same committee.
This nomination can and must be withdrawn. Nominees to the U.S. Supreme Court must be held to a higher standard, and it is the job of determined senators to do just that.
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Holding the Line on Torture
One organization at a time
Sep 10, 2018
Sometimes the good guys do win. That's what happened on August 8th in San Francisco when the Council of Representatives of the American Psychological Association (APA) decided to extend a policy keeping its members out of the U.S. detention center at Guantanamo Bay, Cuba.
The APA's decision is important -- and not just symbolically. Today we have a president who has promised to bring back torture and "load up" Guantanamo "with some bad dudes." When healing professionals refuse to work there, they are standing up for human rights and against torture.
It wasn't always so. In the early days of Guantanamo, military psychologists contributed to detainee interrogations there. It was for Guantanamo that Defense Secretary Donald Rumsfeld approved multiple torture methods, including among others excruciating stress positions, prolonged isolation, sensory deprivation, and enforced nudity. Military psychologists advised on which techniques would take advantage of the weaknesses of individual detainees. And it was two psychologists, one an APA member, who designed the CIA's whole "enhanced interrogation program."
Here's a disclaimer of sorts: ever since I witnessed the effects of U.S. torture policy firsthand in Central America in the 1980s, I've had a deep personal interest in American torture practices. In the aftermath of the 9/11 attacks, I wrote two books focused on the subject, the latest being American Nuremberg: The U.S. Officials Who Should Stand Trial for Post-9/11 War Crimes.
For a year and a half, I also served on a special ethics commission established by the APA after ugly revelations came out about how that organization's officials had, in the Bush years, maneuvered to allow its members to collude with the U.S. government in settings where torture was used. In fact, an independent review it commissioned in 2015 concluded that "some of the association's top officials, including its ethics director, sought to curry favor with Pentagon officials by seeking to keep the association's ethics policies in line with the Defense Department's interrogation policies." Indeed, those leaders colluded "with important DoD officials to have [the] APA issue loose, high-level ethical guidelines that did not constrain [the] DoD in any greater fashion than existing DoD interrogation guidelines."
In the wake of that independent review, the APA's Council of Representatives voted that same year to keep psychologists out of national security interrogation settings.
It's modestly encouraging that this August two-thirds of its governing body voted against a resolution that would have returned psychologists to sites like Gitmo.
What makes the new vote less than completely satisfying, however, is this: the 2015 vote establishing that policy was 157-to-1. This year, a third of the council was ready to send psychologists back to Guantanamo. Like much of the rest of Donald Trump's United States, the APA seems to be in the process of backsliding on torture.
The details of the parliamentary wrangling at the August meeting are undoubtedly of little interest to outsiders. The actual motion under consideration was important, however, because it would have rescinded part of the organization's historic 2015 decision, prohibiting its members from providing psychological treatment, as it put it,
at the Guantanamo Bay detention facility, 'black sites,' vessels in international waters, or sites where detainees are interrogated under foreign jurisdiction unless they are working directly for the persons being detained or for an independent third party working to protect human rights or providing treatment to military personnel.
Proponents of the new motion argued that keeping psychologists out of places like Guantanamo deprives detainees of much needed psychological treatment. If the association really cared about detainees, they claimed, it would not deny them the treatment they need.
Opponents argued that allowing psychologists to work at Guantanamo gives ethical cover to an illegal detention site where detainees are still being tortured with painful forced feedings, solitary confinement, and the hopelessness induced by indefinite detention without charges. It's worth noting that the military still refuses to allow the U.N.'s special rapporteur on torture to speak privately with detainees at Gitmo. In addition, at such a detention and interrogation site, any psychologist who was a member of, or employed by, the U.S. military would face an inevitable conflict of interest between the desires of his or her employers and the needs of detainee clients.
The 2015 resolution also prevented APA members from participating in national security interrogations, declaring that they
shall not conduct, supervise, be in the presence of, or otherwise assist any national security interrogations for any military or intelligence entities, including private contractors working on their behalf, nor advise on conditions of confinement insofar as these might facilitate such an interrogation.
Military psychologists within the APA were not happy in 2015 about being shut out of national security interrogations and they'd still like to see psychologists back in the interrogation business. This time around, they strategically chose to focus their rhetoric on treatment rather than interrogation. However, the long-term goals are clear. Indeed, in response to a request from those military psychologists, the APA's Committee on Legal Issues recommended to the board of directors "broadening" the resolution "to allow psychologists to be involved in the practice and policy of humane interrogation." The board declined -- this time, anyway.
Here's the problem with "humane interrogation": no one ever admits to using inhumane methods. Unfortunately, there's a recent and sordid history of U.S. officials claiming that torture is actually humane -- albeit "enhanced" -- interrogation. In the George W. Bush administration, John Woo and Jay Bybee, who worked in the Justice Department's Office of Legal Counsel, were among those who wrote memos justifying torture. As Bybee explained in an August 2002 memo to Attorney General Alberto Gonzales, "real" physical torture must involve pain similar to that experienced during "serious physical injury, such as organ failure, impairment of bodily function, or even death." And the effects of psychological interrogation must last "months or even years" to constitute mental torture -- obviously an impossible standard to meet, since no one knows for sure what will happen in the future. In that way, they essentially redefined any form of cruelty, including waterboarding, in any of the CIA's black sites then scattered around the world or at Guantanamo, as anything but torture.
As it happened, even as defined by the Bush administration, much of what was done in those years would have qualified as torture. Certainly, isolating people, depriving them of sleep, bombarding them with heat, cold, light, and endless loud noise, beating them, and providing them with no hope of eventual release were not exactly acts conducive to long-term mental health. In fact, in 2016 the New York Times interviewed several freed Guantanamo detainees, who reported that the effects of their abuse had indeed lasted "months or even years."
