Be Careful What You Wish For

So, does Eric Holder want to open this can of worms? Is giving a legal opinion now a criminal offense? Really?

Holder: Justice Department Will ‘Follow the Law’ in Probing Interrogation Tactics

The Justice Department will “follow the law” in investigating the Bush administration officials who cleared harsh interrogation techniques, Attorney General Eric Holder said Wednesday.

Holder reiterated his position a day after President Obama opened the door for potential prosecution against the lawyers who drafted memos that justified harsh interrogation tactics.

Obama has said the CIA operatives who employed those tactics using the legal guidance provided will be safe from criminal charges, but offered no such assurances to Bush administration lawyers.

“We’re going to follow the evidence wherever it takes us. We’re going to follow the law wherever that takes us,” Holder told reporters.

“No one is above the law,” Holder said.

Critics have said trying to prosecute lawyers for offering legal advice is a slippery slope toward criminalizing opinions.

“Will Democrats also investigate the members of Congress who were briefed on interrogation tactics in 2002 and raised no objection? If the lawyers are threatened with an investigation, why not the politicians who approved their actions?” asked Rep. Lamar Smith, R-Texas.

What about Congress?

Congress Debates Fresh Investigation Of Interrogations

Obama had hoped to put the whole matter behind him, first by banning those interrogation methods early in his presidency and then by releasing the memos last week with the proviso that no CIA official who carried out interrogations should be prosecuted.

Instead, the latest decision has stirred controversy on the right and the left. Obama has drawn sharp criticism from former vice president Richard B. Cheney, former CIA directors and Republican elected officials for releasing the memos. Those critics see softness in the commander in chief. He faces equally strong reaction from the left, where there is a desire to punish Bush administration officials for their actions and to conduct a more thorough investigation of what happened.

The controversy moved to Capitol Hill yesterday as lawmakers debated the wisdom of launching a fresh investigation into the Bush-era practices. Several top Democrats, including Senate Majority Leader Harry M. Reid (D-Nev.) and Sen. Richard J. Durbin (D-Ill.), withheld judgment, noting that the Senate Select Committee on Intelligence has begun an inquiry.

House Speaker Nancy Pelosi (D-Calif.), however, endorsed the idea and said witnesses should not be immune from prosecution.

Even Speaker Pelosi is on the bandwagon.

Pelosi backs anti-terror ‘truth commission’

House Speaker Nancy Pelosi endorsed today the establishment of a formal “truth commission” to investigate Bush administration anti-terrorism policies, including an examination of former top Justice Department lawyers who crafted the legal justifications for what critics say was torture.

Such a probe could target UC Berkeley law professor John Yoo, a former deputy assistant attorney general in the Bush Justice Department who was instrumental in crafting the interrogation memoranda, and his former boss, Jay Bybee, now a judge on the Ninth U.S. Circuit Court of Appeals in San Francisco.

Pelosi’s endorsement follows President Obama’s signal Tuesday that he was open to the idea. Obama’s shift, in tandem with last week’s release by the administration of past memos describing brutal interrogation techniques on terror suspects, has touched a match to the seething controversy over whether there should be a public or legal accounting for Bush administration policies on torture and detention.

But wait Nancy, didn’t you approve of these interrogation techniques, are you going to investigate yourself?

Top legislators knew of interrogations

The CIA briefed top Democrats and Republicans on the congressional intelligence committees on enhanced interrogation techniques more than 30 times, according to intelligence sources, who said those members tacitly approved the techniques which some Democrats in Congress now say should land Bush administration officials in prison.

Between 2002 and 2006, the top Republicans and Democrats on the House and Senate intelligence committees “each got complete, benchmark briefings on the program,” said one of the intelligence sources who is familiar with the briefings.

“If Congress wanted to kill this program, all it had to do was withhold funding,” said the source, who spoke on the condition of anonymity because he was not authorized to talk about the closed-door briefings.

