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Obama Orders Release of "Torture Memos":

President Obama has decided to release OLC "torture memos" drafted between 2002 and 2005. In his statement (reproduced here), he cited "exceptional circumstances" justifying the memos' release (reportedly over the objection of some intelligence officials). He also said that those who relied upon the memos "in good faith" would not be prosecuted for their actions.

In releasing these memos, it is our intention to assure those 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. 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.

Going forward, it is my strong belief that the United States has a solemn duty to vigorously maintain the classified nature of certain activities and information related to national security. This is an extraordinarily important responsibility of the presidency, and it is one that I will carry out assertively irrespective of any political concern. Consequently, the exceptional circumstances surrounding these memos should not be viewed as an erosion of the strong legal basis for maintaining the classified nature of secret activities. I will always do whatever is necessary to protect the national security of the United States.

Related Posts (on one page):

  1. Definitions and defaults in torture:
  2. The Torture Memos:
  3. Obama Orders Release of "Torture Memos":
Assistant Village Idiot (mail) (www):
Well, he has come down squarely on both sides, then.
4.16.2009 4:05pm
Cityduck (mail):
I applaud Obama's dedication to the rule of law and democratic process by releasing these policy and legal analysis memos. They should never have been secret. I also applaud the balance he strikes with his statement, because he is absolutely right that we need to keep our intelligence assets and sources secret.
4.16.2009 4:05pm
MarkField (mail):
I'm not particularly in favor of prosecuting those who carried out torture which, they were assured, was legal. I'd rather go after those who authorized it, though there could be egregious cases in which the torturers themselves should be prosecuted. We saw enough of the "round up the usual suspects" justice in the Abu Ghraib case.

That said, I have no idea what the President is referring to when he says "Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer." If this refers to those who did NOT torture, then fine. If it refers to those who did -- and in context that seems like the natural meaning -- then this sentence is appalling.
4.16.2009 4:06pm
A Law Dawg:
Appalling, maybe, but necessary politics, definitely.
4.16.2009 4:08pm
Anon321:
I think he's just referring to "[t]he men and women of our intelligence community" generally. That is, he's acknowledging that their work keeps Americans safer, which is true irrespective of the misdeeds that some of them appear to have committed.
4.16.2009 4:10pm
Michael Ejercito (mail) (www):

"Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer."

Who is they ?
4.16.2009 4:10pm
Cityduck (mail):

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.


I have no trouble understanding those two lines to be a nod to the "men and women of our intelligence community," not to torturers.
4.16.2009 4:11pm
Constantin:
Well, I sure hope nobody in the federal government writes anything down on paper in the next four or eight years that might show Barack in a poor light. Because I can guarantee you that, as of today, the next GOP president will be under extraordinary pressure to release that stuff for the world to see.
4.16.2009 4:12pm
Anderson (mail):
The memos are here.
4.16.2009 4:14pm
Connecticut Lawyer (mail):
Who cares?
4.16.2009 4:16pm
Cornellian (mail):
So Constantin, you expect the memos to reflect badly on certain Bush administration officials? Why would you think that?
4.16.2009 4:16pm
rick.felt:
That said, I have no idea what the President is referring to when he says "Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer." If this refers to those who did NOT torture, then fine. If it refers to those who did -- and in context that seems like the natural meaning -- then this sentence is appalling.

Don't be coy. You know exactly what he's doing.

This is Obama's signature move. It's a form of the standard Obama Moderation Cliche: "There are those who say this does too much; others say it does too little. They are both wrong." Or "I reject the false choice between X and Y."

Here, it's "I reject the false choice between saying torture is proper and saying that torturers haven't accomplished good for our country." Or perhaps it's "There are those who say that we should continue these practices. Others say we should punish those who engage in them. They're both wrong."

It may be politically shrewd. It may even be the right thing to do. But it's the Obama Moderation Cliche, and you should recognize it by now.
4.16.2009 4:17pm
Constantin:
Also, was there anything in Barack's statement condemning politicians who approved rendition to foreign countries where (actual) torture was certain or presumed?

