By Patrick Martin |wsws.org, April 17, 2009
President Barack Obama announced Thursday that CIA agents who engaged in torture of prisoners over the past seven years will not be prosecuted or punished. As the Justice Department released memos documenting in grisly detail the interrogation guidelines set down by the Bush administration, the White House made it clear that neither those who ordered the torture nor those who carried it out would face justice.
The four memos released Thursday were written by the Office of Legal Counsel, an arm of the US Department of Justice, in 2002 and 2005. Their release was compelled by a court-established deadline in a Freedom of Information Act lawsuit filed by the American Civil Liberties Union (ACLU).
The ACLU denounced the Obama White House statement barring any prosecution of torturers. ACLU Executive Director Anthony Romero said the memos “provide yet more incontrovertible evidence that Bush administration officials at the highest level of government authorized and gave legal blessings to acts of torture that violate domestic and international law.”
The memos document in detail the methods employed against as many as 30 prisoners—a much larger number than previously admitted—including waterboarding, beating and kicking, slamming a prisoner’s head into the wall, slapping, forced standing, forced nakedness, prolonged shackling, sleep deprivation, deprivation of food and threats against a detainee’s family members.
Attorney General Eric Holder, chief US law enforcement officer, defended the decision not to enforce the laws against torture, saying, “At a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past.”
CIA Director Leon Panetta, a former Democratic congressman and former White House chief of staff in the Clinton administration, sent a message to CIA employees which declared that the CIA under the Bush administration had “repeatedly sought and repeatedly received written assurances from the Department of Justice that its practices were fully consistent with the laws and legal obligations of the United States. Those operations were also approved by the president and the National Security Council principals, and were briefed to the congressional leadership.”
Panetta’s statement underscores one of the principal considerations of the Obama White House. Any serious effort to prosecute torture at the CIA “black sites”—the secret prisons established as part of the Bush administration’s “war on terror”—would inevitably expose leading congressional Democrats, including House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid, to criminal sanctions, because they knew of and approved the brutal methods ordered by Bush and Cheney.
Not only will the Obama administration refuse to prosecute CIA officers, Panetta said, but the Department of Justice will provide free legal counsel to anyone “subject to investigations relating to these operations.” This means that the US government will represent and defend CIA torturers if they face congressional investigation, civil lawsuits by their victims, or prosecution under international law, such as the International Convention on Torture, to which the United States is a signatory. The US government will also pay any judgment against CIA agents if they lose a suit for damages.
Obama himself sent a letter to all CIA employees explaining his decision to release the torture memos, an action that was opposed by Panetta and former CIA Director Michael Hayden. He wrote, “the release of these memos is required by our commitment to the rule of law.” This commitment extends only to producing pieces of paper—released with names and other incriminating details redacted—but not to any actual sanctions against those who committed horrific crimes.
The text of the statement Obama issued from the White House is typical of the mix of hypocrisy, demagogy and lying that characterizes the major pronouncements of the new president. Obama never uses the word torture, substituting a series of euphemisms that were then parroted in media coverage, where the word “torture” appears only in quotations from critics of the White House decision.
Obama claims that “In one of my very first acts as president, I prohibited the use of these interrogation techniques by the United States because they undermine our moral authority and do not make us safer.” In fact, this prohibition is not absolute and is essentially a cosmetic gesture, aimed at restoring the “moral authority” of an imperialist power which has carried out massive war crimes.
Profusely apologizing to the CIA for releasing the documents, Obama hastens to reassure the intelligence agencies that he still supports them, declaring, “in a dangerous world, the United States must sometimes carry out intelligence operations and protect information that is classified for purposes of national security. I have already fought for that principle in court and will do so again in the future.”
Obama describes the CIA torturers as people “who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.” This echoes the “just-following-orders” defense that was rejected by the Nuremberg Tribunal when Nazi war criminals sought to use it.