A Bit of History
The role of American psychologists in designing torture programs goes back at least to the 1950s, as historian Alfred McCoy documented so graphically in his book A Question of Torture: CIA Interrogation from the Cold War to the War on Terror. At that time, research psychologists at elite universities in the U.S. and Canada experimented on unwitting subjects -- including mental patients -- in an effort to develop techniques to produce a condition of compliancy in future prisoners, a condition that the CIA called "DDD" (for debility, dependency, and dread).
Much of this research culminated in that Agency's now-infamous 1963 KUBARK manual on interrogation, which the United States used to train the police and military forces of client states. That manual would be resurrected in 1983 and used in the CIA's training of the U.S.-backed Contras in Nicaragua's civil war. Many of the "enhanced interrogation techniques" that became so familiar to us in the George W. Bush years -- sensory bombardment, sleep deprivation, exposure to extremes of heat and cold, sexual humiliation -- were first laid out in that manual. But the CIA evidently misplaced it somewhere in their voluminous files because, after 9/11, instead of hauling it out yet again, they paid $80 million to two psychologists to reinvent the torture wheel. Those two, James Mitchell and Bruce Jessen, repackaged DDD as "learned helplessness" (borrowing a concept developed by another psychologist, Martin Seligman).
Seligman's role in developing the CIA torture program has been in dispute ever since. At most, he seems to have willingly discussed his theories with CIA personnel. In December 2001, he met at his home with both James Mitchell and Kirk Hubbard, who was then the chief of research and analysis in the CIA's Operational Division, among others. In 2002, at the invitation of CIA personnel, he lectured on learned helplessness at the Survival, Evasion, Resistance, and Escape school where U.S. military are trained to resist torture. Seligman claims he had no idea how his work was being used until "years later," when he read a New Yorker article by Jane Mayer (perhaps this one) about CIA torture practices in the post-9/11 era. "If I had known about the methods employed," says Seligman, "I would not have discussed learned helplessness with" Agency officials.
Mitchell and Jessen, however, had no such compunctions. They cheerfully designed an interrogation program for the CIA that included such "enhanced techniques" as slamming detainees against walls and locking them in tiny boxes. As no one is likely to forget, they also retrieved waterboarding from history. This practice had bluntly been called "the water torture" in Medieval Europe and American soldiers were using it in the Philippines, where it was referred to ironically as "the water cure," as the twentieth century began. To waterboard is essentially to drown a prisoner to the point of unconsciousness, a "technique" the CIA used 83 times on one man (who didn't even turn out to be an al-Qaeda leader). The whole program was implemented at CIA black sites in Afghanistan, Thailand, Poland, and Romania, among other places.
For part of this time, Mitchell was a member of the APA and so presumably subject to its code of ethics, which, theoretically at least, prohibited involvement in interrogations involving torture. When concerned APA members tried to bring an ethics claim against him to the group (whose only real sanction would have been to publicly expel him), they got nowhere. Eventually, Mitchell quietly resigned from the association.
Meanwhile, military psychologists were also working on interrogation matters for the Department of Defense. At Guantanamo, they participated in behavioral science control teams (BSCTs, pronounced "biscuits"). Despite the homey-sounding name, those BSCTs were anything but benign. Staffed by psychologists and psychiatrists, the teams, according to a 2005 New England Journal of Medicine op-ed by knowledgeable insiders, "prepared psychological profiles for use by interrogators; they also sat in on some interrogations, observed others from behind one-way mirrors, and offered feedback to interrogators."
Guantanamo's BSCTs, the Journal piece continues, favored an approach to behavioral control taught at the John F. Kennedy Special Warfare Center, which "builds on the premise that acute, uncontrollable stress erodes established behavior (e.g., resistance to questioning), creating opportunities to reshape behavior." This was to be achieved by introducing "stressors tailored to the psychological and cultural vulnerabilities of individual detainees (e.g., phobias, personality features, and religious beliefs)."
But where did the BSCTs get their information about the vulnerabilities of those individual detainees? The International Committee of the Red Cross discovered that it came from their medical records at the detention center, which, according to general medical ethics and the Geneva Conventions, are supposed to be kept confidential.
Those APA members who continue to argue for bringing military psychologists back to Guantanamo insist that it's possible to keep a firewall between their work as clinicians and the role of interrogator. But how realistic is this, especially within an organization like the military, where obedience and hierarchical loyalty are key values? As the New England Journal of Medicine concludes,
[The] proximity of health professionals to interrogation settings, even when they act as caregivers, carries risk. It may invite interrogators to be more aggressive, because they imagine that these professionals will set needed limits. The logic of caregiver involvement as a safeguard also risks pulling health professionals in ever more deeply. Once caregivers share information with interrogators, why should they refrain from giving advice about how to best use the data? Won't such advice better protect detainees, while furthering the intelligence-gathering mission? And if so, why not oversee isolation and sleep deprivation or monitor beatings to make sure nothing terrible happens?
Who Cares What the American Psychological Association Does?
When it comes to torture, why should the internal politics of one professional association with relatively little power matter? The answer is: because what happens there offers a vivid illustration of how organizations (or even entire nations) can be deformed once torture gains an institutional home.
And as in the APA, in the United States, too, the fight over torture has not ended. On the first day of his presidency, Barack Obama issued two executive orders. One de-authorized the use of those "enhanced interrogation techniques," and closed the CIA's black sites. The other was meant to shut Guantanamo as well (but the fervent opposition of most congressional Republicans ultimately prevented this).
Obama also argued that nothing would be "gained by spending our time and energy laying blame for the past." He couldn't have been more mistaken. Had America's elected officials spent their time and energy that way, those in George W. Bush's administration who authorized widespread acts of torture and those who committed them might have been held legally responsible -- which is exactly what the U.N. Convention Against Torture (of which the U.S. is a signatory) requires. As a nation, minimally we would have gotten a much fuller accounting of the many cruel and illegal acts committed in our names by top officials, intelligence agencies, and the military after September 11, 2001.
And had all of that happened, we might not be backsliding on torture the way we are. It's just possible that this country might not have elected a man who campaigned on the promise that he would bring back "waterboarding and a hell of a lot worse than waterboarding" and who, on entering the Oval Office, signed an executive order keeping Guantanamo open.