Or anything to the effect that he would resign the office of the presidency if any one of the techniques authorized by the memos, and thus repudiated by Barack himself per the memos' release, is carried out while he is charge? Because best I can tell, he left himself room earlier to do whatever he wanted if he decided he wants to.
4.16.2009 4:20pm
Constantin:
So Constantin, you expect the memos to reflect badly on certain Bush administration officials? Why would you think that?

Nope. (You must not have done so hot on those LSAT logic questions.) And Nancy Pelosi's agrees with me. Or at least she used to.
4.16.2009 4:25pm
Anderson (mail):
Glancing through ... sleep deprivation up to 180 hours approved. The sensation of being drowned is not "suffering," just "simply a controlled acute episode."

Lots of claims of valuable intel from KSM and Zubaydah after torture, some of which I can already tell are b.s., some of which is redacted, some of which I dunno. This is going to be one of the big areas of discussion, I suspect.

Forced standing does not produce "suffering." Indeed.
4.16.2009 4:27pm
Anderson (mail):
This is Obama's signature move. It's a form of the standard Obama Moderation Cliche: "There are those who say this does too much; others say it does too little. They are both wrong." Or "I reject the false choice between X and Y."

True enough.

I especially love the part about how prosecutions are not the way to prevent this from happening again. Which is why Hermann Goering et al. died of old age at their retirement villas.
4.16.2009 4:28pm
Wahoowa:
I agree with Constantin in that this move makes it much more difficult for President Obama (and future presidents, for that matter) to receive frank, honest, helpful advice from his aides. That is the logic of executive privilege--if presidential aides and other executive branch employees know their opinions will some day be out there for public consumption they are much more likely to give politically correct/convenient advice than to fully analyze a situation from all angles and give honest/their best advice.

And there really is no principled way to distinguish between the memos released here and the memos folks in the Transportation Dep't are writing on high speed rail or some DOJ memo about military pay, etc. When a president decides to release politically sensitive memos from previous administrations, it sets a dangerous precedent that hurts not only himself but the country at large because it damages all presidents' abilities to receive the best possible advice from the best possible sources.
4.16.2009 4:32pm
Oren:


Or anything to the effect that he would resign the office of the presidency if any one of the techniques authorized by the memos, and thus repudiated by Barack himself per the memos' release, is carried out while he is charge?

Releasing a memo is the same as repudiating the methods described therein?

What if a President came up and said "I think torture is appropriate in extraordinary (i.e. KSM) situations and I also think we should release the memos explaining my authority to order that sort of thing."
4.16.2009 4:33pm
Anderson (mail):
And there really is no principled way to distinguish between the memos released here and the memos folks in the Transportation Dep't are writing on high speed rail or some DOJ memo about military pay, etc.

... [nonplus]

High speed rail ... evading the letter and spirit of the Torture Act ... "no principled way to distinguish"?

What are these "principles" of which you speak? Because we seem to understand something different by the term.
4.16.2009 4:34pm
Anon321:
Glancing through ... sleep deprivation up to 180 hours approved.

Yes, but then they have to let the prisoner sleep for 8 hours. So, stay awake for 7 and a half days, then sleep for 8 hours, then repeat. That's basically just a modern adaptation of the "early to bed, early to rise" adage. Right?

Also, is the technique of identifying prisoners who are scared of insects and then confining them in a small space with an insect that they (erronesously) believe is stinging a new revelation? I don't recall having seen that one listed before.
4.16.2009 4:39pm
martinned (mail) (www):

What if a President came up and said "I think torture is appropriate in extraordinary (i.e. KSM) situations and I also think we should release the memos explaining my authority to order that sort of thing."


That's a crazy idea. That would never work.
4.16.2009 4:40pm
Oren:
We'll also get to see if the GOP Senators do, in fact, "go nuclear" over this. That should at least be entertaining ...
4.16.2009 4:44pm
Anderson (mail):
Also, is the technique of identifying prisoners who are scared of insects and then confining them in a small space with an insect that they (erronesously) believe is stinging a new revelation? I don't recall having seen that one listed before.