No one needed a memo to tell them that the methods employed in the CIA “black sites” were brutal, repugnant and criminal. That is why the CIA and its protectors have stonewalled the courts, long after the details have become public through leaks to the press based on the accounts of those who survived the interrogations, as well as the findings of the International Committee of the Red Cross.
The bulk of the Obama statement is devoted to glorifying the “intelligence community,” in language that would be echoed word for word by Bush and Cheney: “The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.”
The truth is that US intelligence agencies carry out assassinations, torture, subversion and provocation in the interests, not of the American people, but of the American corporate-financial ruling elite. The CIA is reviled all over the world as the American “Murder Inc.,” which has overthrown governments targeted by Washington, instigated civil wars and established military dictatorships in country after country.
Obama’s statement combines abject cowardice, as he bows before the power of the military/intelligence apparatus, and an embrace of its history of violence and counterrevolution, as he pledges in the statement, “I will always do whatever is necessary to protect the national security of the United States.”
In closing, the US president declares, “This is a time for reflection, not retribution … nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.”
What cynical rubbish! As if torture can be stopped by exonerating the torturers and concealing their crimes from the public!
The message is clear: anyone who demands accountability for the crimes committed under the Bush administration (and continued under the Obama administration) is acting to “divide” the nation.
By declaring an amnesty for those who carried out actions that—even according to the Obama administration—constituted torture and were illegal, the White House is sanctioning criminal activity by the state. This amounts to a carte blanche to the military and intelligence apparatus to utilize whatever illegal methods they choose to employ.
Obama’s kowtowing to the most reactionary forces within the state underscores the vast and ever-growing power that this “state within a state” exerts over all aspects of government policy. It is one more demonstration of the terminal decay of American democracy.
The Bush Administration Office of Legal Counsel authorized the Central Intelligence Agency to put insects inside a confinement box as part of the Administration’s “harsh interrogation” practice, as well as throwing detainees into walls, according to memos released by President Barack Obama on Thursday.
Peace and Justice Post 
How Bush’s Tortured Legal Logic Won
April 17, 2009Robert Parry | Consortiumnews.com, April 17, 2009
Almost as disturbing as reading the Bush administration’s approved menu of brutal interrogation techniques is recognizing how President George W. Bush successfully shopped for government attorneys willing to render American laws meaningless by turning words inside out.
The four “torture” memos, released Thursday, revealed not just that the stomach-turning reports about CIA interrogators abusing “war on terror” suspects were true, but that the United States had gone from a “nation of laws” to a “nation of legal sophistry” – where conclusions on law are politically preordained and the legal analysis is made to fit.
You have passages like this in the May 10, 2005, memo by Steven Bradbury, then acting head of the Justice Department’s Office of Legal Counsel:
“Another question is whether the requirement of ‘prolonged mental harm’ caused by or resulting from one of the enumerated predicate acts is a separate requirement, or whether such ‘prolonged mental harm’ is to be presumed any time one of the predicate acts occurs.”
As each phrase in the Convention Against Torture was held up to such narrow examination, the forest of criminal torture was lost in the trees of arcane legal jargon. Collectively, the memos leave a disorienting sense that any ambiguity in words can be twisted to justify almost anything.
So, a “war on terror” prisoner could not only be locked up in solitary confinement indefinitely based on the sole authority of President Bush but could be subjected to a battery of abusive and humiliating tactics, all in the name of extracting some information that purportedly would help keep the United States safe – and it would not be called “torture.”
Some tactics were bizarre, like feeding detainees a liquid diet of Ensure to make “other techniques, such as sleep deprivation, more effective.” The memo’s sleep deprivation clause, in turn, allowed interrogators to shackle prisoners to an overhead pipe (or in some other uncomfortable position) for up to 180 hours (or seven-and-a-half days).
While shackled, the prisoner would be dressed in a diaper that “is checked regularly and changed as necessary.” The memo asserted that “the use of the diaper is for sanitary and health purposes of the detainee; it is not used for the purpose of humiliating the detainee, and it is not considered to be an interrogation technique.”