In addition, the Senate would probably not have approved Gina Haspel who oversaw a CIA black site in Thailand (where acts of torture did take place) to run the Agency. She might have been prosecuted, not promoted to CIA director. And perhaps the president wouldn't have nominated a Supreme Court justice, Brett Kavanaugh, who worked as staff secretary in the George W. Bush White House and was involved in detainee policy. The Washington Post reports that he attended more than one meeting on the treatment of detainees, suggested that they weren't entitled to legal counsel and strategized about how to keep the Supreme Court from granting them habeas corpus rights. Now, President Trump, citing "executive privilege," is even withholding 100,000 pages of records from Kavanaugh's service in the Bush White House -- and who knows what they might contain on the subject.
How Did They Do It?
What happened at the APA convention recently also matters because it illustrates the power of organized ethical action. Association members who were determined to keep psychologists out of the torture business formed the APA Watch: Alliance for an Ethical APA. They consulted thoughtfully with each other and allies (including Veterans for Peace), developed and distributed materials aimed at persuading APA members in general, and made personal phone calls to most of the 170 members of the association's governing Council of Representatives. They combined the wisdom and values of their profession -- including the all-important Hippocratic injunction not to harm one's patients -- with energetic, organized action.
It's an encouraging example for the rest of us, as we enter this crucial election cycle. When we're smart, committed, and organized, the good guys can win.
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Exactly 16 Years Ago, George W. Bush Opened the Floodgates to Torture at Guantanamo
So let's nip this idea that "Bush wasn't so bad" in the bud, shall we?
Feb 07, 2018
Since the terrible elevation of the grotesquely inadequate figure of Donald Trump to the position of President of the United States, there has been a bizarre propensity, on the part of those in the center and on the left of US political life, to seek to rehabilitate the previous Republican president, George W. Bush.
So let's nip this in the bud, shall we? Because unless you've been away from the planet for the last 20 years, you must be aware that it was George W. Bush who initiated the US's brutal and thoroughly counter-productive "war on terror" in the wake of the terrorist attacks of September 11, 2001, which involved authorizing the CIA to set up a secret detention and torture program, establishing a prison outside the law at Guantanamo Bay, Cuba, establishing deportation and surveillance programs within the US, invading one country (Afghanistan) in response to the attacks, where US troops remain to this day, despite having long ago "snatched defeat from the jaws of victory," as the author Anand Gopal once explained to me, and invading another country (Iraq) that had nothing to do with 9/11 or al-Qaeda, but which was nevertheless destroyed, along the way serving as the crucible for the creation of a newer threat, Daesh, or Islamic State, as it is more colloquial known in the West, a kind of turbo-charged reincarnation of al-Qaeda.
Today, February 7, is the 16th anniversary of one particularly sinister and misguided development in Bush's "war on terror" -- a memorandum, entitled, "Humane Treatment of Taliban and al Qaeda Detainees," which was sent to just a handful of recipients including Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, Secretary of State Colin Powell, Attorney General John Ashcroft, CIA director George Tenet, and General Richard B. Myers, the Chairman of the Joint Chiefs of Staff.
As I explained in an article marking the 10th anniversary of the issuing of the memorandum, in February 2012, on the day itself the only mention of it came from Andrew Cohen in the Atlantic, who reminded readers that the heading of the memo "was a cruel irony, an Orwellian bit of business, because what the memo authorized and directed was the formal abandonment of America's commitment to key provisions of the Geneva Convention. This was the day, a milestone on the road to Abu Ghraib, that marked our descent into torture -- the day, many would still say, that we lost part of our soul."
As I proceeded to explain in my article:
This is no exaggeration. Depriving prisoners seized in wartime of the protections of the Geneva Conventions was a huge and unprecedented step, and thoroughly alarming. And yet, despite criticism from Secretary of State Colin Powell, the administration pushed forward remorselessly towards the creation of an America that practiced arbitrary detention and torture.
Powell had been included in the paper trail that led to President Bush's memorandum of February 7, 2002, and he was particularly upset by a memo on January 25, 2002, signed by White House Counsel Alberto Gonzales, but written by Vice President Dick Cheney's legal counsel, David Addington, which claimed that the "new paradigm," which, it was claimed, the "war on terror" presented, "renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions."
In his memorandum, just two weeks later, President Bush declared that "none of the provisions of Geneva apply to our conflict with al-Qaeda in Afghanistan or elsewhere through the world, because, among other reasons, al-Qaeda is not a High Contracting Party to Geneva." He added, "I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al-Qaeda, al-Qaeda detainees also do not qualify as prisoners of war."
This was the rationale for holding prisoners neither as criminal suspects or as prisoners of war, but as a third category of human being, without any rights, which was disturbing enough, but it also paved the way for the use of torture, as people with no rights whatsoever had no protection against torture and abuse, and to this end the most alarming passage in the memorandum is the President's claim that "common Article 3 of Geneva does not apply to either al-Qaeda or Taliban detainees because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to 'armed conflict not of an international character.'"
President Bush claimed that the prisoners would be "treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva," but it was a meaningless addition. By refusing to accept that everyone seized in wartime must be protected from torture and abuse, and by removing the protections of common Article 3 from the prisoners, which prohibit "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment," President Bush opened the floodgates to the torture programs that were subsequently developed, both for use by the CIA, and at Guantanamo.
16 years on, February 7, 2002 remains a grim day in the modern American calendar, and one that, I think, should be marked every year, along with other key dates -- August 1, 2002, for example, when the "torture memos," seeking to redefine torture so that it could be used by the CIA, were issued by the Justice Department's Office of Legal Counsel, written by John Yoo and approved by his boss, Jay Bybee, and December 2, 2002, when Donald Rumsfeld approved his own specific torture program for use at Guantanamo, which was initially intended for use on just one prisoner, Mohammed al-Qahtani, but which ended up being used on one in six of the prisoners, according to a former interrogator who spoke to Neil A. Lewis for a New York Times article in January 2005.
