BUSH'S TYRANNY

rt, USA

The Torture Tape Cover-up

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© 2007 - Ben Heine
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How High Does It Go?
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By Marjorie Cohn (*)
MWC News

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When the hideous photographs of torture and abuse emerged from Abu Ghraib in the spring of 2004, they created a public relations disaster for the Bush administration. The White House had painstakingly worked to capitalize on the 9/11 attacks by creating a "war on terror." Never mind the absurdity of declaring war on a tactic. Central to Bush's new "war" was the portrayal of us as the good guys and al Qaeda, the Taliban, and Saddam Hussein as the bad guys.

But the Abu Ghraib photos of naked Iraqis piled on top of one another, forced to masturbate, led around on leashes like dogs shined the light on U.S. hypocrisy.

After the Abu Ghraib revelations, the Bush administration could not tolerate more bad publicity. So in 2005, the CIA destroyed several hundred hours of videotapes depicting torturous interrogations of Abu Zubaydah and Abd al-Rahim al-Nashiri, probably including water boarding. The former U.S. official involved in discussions about the tapes reported widespread concern that "something as explosive as this would probably get out," according to the Los Angeles Times. This destruction of evidence may violate several laws. And it remains to be seen how high up the chain of command the criminality goes.

Now that the videotape scandal has come to light, Bush and his men are back in damage control mode. CIA Director Michael Hayden minimized the significance of the destruction, claiming the tapes were destroyed "only after it was determined they were no longer of intelligence value and not relevant to any internal, legislative or judicial inquiries." These claims are disingenuous.
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The tapes likely portray U.S. officials engaged in torture, which violates three U.S.-ratified treaties as well as the U.S. Torture Statute and the War Crimes Act.

Bush justifies his administration's "harsh interrogation techniques" by maintaining that Zubaydah, under interrogation, fingered Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks. But according to investigative journalist Ron Suskind in his 2006 book One Percent Doctrine, it was a "walk-in" who led the CIA to Mohammed in return for a $25 million reward.

Zubaydah evidently wasn’t a top al Qaeda leader. Dan Coleman, one of the FBI's leading experts on al Qaeda, said Zubaydah "knew very little about real operations, or strategy." Moreover, Zubaydah was schizophrenic, according to Coleman. “This guy is insane, certifiable split personality." Coleman's views were echoed at the top levels of the CIA and were communicated to Bush and Cheney. But Bush scolded CIA director George Tenet, saying, "I said [Zubaydah] was important. You're not going to let me lose face on this, are you?" Zubaydah's minor role in al Qaeda and his apparent insanity were kept secret.

In response to the torture, Zubaydah told his interrogators about myriad terrorist targets al Qaeda had in its sights: the Brooklyn Bridge, the Statute of Liberty, shopping malls, banks, supermarkets, water systems, nuclear plants, and apartment buildings. Al Qaeda was close to building a crude nuclear bomb, Zubaydah reported. None of this was corroborated but the Bush gang reacted to each report zealously.

The Supreme Court has repeatedly affirmed the government's duty to provide criminal defendants with any evidence in the government's possession that might tend to exonerate the defendant or impeach the prosecutor's case. Zacarias Moussaoui tried to subpoena Zubaydah to testify at his trial. On May 9, 2003, Assistant U.S. Attorneys David Novak and David Raskin lied to U.S. District Court Judge Leonie Brinkema, who presided over Moussaoui's trial. When the judge asked "whether the interrogations are being recorded in any format"?, the U.S. Attorneys, evidently relying on information from the CIA, said "No." This is obstruction of justice.

When Zubaydah and al-Nashiri go before the military commissions, they will undoubtedly raise their torture as a defense to whatever crimes they face. Yet the evidence of that torture has been destroyed by the government.
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There was no way of knowing whether these tapes could have intelligence value in the future. Indeed, the government defied the 2003 and 2004 demands of the 9/11 Commission by failing to turn over the videotaped interrogations. Now the CIA is parsing words by claiming the commission never directly asked for videotapes. "We asked for every single thing they had," commission co-chairman Thomas Kean said. "And then my vice chairman, Lee Hamilton, looked the director of the CIA in the face, and said, 'Look, even if we haven't asked for something, if it's pertinent to our investigation, make it available to us.'" Hamilton said the CIA "clearly obstructed" the commission's investigation.

At the same time the 9/11 Commission was denied the tapes, the ACLU filed Freedom of Information Act requests seeking records of the treatment of all detainees held in U.S. custody abroad since 9/11. When the government refused to comply with the FOIA requests, the ACLU sued in federal court in New York. On September 15, 2004, U.S. District Court Judge Alvin Hellerstein ordered the CIA and other government agencies to "produce or identify" all requested documents within one month. They are still not forthcoming. The ACLU has filed a motion to hold the CIA in contempt of court for refusing to comply with Judge Hellerstein's order.