Beyond the painful disorientation from depriving a person of sleep while chained in a standing position for days, the Justice Department memos called for prisoners to be forced into other “stress positions” for varying periods of time to cause “the physical discomfort associated with muscle fatigue.”
Tiny Boxes
The detainees also could be put into small, dark boxes where they could barely move (and in the case of one detainee, Abu Zubaydah, could have an insect slipped into his box as a way of playing on his fear of bugs), according to the Aug. 1, 2002, memo.
“The duration of confinement varies based upon the size of the container,” the May 10, 2005, memo added, with the smaller space (sitting only) restricted to two hours at a time and a somewhat larger box (permitting standing) limited to eight hours at a time and 18 hours a day.
Then, there were various slaps, grabs and slamming a prisoner against a “flexible” wall while his neck was in a sling “to help prevent whiplash.”
Prisoners also were subjected to forced nudity, sometimes in the presence of women, according to the May 10 memo.
“We understand that interrogators are trained to avoid sexual innuendo or any acts of implicit or explicit sexual degradation,” the memo said. “Nevertheless, interrogators can exploit the detainee’s fear of being seen naked.
“In addition, female officers involved in the interrogation process may see the detainees naked; and for purposes of our analysis, we will assume that detainees subjected to nudity as an interrogation technique are aware that they may be seen naked by females.”
Another approved technique was “water dousing” in which a detainee is sprayed with water that can be as cold as 41 degrees Fahrenheit for up to 20 minutes. Slightly warmer water could be used to douse a prisoner for longer periods of time.
Both the 2002 and 2005 memos permitted the “waterboard,” a technique that involves covering a prisoner’s face with a cloth and pouring water on it to create the panicked sensation of drowning. The interrogators also were authorized to prevent a detainee from trying to “defeat the technique” by thrashing about or trying to breathe from the corner of his mouth.
“The interrogator may cup his hands around the detainee’s nose and mouth to dam the runoff, in which case it would not be possible for the detainee to breathe during the application of the water,” the May 10 memo reads. “In addition, you have informed us that the technique may be applied in a manner to defeat efforts by the detainee to hold his breath by, for example, beginning an application of water as the detainee is exhaling.”
At least since the days of the Spanish Inquisition, waterboarding has been regarded as torture. The U.S. government prosecuted Japanese soldiers who used it against American troops in World War II. But the legal reasoning of the Bush administration’s memos transformed waterboarding into an acceptable method of interrogation.
Lawyer-Shopping
Although the four released memos included the most famous one – from Aug. 1, 2002, which provided the initial legal cover for abusive interrogations – the three others from May 2005 may be more significant in destroying the legal cover that President Bush and his senior aides have hidden behind.
Their claim has been that they were simply operating within legal parameters set by lawyers at the Justice Department’s Office of Legal Counsel, which is responsible for advising Presidents on the limits of their authority. In other words, professional lawyers provided objective legal advice and the administration simply followed it.
But that claim now collides with the reality that other Justice Department lawyers – from 2003 to 2005 – overturned the initial memo and resisted its reimplementation until they were ousted. In effect, the Bush administration appears to have gone lawyer-shopping for attorneys who would craft opinions that the White House wanted.
Assistant Attorney General Jay Bybee signed the original Aug. 1, 2002, “torture” memo and other opinions granting expansive presidential powers (drafted by his deputy John Yoo).
However, Bybee quit in 2003 to accept President Bush’s appointment of him as a federal appeals court judge in San Francisco, and his successor as head of the Office of Legal Counsel, Assistant Attorney General Jack Goldsmith, withdrew many Bybee-Yoo memos as legally flawed.
Goldsmith’s actions angered the White House, particularly Vice President Dick Cheney’s legal counsel David Addington. In a 2007 book, The Terror Presidency, Goldsmith described one White House meeting at which Addington pulled out a 3-by-5-inch card listing the OLC opinions that Goldsmith had withdrawn.