It is also important to remember that the torture and abuse that Bush unleashed in his memo of February 7, 2002 remained US policy for nearly four and half years, until the Supreme Court reminded the president, in Hamden v. Rumseld, on June 29, 2006, that Common Article 3 of the Geneva Conventions apply to all prisoners held by the US, whatever their location (theoretically, Common Article 3 was reinstated in the Detainee Treatment Act of 2005, but critics have suggested that that legislation, introduced by John McCain, had numerous loopholes that sidestepped its intended prohibition on the use of torture). Within three months of Hamdan v. Rumsfeld, on the other hand, demonstrating the Supreme Court's influence, Bush emptied the CIA's "black sites," bringing 14 "high-value detainees" to Guantanamo, where all but one of them remain to this day.
That wasn't quite the end of the US torture program, as a handful of other "high-value detainees" eventually washed up at Guantanamo, and, as Jeffrey Kaye in particular has noted, torture techniques remain in the Army Field Manual despite the fact that President Obama issued an executive order banning the use of torture when he took office in January 2009.
Significantly, in December 2014, a major step was taken against the use of torture, when the Senate Intelligence Committee issued the 500-page executive summary of a scathing 6,200-page report about both the brutality and the pointlessness of the CIA's torture program. Stung by this, almost the entire US establishment turned on Donald Trump when, during his first weeks in office, a draft executive order was leaked indicating that he wanted to revive the use of torture and of CIA "black sites."
That said, torture is less of an option than it used to be, as, under Barack Obama, the US moved away from the messy business of detention, embracing assassinations instead -- through drone attacks, which are, to be frank, as legally dubious as the Bush administration's rendition and torture program was. With hindsight, the immediate aftermath of the 9/11 attacks was a time when, as it was throughout the Clinton years, assassination had fallen out of favor, but it is now back with a vengeance, and the drone program is being enthusiastically pursued by Donald Trump.
And while it remains significant that Donald Trump seems to be getting away with his enthusiasm for killing people in drone attacks, it is also worth remembering, on this baleful anniversary, that, when it comes to torture, although the US establishment has generally retreated from endorsing its use (through recognizing how close they came to prosecutions, if not because of their recognition of the uselessness of torture), the US public, through shows like '24' and films like the disgraceful 'Zero Dark Thirty,' is not so well-informed.
As Donald Trump took office, 48% of Americans said that "there are some circumstances under which the use of torture is acceptable in US anti-terrorism efforts." Encouragingly, 49% disagreed, but it remains, i believe, a sign of the enduring power of the Bush administration's bellicose pro-torture maneuverings in the wake of the 9/11 attacks that torture remains so popular, just as, with Guantanamo, the dark propaganda of the priosn's early days -- as a place which, allegedly held "the worst of the worst" -- has proven alarmingly durable, despite relentless efforts by campaigners, myself included, to demonstrate its almost complete groundlessness.
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Trump's War on Voters Has a Long History: We Need a Grassroots Voting-Rights Movement to Fight Back
Trump and his minions have ramped up the attack, but the "voter fraud" myth goes back to the GOP's attack on ACORN
Aug 08, 2017
Donald Trump's war on voting rights, like much of his behavior, is rooted in revenge. After the November election, Trump tweeted that he lost the popular vote because 3 million to 5 million "illegals" fraudulently voted for Hillary Clinton. According to Trump, an unprecedented and truly astonishing amount of fraud was committed in the 2016 election -- and no officials noticed. Without any evidence, he's repeated accusations that nefarious groups organized non-citizens, dead people, and citizens registered in multiple states to engage in a huge voting scandal. He has even set up a commission - which held its first public meeting last month -- to scour the country looking for evidence of illegal voting.
Trump's efforts are rooted in his own need to avoid humiliation, but voter suppression is nothing new for the Republican Party. It has long been a key part of its strategy to reduce turnout among poor, minority and younger voters who, when they vote, tend to support Democratic candidates. Like other Republicans before him, Trump justifies the war by promoting the myth of widespread "voter fraud."
Voter fraud is not a problem, as academic researchers have shown over and over. The Brennan Center for Justice at New York University examined every federal election between 2000 and 2015. More than a billion votes had been cast over that period. The researchers found only 31 examples of voter fraud.
Yet the canard of "voter fraud" persists on the right. Rather than focus on protecting our voting system from Russian hackers, or proposing ways to increase voter turnout, Trump's Presidential Advisory Commission on Election Integrity is going on a wild goose chase to protect us from nonexistent fraudulent voters. This is little more than a smokescreen to justify more voter suppression laws. Trump's commission is part of a larger strategy to reshape the electorate to ensure Republican domination.
All myths have an origin story. The Republican-sponsored voter fraud myth gained momentum in the early 2000s as an attack on ACORN, a community organizing group that was engaged in a bold voter registration drive among low-income, mostly minority, voters in cities and swing states like Florida and New Mexico.
To thwart ACORN's efforts, Karl Rove - George W. Bush's key political operative - led a campaign to destroy the group's reputation by accusing it of voter fraud. In 2005, for example, Attorney General Alberto Gonzales ordered David Iglesias, the U.S. attorney in New Mexico and a Republican, to investigate ACORN for voter registration violations. After Iglesias' probe came up empty-handed, Gonzales fired him. Then Bush and Rove escalated the campaign to persuade Americans that extensive voter fraud was a serious problem and required strict new laws to make registration more difficult. By doing so, they hoped not only to stop ACORN but also to intimidate other groups, like the League of Women Voters, from registering new voters.
During the 2008 election season, ACORN registered more than 800,000 young, poor and minority voters. A handful of ACORN's 13,000 part-time canvassers faked voter registration forms to get paid for work they didn't do. ACORN immediately informed local election officials when it discovered the counterfeit signatures, as the group was required to do by law.