When the destruction of the tapes became public, both the House and Senate intelligence committees opened investigations, and subpoenaed witnesses and documents to shed light on the matter. Attorney General Michael Mukasey refused to cooperate and tried to put the kabosh on the congressional probes, asking them to wait until he had finished his own internal investigation. But after criticism in the media, the CIA relented and agreed to produce documents and the testimony of acting CIA general counsel John Rizzo.

The decision to destroy the tapes was allegedly made by Jose A. Rodriguez Jr., who was chief of the Directorate of Operations, the CIA's clandestine service. Although the House intelligence committee has subpoenaed Rodriguez, there is no indication his bosses will allow him to testify.
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The Sunday Times (London) reported that Rodriguez may seek immunity from prosecution in exchange for testifying before the House intelligence committee. Rodriguez's testimony could be explosive.

At least four top White House lawyers participated in discussions with the CIA between 2003 and 2005 about whether to destroy the videotapes. They included Alberto Gonzales, David Addington (Cheney's former counsel, now his chief of staff), Harriet Miers, and John Bellinger (former senior attorney at the National Security Council). The New York Times quoted a former senior intelligence official as saying there was "vigorous sentiment" among some high White House officials to destroy the tapes.

Two former CIA officials, Vincent Cannistrano and Larry Johnson, think it highly unlikely Rodriguez made the decision to destroy the tapes on his own. George W. Bush "has no recollection" of hearing about the existence or destruction of the tapes before Hayden briefed him on December 13. Yet given Bush's keen interest in Zubaydah's interrogation, it seems more likely the President was involved with the decision to destroy the tapes.

During his Senate confirmation hearing, Michael Mukasey refused to opine about whether water boarding constitutes torture. Mukasey knew the Bush administration had admitted water boarding prisoners, and that torture is a war crime under the U.S. War Crimes Act. Mukasey was shielding his future bosses from criminal liability as war criminals. Now the Department of Justice, under Mukasey, is investigating the destruction of the tapes.

Justice Department regulations call for the appointment of an outside special counsel when (1) a criminal investigation of a person or matter is warranted, (2) the investigation or prosecution of that person or matter by a United States Attorney's Office or litigating division of the Department of Justice would present a conflict of interest for the Department, and (3) under the circumstances it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter. When these three conditions are satisfied, the attorney general must select a special counsel from outside the government. (28 C.F.R. 600.1, 600.3 (2007).)

When he was a federal judge, Michael Mukasey issued the material witness warrant for Jose Padilla. The warrant was based partly on information from Abu Zubaydah. It is not clear whether Mukasey knew Zubaydah's statements were obtained by torture. But since he issued the warrant, Mukasey has a real or apparent conflict of interest. He has said it is premature to appoint an outside special counsel. But like the Nixon administration, the Department of Justice cannot be trusted to investigate itself. Congress should be pressured to pass a new independent counsel statute.

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(*) Marjorie Cohn, MWC News Magazine senior editor, is a professor at Thomas Jefferson School of Law, president of the National Lawyers Guild, and the US representative to the executive committee of the American Association of Jurists. Her new book, Cowboy Republic: Six Ways the Bush Gang Has Defied the Law is published by PoliPointPress. Visit her web site at: http://www.marjoriecohn.com/ Other articles by this author

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.BUSH'S TYRANNY

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Bush’s Tyranny Thwarted,
For Now

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By Sheldon Richman (*)
MWC News
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The news media seemed too preoccupied with Paris Hilton’s detention to notice, but a U.S. appeals court in June struck a major blow for liberty. A three-judge panel of the U.S. Fourth Circuit Court of Appeals ruled that the Bush administration may not declare a U.S. resident — whether a citizen or not — an “enemy combatant,” throw him in a military prison, and hold him without charge indefinitely — all without judicial review. Try him in the civilian courts or let him go, the judges said.
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This double affirmation of habeas corpus and defendants’ rights is a stunning setback for President Bush’s attempt to assert autocratic powers under cover of his “war on terror.”

The government alleges that Ali Saleh Kahlah al-Marri, a married student at Bradley University in Peoria, Illinois, and a citizen of Qatar (a country with which the administration is not at war), is an al-Qaeda “sleeper agent” who volunteered for a “martyr mission” in the United States. He was initially charged with criminal possession of credit-card numbers and making false statements to the FBI and on bank forms. But when he asked the court to suppress evidence on grounds he was tortured, the administration moved to dismiss the charges, declared him an “enemy combatant,” and put him in a naval brig.