Those who were briefed included current House Speaker Nancy Pelosi, Sen. John D. Rockefeller IV of West Virginia and Rep. Jane Harman of California, all Democrats, and Sen. Pat Roberts of Kansas, Sen. Richard C. Shelby of Alabama and Rep. Peter Hoekstra of Michigan, all Republicans.

See also:
Holding Pelosi Accountable For Torture
Opinion: Nancy Pelosi encouraged CIA water boarding

Oops! Hey Obama, still think opening this Pandora’s box was a good idea? If this gets any real traction, it will surely scuttle your presidency and you’ll never be reelected. Emotions are that strong on this issue.

Presidential Poison

Mark down the date. Tuesday, April 21, 2009, is the moment that any chance of a new era of bipartisan respect in Washington ended. By inviting the prosecution of Bush officials for their antiterror legal advice, President Obama has injected a poison into our politics that he and the country will live to regret.

Elections settle those battles, at least for a time, and Mr. Obama’s victory in November has given him the right to change policies on interrogations, Guantanamo, or anything on which he can muster enough support. But at least until now, the U.S. political system has avoided the spectacle of a new Administration prosecuting its predecessor for policy disagreements. This is what happens in Argentina, Malaysia or Peru, countries where the law is treated merely as an extension of political power.

If this analogy seems excessive, consider how Mr. Obama has framed the issue. He has absolved CIA operatives of any legal jeopardy, no doubt because his intelligence advisers told him how damaging that would be to CIA morale when Mr. Obama needs the agency to protect the country. But he has pointedly invited investigations against Republican legal advisers who offered their best advice at the request of CIA officials.

“Your intelligence indicates that there is currently a level of ‘chatter’ equal to that which preceded the September 11 attacks,” wrote Assistant Attorney General Jay Bybee, in his August 1, 2002 memo. “In light of the information you believe [detainee Abu] Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you have described as an ‘increased pressure phase.'”

So the CIA requests a legal review at a moment of heightened danger, the Justice Department obliges with an exceedingly detailed analysis of the law and interrogation practices — and, seven years later, Mr. Obama says only the legal advisers who are no longer in government should be investigated. The political convenience of this distinction for Mr. Obama betrays its basic injustice. And by the way, everyone agrees that senior officials, including President Bush, approved these interrogations. Is this President going to put his predecessor in the dock too?

Mr. Obama seemed to understand the peril of such an exercise when he said, before his inauguration, that he wanted to “look forward” and beyond the antiterror debates of the Bush years. As recently as Sunday, Rahm Emanuel said no prosecutions were contemplated and now is not a time for “anger and retribution.” Two days later the President disavowed his own chief of staff. Yet nothing had changed except that Mr. Obama’s decision last week to release the interrogation memos unleashed a revenge lust on the political left that he refuses to resist.

Just as with the AIG bonuses, he is trying to co-opt his left-wing base by playing to it — only to encourage it more. Within hours of Mr. Obama’s Tuesday comments, Senator Carl Levin piled on with his own accusatory Intelligence Committee report. The demands for a “special counsel” at Justice and a Congressional show trial are louder than ever, and both Europe’s left and the U.N. are signaling their desire to file their own charges against former U.S. officials.

Those officials won’t be the only ones who suffer if all of this goes forward. Congress will face questions about what the Members knew and when, especially Nancy Pelosi when she was on the House Intelligence Committee in 2002. The Speaker now says she remembers hearing about waterboarding, though not that it would actually be used. Does anyone believe that? Porter Goss, her GOP counterpart at the time, says he knew exactly what he was hearing and that, if anything, Ms. Pelosi worried the CIA wasn’t doing enough to stop another attack. By all means, put her under oath.

Mr. Obama may think he can soar above all of this, but he’ll soon learn otherwise. The Beltway’s political energy will focus more on the spectacle of revenge, and less on his agenda. The CIA will have its reputation smeared, and its agents second-guessing themselves. And if there is another terror attack against Americans, Mr. Obama will have set himself up for the argument that his campaign against the Bush policies is partly to blame.