As revealed in a new documentary film, "ACORN and the Firestorm," Republicans and their allies in the right-wing media (Fox News, Rush Limbaugh, Glenn Beck and others) jumped on those small morsels of information to accuse ACORN of being part of a criminal conspiracy.
Soon the controversy shifted from the fringe to the mainstream. It peaked in October 2008 during a televised presidential debate between John McCain and Barack Obama. Before millions of viewers, McCain warned that ACORN, whom he linked to Obama, "is now on the verge of maybe perpetrating one of the greatest frauds in voter history in this country." This modest community-based organization, the Arizona senator warned, may be "destroying the fabric of democracy."
The attack worked. Even some Democrats in Congress refused to come to ACORN's defense. Numerous independent investigations cleared ACORN of any criminal wrongdoing, but they were too late. By the next year, ACORN was dismantled after its foundation funders withdrew their support.
After ACORN was gone, however, Republicans continued their war on alleged voter fraud and even kept using ACORN as their bogeyman. In 2012, half of GOP voters said they believed that ACORN stole that year's election for President Obama, even though the group no longer existed. Earlier this year, Rep. Marsha Blackburn, R-Tenn., told CNN that ACORN was one of the reasons Trump needed a task force to investigate voter fraud.
In May, Trump appointed Vice President Mike Pence and Kansas Secretary of State Kris Kobach to head the so-called "voter integrity" commission, designed as a fishing expedition to find widespread voter fraud. Trump packed the commission with staunch right-wingers - including Hans von Spakovsky of the Heritage Foundation and J. Christian Adams, a Republican election lawyer and former Department of Justice official in the Bush administration - who have voiced strong support for restricting voting rights.
At the commission's opening session in July, Kobach claimed that voter fraud was widespread across the country and even in his home state. He began making that accusation when he ran for his current office in 2010, insisting that as many as 2,000 people adopted the identities of dead people to vote in Kansas. That state's secretary of state at the time -- Ron Thornburgh, a Republican who served in that position for 16 years - said that "the voter fraud Kris Kobach speaks of does not exist." But Kobach kept repeating his lie, even announcing that he'd found a smoking gun. He claimed that someone had cast a ballot in the August primary using the name of a dead man named Alfred K. Brewer. It didn't take long for reporters to find the 78-year old Brewer in his yard, raking leaves. Kobach had confused Brewer with his father, who hadn't voted since he died in 1996.
Kobach has been a staunch advocate of employing discriminatory tactics to infringe upon the rights of voters. Since he was elected Kansas' secretary of state, he has run a program in which his office has collected tens of millions of voting records from other states in search of duplicate registrations and double votes. The list-matching exercise has turned up practically nothing. Kobach has charged just nine people, most of them senior citizens, with voting in Kansas and another state. Six have pleaded guilty, one case was dismissed and two are pending.
In late July, a federal judge upheld a $1,000 fine against Kobach, citing a "pattern" of "misleading the Court" in voter ID cases.
Despite this setback, Kobach hopes to use the commission to get Republican state election officials to purge the voting rolls of Democratic-leaning voters - poor, young and minority Americans. They will have the support of Attorney General Jeff Sessions, who as U.S. attorney in Alabama brought a baseless prosecution against voting rights activists, which soon fell apart.
In early July, Kobach sent a letter to all 50 states requesting information on their voter rolls, including voters' names, their birthdays, the last four digits of their Social Security numbers and their voting history dating back to 2006. That request drew strong pushback from more than two dozen secretaries of state, including a few Republicans, who said they would not cooperate with the commission.
"They can go jump in the Gulf of Mexico," Mississippi Secretary of State Delbert Hosemann, a Republican, said about the commission. "Given Secretary Kobach's lengthy record of illegally disenfranchising eligible voters in Kansas," said Connecticut Secretary of State Denise Merrill, a Democrat, "we find it very difficult to have confidence in the work of this commission."
The resistance of these state officials, as well as pending lawsuits against the commission by the ACLU, Public Citizen, the NAACP Legal Defense and Educational Fund, the Lawyers Committee for Civil Rights, Common Cause and the Electronic Privacy Information Center, may stop Trump's panel from pursuing the voter purge. But its efforts have already caused considerable damage. Soon after Kobach requested the voter data, election officials in North Carolina, Florida, Arizona, Colorado and several other states saw an upsurge of voters asking to de-register, fearing the misuse of their personal information.
"In over 12 years of administering elections I never expected to see a day in the office where we would have more withdrawals than new registrations," Amber McReynolds, Denver's director of elections, told The Colorado Independent.
The real goal of Trump's commission, of course, is not to uncover voter fraud but to promote voter suppression. Trump wants to encourage more states to make it harder to vote through a variety of measures: adopting laws to cut back on early voting days and hours, eliminating same-day registration, restricting the use of absentee ballots by first-time voters, making it harder for people with past criminal convictions to regain their voting rights and creating roadblocks for nonprofit groups that seek to conduct voter registration drives.
Since the 2010 elections, 20 states have adopted new voter suppression laws. Last November, for example, turnout among black voters plunged in North Carolina after Republicans cut early voting hours and reduced the number of polling places.
Wisconsin was one of 14 states with new voting restrictions in effect for the first time in 2016. In that state, Trump beat Clinton by a mere 22,748 votes out of more than 2.9 million votes cast. Statewide, Trump received about the same number of voters as Mitt Romney had in 2012, but Clinton received almost 240,000 fewer votes than Barack Obama did that year. The statewide decline in voter turnout was particularly devastating in Democratic strongholds.
In 2011, Republican Gov. Scott Walker and the GOP-dominated state legislature adopted tougher voter-registration laws, including a requirement that voters provide a photo ID to vote. About 300,000 registered voters were disqualified from voting for lack of strict forms of ID. This had a particularly chilling effect in Milwaukee, the state's largest city, which has a large African-American and low-income population. According to Neil Albrecht, the Milwaukee Election Commission's executive director, voter turnout in that city declined by 41,000 people between 2012 and 2016, with most of the drop-off coming in high-poverty districts.