“Even assuming the truth of the Government’s allegations, the President lacks power to order the military to seize and indefinitely detain al-Marri,” Judge Diana Gribbon Motz wrote in the 2-1 majority opinion. “If the Government accurately describes al-Marri’s conduct, he has committed grave crimes. But we have found no authority for holding that the evidence offered by the Government affords a basis for treating al-Marri as an enemy combatant, or as anything other than a civilian.”

The decision is important because the Military Commissions Act, passed last year, purported to abolish habeas corpus for “aliens.” The court said, however, that that provision applies not to civilians living in the United States, but only to detainees at Guantanamo Bay, Cuba, who were apprehended in Afghanistan and other foreign locations. Thus, unfortunately, the status of those who are merely suspects at Guantanamo was left unchanged. But the ruling is important nonetheless.

“Congress,” the court said, “sought ... to preserve the rights of aliens like al-Marri, lawfully residing within the country with substantial, voluntary connections to the United States, for whom Congress recognized that the Constitution protected the writ of habeas corpus.”

The administration does not assert that al-Marri:

(1) is a citizen, or affiliate of the armed forces, of any nation at war with the United States; (2) was seized on or near a battlefield on which the armed forces of the United States or its allies were engaged in combat; (3) was ever in Afghanistan during the armed conflict between the United States and the Taliban there; or (4) directly participated in any hostilities against United States or allied armed forces.

Thus al-Marri can’t be an enemy combatant, and the Bush administration has no constitutional or statutory power to declare him one. That is no small matter.

As the court stated,

For in the United States, the military cannot seize and imprison civilians — let alone imprison them indefinitely.... To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the president calls them “enemy combatants,” would have disastrous consequences for the Constitution — and the country.

Habeas corpus and Magna Carta

The importance of the centuries-old, hard-won principle of habeas corpus as a bulwark against tyranny cannot be exaggerated — for what good is a bill of rights if those whom the government imprisons may not publicly contest their detention? Isn’t the absence of habeas corpus a defining characteristic of despotism?

By coincidence, the court ruling came down the very week of the 792nd anniversary of Magna Carta, one of the first legal documents in the Western legal tradition. On June 15, 1215, at Runnymede on the River Thames in England, English barons forced King John at sword’s edge to sign a charter of freedoms. Most fundamentally, it established that the power of the crown could be limited by law.

In The Enterprise of Law: Justice without the State, Bruce L. Benson writes,

The king’s drive for revenues and power caused considerable discontent, particularly during John’s reign. In 1215, powerful barons renounced their homage to the king and revolted, demanding a document that would specify the laws and customs that would govern them. On June [15], 1215, John put his seal on the Magna Carta, which is widely perceived as a significant foundation of Anglo-American constitutional government.

As Benson notes, the barons were not trying to establish rights for all people. “In fact,” he writes,

the charter reflected an effort by barons and other powerful groups (e.g., the English Church) to regain their power and privilege that kings subsequent to Henry I had been eroding.

But actions often have large unintended consequences. What the barons established for themselves undoubtedly planted thoughts in others and took on a life of their own. If barons have rights against the king, why not other people?

Among the rights enumerated in Magna Carta was this:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

This has been regarded as the germ of habeas corpus, although writs that amounted to the same thing date back to the 12th century. In the 17th century the issuing of writs of habeas corpus was formalized by Parliament.

The U.S. Constitution acknowledges habeas corpus in Article 1, Section 9:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion, the public Safety may require it.

Article 1, of course, is where the powers of Congress are enumerated. The president has no power to suspend the writ. Nevertheless, in 1861 Abraham Lincoln did so to quell anti-war and anti-Union activity. The U.S. Circuit Court in Maryland, a border state that had threatened to secede, ruled against Lincoln in the case of the imprisonment of John Merryman, a Maryland cavalry officer. U.S. Chief Justice Roger B. Taney, sitting as a circuit-court judge at the time, wrote the ruling. He said,

These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.

But Taney had no one to enforce his writ. The army backed Lincoln, and the commander at Fort McHenry refused to release the prisoner, who spent seven weeks in Fort McHenry before being set free. Two years later Congress effectively ratified Lincoln’s action. Jefferson Davis also suspended habeas corpus in the Confederate States.

The al-Marri case is far from over. The Bush administration has asked the full appeals court to hear the case, and whatever happens there, it will most likely go to the U.S. Supreme Court, where anything is possible. We can only hope the government’s appeal will fail.

Meanwhile the U.S. Supreme Court has changed its mind and decided to hear a challenge by the Guantanamo detainees, who have been denied access to the courts by the Military Commissions Act. This could mean another pro-freedom ruling is in the offing. But let’s not count our chickens.

Some find it tempting to relax the traditional protections of the accused in “exceptional” cases. But it’s worth reminding ourselves that preventing tyranny requires us to resist that temptation — especially in such cases.