Thursday, April 10, 2008

Torture On The Table

With a tip of the Generik hat to my esteemed colleague and friend, the King of Zembla, I'd like to recommend this Harper's magazine article by Scott Horton regarding the recent release of a second John Yoo memo (dubbed "Yoo Two") justifying torture by US agents in Iraq and Guantanamo. It's blood-chilling reading what the criminals in the White House -- with evil Dick Cheney leading the charge -- have been able to get away with over the past seven years. Even scarier is the fact that no one in Congress or the media (with a very few exceptions -- like Horton himself here, for instance) seems to be much concerned about these blatant war crimes. Where, as Bob Dole once famously asked, is the outrage?

Here are some excerpts from the article. Better if you read the whole thing.

Why Yoo Two?
According to the official narrative, the Bush Administration turned to the Justice Department for legal guidance on what could be done to give interrogators the latitude they were demanding in dealing with prisoners taken in the war on terror. However, not a single element of the official narrative is entirely true. The interrogators were not “pushing for broader authority.” Indeed, the pushing was all coming out of the White House (from Vice President Cheney, to be specific), and the intelligence professionals were actually pushing back. Moreover, torture was being used almost from the start of the “war on terror.” Special operations units operating under the authority of Dr. Stephen Cambone, the Under Secretary of Defense for Intelligence, had been authorized to use torture techniques from the opening of the war, and they used them with gusto. At Guantánamo and at Bagram Air Base in Afghanistan, numerous instances of “highly coercive techniques” had been documented; indeed, the stories out of Bagram are among the most gruesome to be documented. In the documentary “Taxi to the Dark Side,” for instance (for which I consulted and in which I appear), we find footage of a senior U.S. officer in Afghanistan talking about the authority for torture, which was issued, and which military personnel were instructed to lie about or deny to keep covered up.

So why the need for Yoo Two? Jane Mayer pieced that together for us in “The Memo.” Navy officers had gotten a gander at what was up at Gitmo, and it had gotten back to Alberto Mora, the Navy general counsel in the Pentagon. He had also learned about a Rumsfeld order issued on December 2, 2002, authorizing a series of brutal techniques, including waterboarding. Other senior military lawyers quickly also learned about this. An uproar followed in the Pentagon and Haynes found himself isolated and under pressure from all sides. He folded and asked Rumsfeld to rescind the order.

The traditional military forces in the Pentagon felt they had scored a victory, but of course Haynes was determined to proceed with all the torture practices he had advised Rumsfeld to approve. He was intent on outmaneuvering the generals, admirals and figures like Mora. And while he lacked many allies in the Pentagon—other than the Neocon dead-enders like Doug Feith and Stephen Cambone—he knew he could count on the OLC to come through for him.

Manadel al-Jamadi, dubbed the “Iceman,” tortured to death in November 2003, using techniques that John Yoo approved in his torture memoranda.

So the OLC memo was solicited as a trump card to override objections within the military, and to silence objections based on law. Indeed, the memo was subsequently used in the aborted Pentagon Working Group Report, whose members were told they were bound to accept the reasoning and opinions expressed in it. In fact, most of the Working Group found the memo so facially implausible and foolish in its reasoning that they refused.

. . .

I’ve Got a Secret
Yoo Two also furnishes us a lesson in how the Bush Administration wields “secret” classifications. The idea that a legal memorandum by OLC could be classified as “secret” and withheld on that basis is astonishing. When this point was raised previously, it produced speculation that the memo must as written be tied to specific facts which are highly classified and cannot be disclosed. Perhaps Yoo had included a detailed technical discussion of the actual torture techniques to be used? Of course, we know that precisely those concerns had led draftsmen of other documents to segregate out discussion of techniques to an appendix which could be separately classified, leaving the pure discussion of legal issues as a stand-alone document. But not so.

When Yoo Two was declassified and released, we see that not a single word of the document was blacked out or excised. And indeed, there was no basis whatsoever for the classification to start with, not even a figleaf.

So why has a legal policy statement been classified and withheld for five years? The answer to that question is now clear. The memorandum would have produced reactions of ridicule and outrage from throughout the professional community—as indeed it has. The author and the classifier knew that. They used classification as a political tool to keep something which is a quintessentially public document out of the reach of the public. Moreover, this classification reflects a regular pattern of abuse by the Bush Administration, a fact to be kept in mind when considering Attorney General Mukasey’s harsh and factually unfounded criticisms of pending legislation designed to reign in the use of state secrecy claims to cloak corruption and criminal conduct by state actors.

It’s also noteworthy that this memo was declassified and released by Jim Haynes’s successor-in-office, and it was done almost immediately following Haynes’s departure. A coincidence?

The abusive use of classifications is a matter that cries for Congressional oversight and action. At the close of World War I, Franz Kafka wrote the parable “Before the Law” (“Vor dem Gesetz”) later incorporated into the novel The Trial. This parable operates at several levels, but one of them, signaled by the choice of the word Gesetz, is quite literally anxiety about secret laws. Kafka was concern about a tendency that Max Weber had just warned against, namely that an increasingly authoritarian and secretive state would begin to make even the law itself a secret. The practices of the Bush Administration are increasingly a realization of this nightmare.

Make no mistake; this is a nightmare in which we're living (and, by remaining silent, are complicit). When will this country wake up and end it?
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