Last month, a delegation of faith-based human rights activists, led by Rev. William Barber, national president of Repairers of the Breach and founder of North Carolina's Moral Monday movement, met with United Nations human rights chief Zeid Ra'ad to discuss voter suppression efforts targeting African-Americans and low-income voters in the United States. The activists said that the voter suppression crusade violates the UN's Universal Declaration of Human Rights.
"Enfranchisement is essential to human freedom and dignity," said Rev. Barber, who has led protests against North Carolina's voter suppression laws. "To deny citizens' right to vote is to deny their full humanity. Too many people have bled and died in America's long fight for voting rights. Their blood cries out against this evil."
The U.S. already has the lowest level of voter turnout of any democracy in the world. Compared to other countries, America's crazy-quilt voting laws already make it difficult to register and to vote. In last November's presidential elections, about 40 percent of all eligible voters - 93 million citizens -- didn't vote.
This right-wing effort to undermine our democracy is gaining traction just as a new Pew Research Center survey found that most Americans think it should be easier, not harder, to vote.
Voter reform laws can make a big difference. The 15 states that allow voters to register on Election Day have higher levels of voter turnout, according to a report by Nonprofit Vote and the U.S. Elections Project. The six states with the highest turnout in 2016 -- Minnesota, Maine, New Hampshire, Colorado, Wisconsin, and Iowa - permit same-day voter registration. Experts on voter turnout also advocate other measures to increase voting, such as allowing voters to register and vote online, changing the traditional Tuesday Election Day to Election Weekend (which would run from Friday through Sunday) and turning Election Day into a national holiday, as many other countries already do.
But strengthening our voting laws won't happen overnight. Even without these reforms, Democrats have an opportunity to regain a majority in the House of Representatives in 2018 and to take back the Senate and White House in 2020. But to do so, they need to resist the GOP's ongoing efforts to suppress the vote (justified by the bogus claim of voter fraud) and mobilize infrequent low-income voters to cast ballots.
If they want to expand voting, Democrats cannot simply depend on expensive slick ads to get people to the polls. They must partner with local community groups in urban and suburban areas, particularly Latino and African-American neighborhoods, to organize people year-round by going door-to-door to engage them in local issue campaigns - whether that means raising the minimum wage, stopping oil and gas companies from locating toxic facilities in their communities, challenging racial profiling by police, improving local schools, stopping banks and landlords from illegally evicting families from their homes and others. It isn't enough to parachute organizers into these areas a few months before Election Day. It takes time to build trust and energize the social networks that give people a sense that elections matter and can improve their lives.
ACORN understood that. It organized people around housing, jobs, lending discrimination, public safety and other issues. When election time came around, ACORN had built an ethic of civic engagement among people who might otherwise feel alienated from politics. ACORN's voter registration and turnout efforts were highly successful -- until it ran into the Republican buzzsaw.
Can Democrats and progressives learn from that experience? We need a new wave of grassroots organizing to protect democracy's core principle - the right to vote.
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What Trump Doesn't Get: Sessions Recusal from Russia Probe was Mandatory
Attorney General Jeff Sessions' recusal from the Justice Department's Trump-Russia investigation is necessary to ensure it proceeds with neither real nor perceived political interference.
Aug 07, 2017
Cross-posted from USA Today.
Attorney General Jeff Sessions has reportedly received word from new White House chief of staff John Kelly that his job is safe. That was good news following President Trump's hints that he planned to replace Sessions with someone who would not recuse from the Justice Department's Trump-Russia investigation.
Such a move would sow doubt in the investigation's outcome and imperil the public's faith in the administration of justice. Simply put, the investigation must continue without real or perceived political interference.
Yet Trump's recent public haranguing of Sessions for recusing himself from the Trump-Russia investigation has been alarming enough. In the 2017 version of his campaign's "lock her up" chant, Trump took to Twitter complaining that Sessions hadn't done enough to investigate "Hillary Clinton crimes" -- another investigation from which Sessions has removed himself.
As both Republicans and Democrats have recognized, Sessions made exactly the right call in formally stepping back from these investigations.
Sessions had no choice but to recuse. And that's not just because of his two meetings with Russian Ambassador Kisilyak, which created an appearance of impropriety after he misled the Senate Judiciary Committee. A Justice Department rule prohibits employees from taking part in an investigation if they have "a personal or political relationship" with anyone who was involved in the investigation or would be affected by it. "Close identification with an elected official, a candidate . . . a political party, or a campaign" is explicitly listed as an example of the type of political relationship that would require recusal. There can be no doubt that Sessions -- as the first senator to back Trump's presidential aspirations and as a member of the Trump campaign's national security advisory council -- fits the bill.
The Justice Department rule is no technical nicety. It embodies fundamental principles of fairness that are the bedrock of our democracy.
In Federalist 10, James Madison famously noted: "no man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity." This principle applies to criminal investigations - a person with an interest in the outcome of the inquiry cannot be expected to be neutral in examining the facts and coming to conclusions. Their views would inevitably be colored by how the investigation would affect them and those with whom they have relationships.
It is easily understood in the context of everyday crimes -- a witness or suspect in a fraud investigation would never supervise the inquiry, just as they should not serve as a juror or judge in the case. Otherwise, the results would not carry any legitimacy.
When it comes to the Attorney General, this imperative is even stronger: He must ensure not only that justice is done, but that justice is seen to be done. The Attorney General sits atop the formidable federal law enforcement apparatus. All 93 U.S. Attorneys and their staffs and thousands of FBI agents come under his authority. If he is seen to be using these resources to advance the cause of one political faction over another, he will undermine faith in the principle that the United States is a country ruled by law.
Despite Trump's protests to the contrary, an Attorney General's decision to remove himself from an investigation is not breaking news. Former Attorneys General from both parties have done the same. In 2003, Attorney General John Ashcroft recused himself from the investigation into the leak of the identity of Valerie Plame, a former undercover CIA officer. President Bush, Vice President Cheney, and other senior administration officials to whom Ashcroft had close personal ties were interviewed as part of that investigation. The risk of perceived partiality or partisan influence was too great.