Above all, the exercise will only embitter Republicans, including the moderates and national-security hawks Mr. Obama may need in the next four years. As patriotic officials who acted in good faith are indicted, smeared, impeached from judgeships or stripped of their academic tenure, the partisan anger and backlash will grow. And speaking of which, when will the GOP Members of Congress begin to denounce this partisan scapegoating? Senior Republicans like Mitch McConnell, Richard Lugar, John McCain, Orrin Hatch, Pat Roberts and have hardly been profiles in courage.

Mr. Obama is more popular than his policies, due in part to his personal charm and his seeming goodwill. By indulging his party’s desire to criminalize policy advice, he has unleashed furies that will haunt his Presidency.

See also:
Obama’s torture memo two-step
Obama pressed to back torture investigation
Torture Cases Would Face Legal Hurdles
Prosecuting Heroes

And hey, what about our extraordinary rendition programs? You know, where we send bad people to countries like Egypt to undergo real torture. Are we going to investigate that too?

/wasn’t Bill Clinton the one who first authorized extraordinary rendition, are we going to persecute the Clinton administration too, as long as we’re at it?

I’ll Talk, I’ll Talk, Anything But The Caterpillar Torture!

You know, if the release of the four once top secret Justice Department Memos on Interrogation Techniques wasn’t so utterly devastating to future CIA operations and our national security in general, the description of the interrogation techniques contained within, that supposedly constitute “torture”, would be just plain damn laughable.

Inexcusable Lapse

War On Terror: Imagine a president of the United States, within his first hundred days, revealing secrets that help terrorists kill. The secret memos on enhanced interrogation, now made public, do exactly that.

We are told by President Obama’s senior adviser David Axelrod that the president agonized for four weeks over the “weighty decision” to make public memoranda detailing the specifics of the CIA’s tough interrogation of high-value terrorist detainees such as 9/11 mastermind Khalid Sheikh Mohammad.

For most other presidents, it would have taken maybe four minutes, required little soul-searching and resulted in the opposite choice.

What on earth could the president have been thinking in revealing the nuts and bolts of how we extract information from al-Qaida operatives to prevent the success of their terrorist operations?

What could have possessed him to make public the steps our interrogators go through, the limits of pain and discomfort they (but not the prisoners) know they will not exceed, and the analytical classification and specific purpose of each of the various techniques?

These top secrets will arm Islamist jihadists with knowledge that will be invaluable to them. Future terrorist detainees will now know, for instance, that their interrogations are under continual video surveillance to make sure no lasting medical or psychological consequences result from the techniques used. Will they now teach themselves to fake such ill effects?

Terrorists will know that when they are placed in a tiny container in “cramped confinement” it will last only “up to two hours,” as a declassified memo from the Justice Department to the CIA noted. They will know that “stress positions” are used “only to induce temporary muscle fatigue” not “severe physical pain.”

They will now know that when subjected to “water dousing” they need not have the slightest fear of hypothermia, because every precaution is taken to keep the temperature of both the room and the water itself far above freezing.

They will know sleep deprivation inflicted by the interrogators seldom exceeds 96 hours, and they’ll know the specifics and purposes behind the relatively mild technique of “dietary manipulation.”

What the president has given to our enemies is a treasure chest of defensive weapons. Within the caves of the mountainous Pakistan/Afghanistan border, Islamofascist plotters must wonder how self-destructively corrupt their American adversaries have to be to allow such materials to land in their hands.

The piece of information that may be of most value to terrorists is the government’s assessment that waterboarding was “the most traumatic of the enhanced interrogation techniques” and implicitly the most effective.

Terrorist groups around the world will now know that waterboarding was “authorized for, at most, one 30-day period, during which the technique can actually be applied on no more than five days” with “no more than two sessions in any 24-hour period.”

Each session lasted no more than two hours, consisting of, at most, six applications of water for 10 seconds each time, for a total of no longer than 12 minutes per each 24-hour period. Presumably the issue is academic since the Obama administration has officially prohibited waterboarding.

There is no more valuable tool for subjects of interrogation than to know what they will be subjected to. How in good conscience could our president have given this gift to those trying to destroy us?