The funny part about that (funny strange, that is) was that in a relatively unredacted memo, the redactions clustered around that particular technique. Spoooooky.
4.16.2009 4:47pm
Allen Asch (mail) (www):
FYI, the memos are available on the ACLU's website at: http://www.aclu.org/safefree/general/olc_memos.html
4.16.2009 4:50pm
Oren:
Interrogators not to be charged, says Obama.


...if presidential aides and other executive branch employees know their opinions will some day be out there for public consumption they are much more likely to give politically correct/convenient advice than to fully analyze a situation from all angles and give honest/their best advice.

If giving their honest and best advice requires it never to be revealed, I have serious doubts about that advice in the first place. That is to say, I don't trust any man's statements that he won't public acknowledge as his own.
4.16.2009 4:51pm
JoeSixpack (mail):
"Since Obama took charge he has not shown us that anything will change."

4.16.2009 4:52pm
Lior:
Are ordinary citizens who act relying in good faith on reasonable legal advice also normally exempted from prosecution?
4.16.2009 4:53pm
Constantin:
Eric Holder on govt transparency:

Intel community, including CIA director, want memos implicating national security to remain confidential = RELEASE

OLC memo on constitutionality of giving a congressional seat to D.C. might make me look like the political hack I am = KEEP CONFIDENTIAL

This is all pointless anyway. Barack will be roughing up terrorists one way or another before the year is out, if it hasn't happened already. As I've written before, if we were to get attacked and it comes to light that we could have stopped it by making a terrorist stand up for eight hours, and we didn't, Barack will be lucky to get away with just being impeached. He knows that. That's what makes this charade today so cowardly.
4.16.2009 4:54pm
Cityduck (mail):

I agree with Constantin in that this move makes it much more difficult for President Obama (and future presidents, for that matter) to receive frank, honest, helpful advice from his aides. That is the logic of executive privilege--if presidential aides and other executive branch employees know their opinions will some day be out there for public consumption they are much more likely to give politically correct/convenient advice than to fully analyze a situation from all angles and give honest/their best advice.


I think you have that backward. Attorneys do their best work when they know that it will be scrutinized and challenged. And that challenge can come not just from their client's opponent, but the client itself. Which is one reason attorneys never forget that their work is only privileged so long as their client desires to keep it so. Attorneys who commit malpractice may not invoke work product or attorney-client privilege to preclude use of embarassing memos. That's a powerful incentive to ensure you do your best work in answering your clients questions, not just tell your client what you think the client wants to hear.
4.16.2009 4:55pm
Oren:

Are ordinary citizens who act relying in good faith on reasonable legal advice also normally exempted from prosecution?

If the company lawyers advise me X, the company is estopped from later suing from for X. If the DOJ advises me Y, the DOJ ought to be estopped from prosecuting me for Y.
4.16.2009 4:55pm
PersonFromPorlock:
Oren:

We'll also get to see if the GOP Senators do, in fact, "go nuclear" over this. That should at least be entertaining ...

Sigh. If they do, they'll probably single-point.
4.16.2009 4:57pm
ruuffles (mail) (www):

As I've written before, if we were to get attacked and it comes to light that we could have stopped it by making a terrorist stand up for eight hours, and we didn't, Barack will be lucky to get away with just being impeached.

Oh really now? If we were to get attacked and it came to light that we could have stopped it by following up on a memo a month earlier titled "Bin Laden Determined to Strike in US" instead of doing a political stunt with stem cells, George will be lucky to get away with just being impeached. Instead, George gets re-elected. By the way, I enjoy 24 as much as the next guy, but in case you haven't noticed, it's a TV show.
4.16.2009 4:59pm
A.S.:
Waterboarding only approved if:
(a) CIA has credible intelligence that a terrorist attack is imminent
(b)substantial and credible indicators that the subject has actionable intelligence that can prevent, disrupt, or delay the attack, and
(c) other interrogations methods have failed to elicit the information or CIA has clear indications that other interrogations methods are unlikely to elicit the information within the perceived time limit for preventing the attack.