Attorney General Alberto Gonzales's recusal in 2007 from an investigation into his Department's firing of nine U.S. Attorneys provides another example, as well as a warning. Investigations into the U.S. Attorneys' firings concluded that the Department acted in an inappropriately partisan manner. The temptation for partisan influence is not just perceived, it is real.
Officials must be most careful in cases when the stakes are greatest. With individuals of all political stripes alarmed by Russian interference into the 2016 elections, an attack on the foundation of our democratic system, a thorough and impartial probe is critical.
Following Sessions' recusal, authority to supervise the Russia probe fell to his deputy, Rod Rosenstein. Recognizing that the public interest required an investigation untainted by political ties to the White House, Rosenstein appointed former FBI director Robert Mueller as special counsel to investigate the matter. The move -- which like Sessions' recusal garnered bipartisan support -- provided the credibility demanded by the severity of the threat and by the rule of law.
Trump needs to get past the impulse to find an attorney general who will protect him rather than the public interest. Believe it or not, Mr. President, this moment is bigger than you.
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What's at Stake with the Supreme Court
Will Republicans let partisan rancor and petty politics damage it?
Feb 17, 2016
Nearly every issue that matters to the American people eventually finds its way before the Supreme Court.
Whether it's access to health care, the right of women to make personal medical decisions, the ability of workers to defend themselves against discrimination, or simply having access to the voting booth, it's difficult to look at any part of our lives and not find evidence for the importance of our nation's highest court.
But even that list of challenges doesn't convey the total importance of filling the seat vacated by the death of Justice Antonin Scalia. With Republican senators threatening to block any replacement put forward by President Barack Obama, the integrity of our political system is also at stake.
What happens next will shed light on whether our political process is so broken that one party can ignore the plain language of our Constitution -- which entrusts nominations to the president in every year of his or her term -- and do serious harm to our federal courts, all to score political points against a president they don't like and tilt the Supreme Court towards the decisions they prefer.
The Constitution is clear about how we should handle vacancies on the Supreme Court. Article II, Section 2 says that the president shall "with the advice and consent of the Senate" name a new justice. That's pretty simple, right?
Yet within minutes of media reports of Scalia's passing, Senate Republicans, led by presidential candidate Ted Cruz, announced that they wouldn't even consider anyone Obama might nominate. It didn't take long for Senate Majority Leader Mitch McConnell to say the same, and for senators like Kelly Ayotte of New Hampshire and Pat Toomey of Pennsylvania to line up behind him.
Their refusal to fulfill their constitutional obligation is, to put it kindly, breathtaking. Over the past three decades, the longest confirmation process took 99 days. The last four justices, spanning two administrations, were confirmed in an average of 75 days. There are more than 300 days left before the end of the Obama administration.
If Congress fails to act, the Supreme Court will go two terms -- well over a year -- with a vacancy. Since the 1980s, Congress has almost never left a vacancy during a Supreme Court session.
But more important than the numbers is the idea that the Supreme Court -- an institution Americans have traditionally thought of as operating above politics, where ordinary individuals are supposed to get the same shot at justice as enormous corporations or powerful special interests -- is just another political pawn that Republicans can hold hostage.
Obama has said that despite the threats, he intends to nominate someone to fill Scalia's seat. And already a few conservatives are rejecting the GOP's partisan attacks on the Supreme Court. Senator Susan Collins of Maine and former Attorney Alberto Gonzales have made clear that the Senate should evaluate a nominee based on his or her merits.
Are Republican leaders willing to put partisanship aside, to honor our Constitution and give President Obama's nominee fair consideration? Or will they let partisan rancor and petty politics damage our nation's highest court?
There's a lot at stake with pending Supreme Court cases. But the question of whether Republicans are willing to fulfill their constitutional obligations may be the biggest question of all.
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Without Prosecution of Bush Officials, Obama Legacy 'Forever Poisoned'
Human Rights Watch offers legal blueprint for prosecuting architects of CIA torture program
Dec 01, 2015
With just a year left in office, President Barack Obama must launch a full criminal investigation of former President George W. Bush, Vice President Dick Cheney, and all U.S. officials behind the CIA torture program--and provide redress to its victims--Human Rights Watch (HRW) demanded Tuesday.
"It's been a year since the Senate torture report, and still the Obama administration has not opened new criminal investigations into CIA torture," said Kenneth Roth, executive director of HRW. "Without criminal investigations, which would remove torture as a policy option, Obama's legacy will forever be poisoned."
In making a legal case for such a criminal probe, HRW took direct aim at Obama's repeated refusal to pursue criminal investigations into CIA torture. In 2012, the administration closed its inquiry into the whether the CIA torture program involved criminal conduct, with then attorney general Eric Holder claiming there was insufficient evidence for prosecution.
This refusal persisted despite Obama's infamous admission in August 2014, "We tortured some folks."
"The U.S. has acknowledged that it engaged in torture, that it operated a program whereby it abducted men from around the world, put them in secret detention, and tortured them," Laura Pitter, senior national security counsel for HRW, said in a video accompanying the report.
What's more, Pitter argued, the summary of the still-classified Senate Intelligence Committee report on CIA torture, released in December 2014, revealed that the "brutality and systematic nature of these abuses" was far more "widespread and much more brutal than we thought."
With no statue of limitations on many of the crimes the U.S. government has admitted to, and with Obama still in office for another year, the human rights group says the president has "no more excuses" not to prosecute.
"[T]here is substantial evidence to support the opening of new investigations into allegations of criminal offenses by numerous US officials and agents in connection with the CIA program," reads the report. "These include torture, assault, sexual abuse, war crimes, and conspiracy to commit such crimes."
HRW notes that governments are required to investigate allegations of torture and "prosecute where warranted" under the United Nations Convention against Torture, which the United States ratified nearly 30 years ago.