The President Ties His Own Hands on Terror

By MICHAEL HAYDEN and MICHAEL B. MUKASEY
The Obama administration has declassified and released opinions of the Justice Department’s Office of Legal Counsel (OLC) given in 2005 and earlier that analyze the legality of interrogation techniques authorized for use by the CIA. Those techniques were applied only when expressly permitted by the director, and are described in these opinions in detail, along with their limits and the safeguards applied to them.

The release of these opinions was unnecessary as a legal matter, and is unsound as a matter of policy. Its effect will be to invite the kind of institutional timidity and fear of recrimination that weakened intelligence gathering in the past, and that we came sorely to regret on Sept. 11, 2001.

Proponents of the release have argued that the techniques have been abandoned and thus there is no point in keeping them secret any longer; that they were in any event ineffective; that their disclosure was somehow legally compelled; and that they cost us more in the coin of world opinion than they were worth. None of these claims survives scrutiny.

Soon after he was sworn in, President Barack Obama signed an executive order that suspended use of these techniques and confined not only the military but all U.S. agencies — including the CIA — to the interrogation limits set in the Army Field Manual. This suspension was accompanied by a commitment to further study the interrogation program, and government personnel were cautioned that they could no longer rely on earlier opinions of the OLC.

Although evidence shows that the Army Field Manual, which is available online, is already used by al Qaeda for training purposes, it was certainly the president’s right to suspend use of any technique. However, public disclosure of the OLC opinions, and thus of the techniques themselves, assures that terrorists are now aware of the absolute limit of what the U.S. government could do to extract information from them, and can supplement their training accordingly and thus diminish the effectiveness of these techniques as they have the ones in the Army Field Manual.

Moreover, disclosure of the details of the program pre-empts the study of the president’s task force and assures that the suspension imposed by the president’s executive order is effectively permanent. There would be little point in the president authorizing measures whose nature and precise limits have already been disclosed in detail to those whose resolve we hope to overcome. This conflicts with the sworn promise of the current director of the CIA, Leon Panetta, who testified in aid of securing Senate confirmation that if he thought he needed additional authority to conduct interrogation to get necessary information, he would seek it from the president. By allowing this disclosure, President Obama has tied not only his own hands but also the hands of any future administration faced with the prospect of attack.

Disclosure of the techniques is likely to be met by faux outrage, and is perfectly packaged for media consumption. It will also incur the utter contempt of our enemies. Somehow, it seems unlikely that the people who beheaded Nicholas Berg and Daniel Pearl, and have tortured and slain other American captives, are likely to be shamed into giving up violence by the news that the U.S. will no longer interrupt the sleep cycle of captured terrorists even to help elicit intelligence that could save the lives of its citizens.

Which brings us to the next of the justifications for disclosing and thus abandoning these measures: that they don’t work anyway, and that those who are subjected to them will simply make up information in order to end their ordeal. This ignorant view of how interrogations are conducted is belied by both experience and common sense. If coercive interrogation had been administered to obtain confessions, one might understand the argument. Khalid Sheikh Mohammed (KSM), who organized the Sept. 11, 2001 attacks, among others, and who has boasted of having beheaded Daniel Pearl, could eventually have felt pressed to provide a false confession. But confessions aren’t the point. Intelligence is. Interrogation is conducted by using such obvious approaches as asking questions whose correct answers are already known and only when truthful information is provided proceeding to what may not be known. Moreover, intelligence can be verified, correlated and used to get information from other detainees, and has been; none of this information is used in isolation.

The terrorist Abu Zubaydah (sometimes derided as a low-level operative of questionable reliability, but who was in fact close to KSM and other senior al Qaeda leaders) disclosed some information voluntarily. But he was coerced into disclosing information that led to the capture of Ramzi bin al Shibh, another of the planners of Sept. 11, who in turn disclosed information which — when combined with what was learned from Abu Zubaydah — helped lead to the capture of KSM and other senior terrorists, and the disruption of follow-on plots aimed at both Europe and the U.S. Details of these successes, and the methods used to obtain them, were disclosed repeatedly in more than 30 congressional briefings and hearings beginning in 2002, and open to all members of the Intelligence Committees of both Houses of Congress beginning in September 2006. Any protestation of ignorance of those details, particularly by members of those committees, is pretense.