Interesting. It looks like waterboarding was approved in ticking time bomb scenarios. It looks like everyone who said those scenarios are BS will have to eat their words.
4.16.2009 5:03pm
rick.felt:
If we were to get attacked and it came to light that we could have stopped it by following up on a memo a month earlier titled "Bin Laden Determined to Strike in US" instead of doing a political stunt with stem cells, George will be lucky to get away with just being impeached.

Someone will need to connect the dots for me between the "Bin Laden Determined to Strike in US" memo and concrete steps that could have stopped the 9/11 attacks. Because if a memo titled "Bin Laden Determined to Strike in US" hit my desk, I would be as surprised as if it were a memo titled "Bears Determined to Crap in Woods."

I also imagine that, had 9/11 been stopped, we'd be hearing a lot of guffawing from the left about "right-wing paranoia and racism" and "the ludicrous idea that you can hijack an airliner with a box-cutter."
4.16.2009 5:07pm
Oren:


Interesting. It looks like waterboarding was approved in ticking time bomb scenarios. It looks like everyone who said those scenarios are BS will have to eat their words.


Ticking time bomb seems to imply a very concrete and specific threat, so I'll eat my words just as soon as I'm told what specific attack was prevented. It's been 5+ years, that intelligence cannot possibly be sensitive anymore.
4.16.2009 5:08pm
sureyoubet:
" ... sleep deprivation up to 180 hours approved. "

This is a memo to partners at name-your-big-firm on how long to work associates?
4.16.2009 5:08pm
martinned (mail) (www):

It looks like everyone who said those scenarios are BS will have to eat their words.

Hardly. Part of the problem with the Bush administration was that they thought 24 was real. (Even before that show first aired...) In the immediate aftermath of 9/11 everyone was justifiably uncertain, but the Bushies continued to approach the WoT as if airplanes were falling left and right throughout his first administration, if not longer. That's why they did so many evil things, essentially they overreacted.
4.16.2009 5:08pm
dr:

It looks like everyone who said those scenarios are BS will have to eat their words.


Why? I mean, what's the logical link there? I think the ticking time bomb scenarios are pretty much BS -- if the clock is ticking, a terrorist has a fantastic incentive to give us false information to slow down our efforts. How does the idea that the memos reserved waterboarding for those scenarios make those scenarios any more legitimate?

Please clarify what you mean by the above -- as I say, the logical link isn't clear.
4.16.2009 5:09pm
Anderson (mail):
TPM headline: "Torture Memo: As Long As You Don't Keep The Guy Awake For More Than 11 Days, It's Fine."

It looks like everyone who said those scenarios are BS will have to eat their words.

A.S., that will surely be the silliest thing I've read today that *wasn't* in an OLC memo.

Because the CIA *claims* they have a "ticking bomb," it's therefore an article of faith that they did in fact have such a situation?

... Btw, connoisseurs of the subject will note the creep upwards in the treatment allowed b/t the 2002 and 2005 memos. The 2002 memo discussed sleep deprivation up to, it seems, 72 hours.
4.16.2009 5:12pm
Constantin:
Oh really now? If we were to get attacked and it came to light that we could have stopped it by following up on a memo a month earlier titled "Bin Laden Determined to Strike in US" instead of doing a political stunt with stem cells, George will be lucky to get away with just being impeached. Instead, George gets re-elected. By the way, I enjoy 24 as much as the next guy, but in case you haven't noticed, it's a TV show
That didn't take long. You might note that you're not the first guy to be a little upset about the UBL memo. Now, being on notice post-9/11, with a president perceived by many to be weak on national security anyway, don't you think that ire might be multiplied just a bit if the anything like the scenario I outlined actually happens?