"If the United States with its established democracy and stable political system can flout its legal obligation to prosecute torture, it undermines respect for the rule of law the world over," Roth said. "Government officials who went shopping for and helped to craft legal opinions justifying the unjustifiable shouldn't be able to rely on those opinions to shield themselves from liability."
HRW calls for the following officials "who created, authorized, and implemented" the CIA torture program to be among those facing criminal probes:
- Acting CIA General Counsel John Rizzo
- Assistant Attorney General for Office of Legal Counsel (OLC) Jay Bybee
- OLC Deputy Assistant Attorney General John Yoo
- CIA Director George Tenet
- National Security Legal Advisor John Bellinger
- Attorney General John Ashcroft
- White House Counsel Legal Advisor Alberto Gonzales
- Counsel to the Vice President David Addington
- Deputy White House Counsel Timothy Flanigan
- National Security Advisor Condoleezza Rice
- Defense Department General Counsel William Haynes II
- Vice President Dick Cheney
- President George W. Bush.
- James Mitchell and Bruce Jessen, CIA psychologist contractors
However, as journalist Murtaza Hussain noted in The Intercept on Tuesday, the CIA torture program is just the tip of the iceberg: "During the wars in Iraq and Afghanistan wide-ranging human rights abuses are also documented to have been carried out by members of the military alongside civilian contractors, including unauthorized practices such as rape and murder."
Meanwhile, there are already signs that presidential hopefuls are looking to CIA torture as an inspiration for future policy. In late November, 2016 GOP presidential candidate Donald Trump vowed to bring back waterboarding and torture, stating: "Even if it doesn't work, they deserve it anyway."
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Politics Swirling Around Clinton Email Scandal Obscure Real Problems
Hillary Clinton's use of a personal email server while secretary of state has inevitably become a fully inflated political football in these early days of the 2016 presidential race--with the right somehow linking the emails to the late Vince Foster, and Clinton's allies offhandedly dismissing the value of open government with comments like "
Mar 17, 2015
Hillary Clinton's use of a personal email server while secretary of state has inevitably become a fully inflated political football in these early days of the 2016 presidential race--with the right somehow linking the emails to the late Vince Foster, and Clinton's allies offhandedly dismissing the value of open government with comments like "people don't care about email policies."
But make no mistake, the scandal has highlighted the very real dangers to government transparency that result when politicians use private accounts to conduct official business. The scandal also highlights important concerns around cybersecurity and overclassification.
Here's the background. Shortly before being sworn in in 2009, outgoing Senator Clinton set up a private email server at her home in Chappaqua, New York and registered the domain "clintonemail.com." Two months later, Secretary of State Clinton started using that email exclusively for all correspondence--both private and government.
This practice was at odds with relevant guidance at State. Further, by keeping all emails, private and professional, on one server, Secretary Clinton effectively gave herself personal veto power over what would be subject to open records laws and what wouldn't. And, in fact, that's what happened. Although Secretary Clinton turned over 55,000 pages of emails in 2014, she made the determination on what to disclose and what to destroy (including over 32,000 emails that she deemed, at her sole discretion, private).
Fortunately, the laws have changed since then and high-ranking officials are now expressly required, if they use personal email accounts for government business, to send a copy of the work email to the government within 20 days. That requirement must be enforced strictly.
So what are the concerns?
The open government point should be obvious. Ironically, the Clinton White House was the first to recognize the importance of email as potential federal records. Previously treated as akin to disposable pink phone message pads, then-Staff Secretary John Podesta wrote a memorandum in 1993 clarifying that emails qualify as presidential records and must be retained. Out of concern that records could be lost, that memo barred the use of personal systems.
Violations of that policy during the Bush administration starkly highlighted the danger in allowing government officials to conduct official business using private accounts. As the Committee for Responsibility and Ethics in Washington has documented at length, various Bush White House officials used Republican National Committee accounts to communicate with Attorney General Alberto Gonzales in what would become the scandal over the hiring and firing of United States attorneys that the Department of Justice later found to be the inappropriately politicized.
The decision by Secretary Clinton to use "clintonemail.com" exclusively for official business disregards these historical examples. Unfortunately, officials can face the strong temptation to hide official business out of the reach of Freedom of Information Act requests. And as the new retention rules recognize, that's unacceptable for our democracy.
On cybersecurity, the concerns are perhaps less apparent but are just as acute. As ACLU Principal Technologist Chris Sogohian has noted at length, you're "on your own" when protecting a private server from hackers. With a government email account, you've got an entire IT apparatus protecting your information. Indeed, security for the government system is going to incorporate state-of-the-art techniques developed by the National Security Agency, which, despite its issues with mass surveillance, is pretty good at keeping hackers at bay.
Finally, the email controversy highlights the incoherence and unfairness of existing classification policies. Despite the fact that the State Department routinely deals in extensive volumes of classified information, Secretary Clinton has said that absolutely nothing in her private email was classified. As many classification experts have noted, that's pretty astounding if true, especially given that, as we now know, President Obama himself communicated with Secretary Clinton using her private email. Worse, and regardless of whether the claim is true, Secretary Clinton is virtually assured of immunity from any investigation into the improper handling of classified information, let alone legal consequences.
That immunity should be seen as of a piece with the amazingly lenient treatment of General David Petraeus, who pleaded guilty to a misdemeanor earlier this month for giving classified documents to his mistress while serving as the head of the CIA. And it contrasts tragically with the 35-year sentence imposed on Private Chelsea Manning (who, ironically, was prosecuted in part for releasing State Department emails), or the three felony charges facing Edward Snowden, or the months and months of hard time to be served by the unprecedented number of other national security "leakers" prosecuted by the Obama administration.
Fortunately, this whole imbroglio leaves us with a teaching moment. Secretary Clinton could--like President Obama in 2008--pledge a new-found commitment to open government. If she does decide to run in 2016, she should acknowledge her mistake in using a private server and embrace the cause of government transparency as a campaign promise. That's actually the best way to give her team possession of this political football--not to mention being the right thing to do.
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