The techniques themselves were used selectively against only a small number of hard-core prisoners who successfully resisted other forms of interrogation, and then only with the explicit authorization of the director of the CIA. Of the thousands of unlawful combatants captured by the U.S., fewer than 100 were detained and questioned in the CIA program. Of those, fewer than one-third were subjected to any of the techniques discussed in these opinions. As already disclosed by Director Hayden, as late as 2006, even with the growing success of other intelligence tools, fully half of the government’s knowledge about the structure and activities of al Qaeda came from those interrogations.

Nor was there any legal reason compelling such disclosure. To be sure, the American Civil Liberties Union has sued under the Freedom of Information Act to obtain copies of these and other memoranda, but the government until now has successfully resisted such lawsuits. Even when the government disclosed that three members of al Qaeda had been subjected to waterboarding but that the technique was no longer part of the CIA interrogation program, the court sustained the government’s argument that the precise details of how it was done, including limits and safeguards, could remain classified against the possibility that some future president may authorize its use. Therefore, notwithstanding the suggestion that disclosure was somehow legally compelled, there was no legal impediment to the Justice Department making the same argument even with respect to any techniques that remained in the CIA program until last January.

There is something of the self-fulfilling prophecy in the claim that our interrogation of some unlawful combatants beyond the limits set in the Army Field Manual has disgraced us before the world. Such a claim often conflates interrogation with the sadism engaged in by some soldiers at Abu Ghraib, an incident that had nothing whatever to do with intelligence gathering. The limits of the Army Field Manual are entirely appropriate for young soldiers, for the conditions in which they operate, for the detainees they routinely question, and for the kinds of tactically relevant information they pursue. Those limits are not appropriate, however, for more experienced people in controlled circumstances with high-value detainees. Indeed, the Army Field Manual was created with awareness that there was an alternative protocol for high-value detainees.

In addition, there were those who believed that the U.S. deserved what it got on Sept. 11, 2001. Such people, and many who purport to speak for world opinion, were resourceful both before and after the Sept. 11 attacks in crafting reasons to resent America’s role as a superpower. Recall also that the first World Trade Center bombing in 1993, the attacks on our embassies in Kenya and Tanzania, the punctiliously correct trials of defendants in connection with those incidents, and the bombing of the USS Cole took place long before the advent of CIA interrogations, the invasion of Saddam Hussein’s Iraq, or the many other purported grievances asserted over the past eight years.

The effect of this disclosure on the morale and effectiveness of many in the intelligence community is not hard to predict. Those charged with the responsibility of gathering potentially lifesaving information from unwilling captives are now told essentially that any legal opinion they get as to the lawfulness of their activity is only as durable as political fashion permits. Even with a seemingly binding opinion in hand, which future CIA operations personnel would take the risk? There would be no wink, no nod, no handshake that would convince them that legal guidance is durable. Any president who wants to apply such techniques without such a binding and durable legal opinion had better be prepared to apply them himself.

Beyond that, anyone in government who seeks an opinion from the OLC as to the propriety of any action, or who authors an opinion for the OLC, is on notice henceforth that such a request for advice, and the advice itself, is now more likely than before to be subject after the fact to public and partisan criticism. It is hard to see how that will promote candor either from those who should be encouraged to ask for advice before they act, or from those who must give it.

In his book “The Terror Presidency,” Jack Goldsmith describes the phenomenon we are now experiencing, and its inevitable effect, referring to what he calls “cycles of timidity and aggression” that have weakened intelligence gathering in the past. Politicians pressure the intelligence community to push to the legal limit, and then cast accusations when aggressiveness goes out of style, thereby encouraging risk aversion, and then, as occurred in the wake of 9/11, criticizing the intelligence community for feckless timidity. He calls these cycles “a terrible problem for our national security.” Indeed they are, and the precipitous release of these OLC opinions simply makes the problem worse.