“Since you’ve withdrawn so many legal opinions that the President and others have been relying on,” Addington said sarcastically, “we need you to go through all of OLC’s opinions and let us know which ones you will stand by.”
Though supported by Deputy Attorney General James Comey, Goldsmith succumbed to the White House pressure and quit in 2004. Still, despite Goldsmith’s departure, Comey and the new acting head of the OLC, Daniel Levin, resisted restoring the administration’s right to use the harsh interrogation techniques.
That didn’t occur until White House counsel Alberto Gonzales became Attorney General in 2005 and made Bradbury the acting chief of the OLC. After signing the three “torture” memos in May, Bradbury was rewarded with Bush’s formal nomination in June to be Assistant Attorney General for the OLC (although he never gained Senate confirmation).
Comey Departs
With the OLC reaffirming the administration’s interrogation techniques, Comey’s days were numbered.
Though having been a successful prosecutor on past terrorism cases, such as the Khobar Towers bombing which killed 19 U.S. servicemen in 1996, Comey had earned the derisive nickname from Bush as “Cuomey” or just “Cuomo,” a strong insult from Republicans who deemed former New York Gov. Mario Cuomo to be excessively liberal and famously indecisive.
On Aug. 15, 2005, in his farewell speech, Comey urged his colleagues to defend the integrity and honesty of the Justice Department.
“I expect that you will appreciate and protect an amazing gift you have received as an employee of the Department of Justice,” Comey said. “It is a gift you may not notice until the first time you stand up and identify yourself as an employee of the Department of Justice and say something – whether in a courtroom, a conference room or a cocktail party – and find that total strangers believe what you say next.
“That gift – the gift that makes possible so much of the good we accomplish – is a reservoir of trust and credibility, a reservoir built for us, and filled for us, by those who went before – most of whom we never knew. They were people who made sacrifices and kept promises to build that reservoir of trust.
“Our obligation – as the recipients of that great gift – is to protect that reservoir, to pass it to those who follow, those who may never know us, as full as we got it. The problem with reservoirs is that it takes tremendous time and effort to fill them, but one hole in a dam can drain them.
“The protection of that reservoir requires vigilance, an unerring commitment to truth, and a recognition that the actions of one may affect the priceless gift that benefits all. I have tried my absolute best – in matters big and small – to protect that reservoir and inspire others to protect it.”
Though the full import of Comey’s comments was not apparent at the time, it now appears that he was referring to the legal gamesmanship that Bradbury and others had used to circumvent American laws and traditions to enable the Bush administration to engage in torture.
In releasing the four memos on Thursday, President Barack Obama and Attorney General Eric Holder repeated their rejection of the Bybee-Yoo-Bradbury legal theories, but also stipulated that they would oppose any legal action against the CIA interrogators who abused detainees under the Bush administration’s legal guidance.
Neither Obama nor Holder spoke specifically about possible legal accountability for Bush’s compliant lawyers — or for Bush and his top aides who oversaw the torture policies and picked the lawyers. However, Obama recommended a focus on the future, not the past.
Calling the period covered by the four memos a “dark and painful chapter in our history,” Obama added that “nothing will be gained by spending our time and energy laying blame for the past.”
The lack of accountability for Bush and his lawyers, however, may mean that future Presidents will follow Bush’s lead and assign some clever legal wordsmiths the job of finding ways around criminal statutes, international treaties and the U.S. Constitution.
If legal language can be interpreted any way that a President wishes – and if the U.S. Supreme Court is stocked with like-minded judges – then laws will no longer protect anyone, whether a suspected Middle Eastern terrorist or an American citizen.
Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & ‘Project Truth’ are also available there. Or go to Amazon.com.
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Tags: Bush administration, CIA, forced nudity, interrogation techniques, Jay Bybee, John Yoo, memos, President Barack Obama, President George W. Bush, prisoners, waterboarding
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