Gen. Hayden was director of the Central Intelligence Agency from 2006 to 2009. Mr. Mukasey was attorney general of the United States from 2007 to 2009.

See also:
Former Bush officials slam release of torture memos
Four CIA chiefs said ‘don’t reveal torture memos’
CIA objections slowed torture memos release
“On a bright, sunny, safe day in April 2009.”

So, what horrible torture techniques were contained in these memos that justified their public release, thereby tying the CIA’s hands behing their back and pulling their pants down around their ankles?

10 CIA torture tactics revealed

The 10 terror techniques

1. Attention grasp

Grasping the suspect with both hands – one hand on each side of the collar opening – in one quick motion. In the same motion, the suspect is pulled towards the interrogator.

2. Walling

The interrogators construct a flexible false wall, but do not tell the suspect it is fake. The individual is then placed with his or her heels touching the wall. The suspect is then pulled forward, and then quickly pushed back against the wall.

It is designed so that the suspect’s shoulder blades hit the wall. The individual’s neck is supported to stop whiplash.

The suspect is allowed to rebound off the wall – which makes a loud noise. The theory is that the noise will cause the suspect to think they are being harmed, when in fact no damage is being done.

3. Facial hold

One open palm is placed on either side of the suspect’s face – to keep their head immobile. The fingertips are kept away from the individual’s eyes. It is designed to intimidate.

4. Insult slap

The interrogator slaps the suspect’s face, with fingers slightly spread. The slap is aimed for the area between the chin and the ear. The aim of the slap is not to cause long-lasting pain, but to shock, surprise or humiliate.

5. Cramped confinement

The suspect is placed in a dark and confined space. Confinement in a larger space can last up to 18 hours, in a smaller space it is supposed to be less than two hours.

6. Wall standing

Used to induce muscle fatigue. The suspect stands about four or five feet from the wall, with his feet spread approximately to shoulder width. Arms are stretched out in front of them, with fingers resting on the wall. The fingers support all the body weight, and they are not allowed to move.

7. Stress positions

A variety of positions may be used, such as sitting on the floor with legs extended straight out in front with arms raised above the head. Again, they are designed to create the physical discomfort of muscle fatigue.

8. Sleep deprivation

Used to reduce the suspect’s ability to think on their feet, create discomfort, and encourage them to cooperate. The CIA was asking for this to happen for up to 11 days.

9. Insects placed in a confinement box

The suspect is placed in a confined space with a seemingly lethal insect. They are told is it lethal, even though it is actually harmless.

Strangely, the CIA had indicated that they wished to place Zubaydah in confinement with a caterpillar, as he appeared to have a fear of such creatures.

10. Waterboarding

The individual is bound securely to a bench, with their feet elevated. A cloth is placed over the forehead and eyes.

Water is then poured on the cloth, and the cloth itself is lowered to cover the mouth and nose.

Air flow is then restricted for up to 40 seconds at a time; this causes an increase in carbon dioxide in the individual’s blood. It is designed to simulate suffocation and panic.

Nevermind that all these interrogation techniques were conducted under close medical supervision, but none of them even constitute “torture”, which used to be defined as something that causes lasting physical or psychological harm. Furthermore, besides the heinous “caterpillar torture”, which one of these techniques is something new that wasn’t already publicly exposed over the last several years? And since all these techniques were already publicly known, what was the point of releasing the memos, over the objections of CIA professionals, other than to give aid and comfort to the enemy and officially confirm for them exactly what interrogation techniques we will or will not use and how far we’ll go in using them?

You want to see what torture really is? Do five minutes of research on the techniques our enemies use; electric drills, pulling off body parts, burning, cutting, mutilation, etc., etc., that’s torture. Being put in a box with caterpillars is not torture and promising to refrain from it and pulling the CIA’s pants down around their ankles for even thinking about “caterpillar torture” will not convince our enemies to put down their Black & Deckers.

Caterpillar torture, are you [expletive deleted] kidding me? That’s not torture, it’s comedy gold! What’s next, the Comfy Chair?

/no one expects the Caterpillar Inquisition, until now!