And re the 24 reference...For all of Barack's talk about not torturing, he still left himself an out to do whatever he wants in extraordinary circumstances in that executive order. Jack Bauer couldn't have written it any better.
4.16.2009 5:12pm
Anderson (mail):
I also imagine that, had 9/11 been stopped, we'd be hearing a lot of guffawing from the left about "right-wing paranoia and racism" and "the ludicrous idea that you can hijack an airliner with a box-cutter."

Interesting, as I'm sure your imagination always is.
4.16.2009 5:13pm
Props:
I find it ironic that many of the leftists now calling for the prosecution of Bush officials to hold them accountable for what they see as past transgressions and as a deterrent to prevent future transgressions are the same folks who've never come across a prisoner they thought shouldn't be released. To them, the drug dealers, rapists, and murderers should be set free, but Bush officials should be locked up.

And if prosecutions ever occurred, many of the same judges who've never seen an AEDPA case where they didn't think the State courts got it wrong or a sentencing case where the sentence wasn't too harsh, would be eager to affirm convictions of the Bush officials.

I just wish they'd quit hiding behind fictitious moral outrage and acknowledge that its purely political. At least that would be honest.
4.16.2009 5:14pm
ruuffles (mail) (www):

Someone will need to connect the dots for me

Oh I don't know, maybe by beefing up airplane security and security at sensitive buildings on NYC. For airplane security, they could have just looked to our BFF Israel. You don't need to think boxcutters, just that someone would want to access the cockpit.

http://www.thesmokinggun.com/archive/0409041pdb2.html
4.16.2009 5:14pm
Anderson (mail):
Oh, and my bad, I now see that the sleep-deprivation time in 2002 and 2005 was the same.

Think I saw some other examples of torture creep, but I'll be more careful checking those now.
4.16.2009 5:14pm
Anderson (mail):
I find it ironic that many of the leftists now calling for the prosecution of Bush officials to hold them accountable for what they see as past transgressions and as a deterrent to prevent future transgressions are the same folks who've never come across a prisoner they thought shouldn't be released.

???

Name one such "leftist," please. Let alone "many."

Another example of how torture supporters simply Make. Shit. Up. Tells us a lot about the Ann-Coulter fantasy universe they live in, at least.
4.16.2009 5:16pm
A.S.:
Because the CIA *claims* they have a "ticking bomb," it's therefore an article of faith that they did in fact have such a situation?

It's not based merely on a CIA "claim". Rather, the CIA has to have "credible evidence" of an imminent terrorist attack.
4.16.2009 5:19pm
Anderson (mail):
Incidentally, tho I haven't gone back to check, these techniques are matching up very well with the ICRC report, which we were advised to recall was based on the victims' reports to the ICRC, and impliedly was therefore obvious disinformation.
4.16.2009 5:20pm
WTF:
We used insects to extract information...how does that not cause significant mental anguish. If you say to a high value prisoner..."I'm putting you in this cramped box with a non-lethal insect and if you want to get out just tell us what we want to know." Doesn't a resonable person think "oh crap they are putting a non-lethal but pain inducing insect in here that I can' see." Why would they think you are putting a fuzzy caterpillar instead of, say, a non-lethal but painful Brown Recluse Spider. Doesn't that meet some standard to causing mental anguish? Would someone, at that point, tell you a bunch of low level stuff or make some stuff up?

Wow...I am only left to wonder what else is left to drop...
4.16.2009 5:21pm
dr:

I find it ironic that many of the leftists now calling for the prosecution of Bush officials to hold them accountable for what they see as past transgressions and as a deterrent to prevent future transgressions are the same folks who've never come across a prisoner they thought shouldn't be released.
...
I just wish they'd quit hiding behind fictitious moral outrage and acknowledge that its purely political. At least that would be honest.



I see Anderson beat me to it, but I too would like some names. These people sound despicable. Unless of course, you're just hiding behind fictitious moral outrage.
4.16.2009 5:21pm
martinned (mail) (www):
@A.S.: The existence of this memo doesn't mean the situation ever came up in the manner proposed. In addition: credible to whom?

@Anderson: I have to say, people who prevent disaster usually don't get the credit they deserve. (That's why my fellow economists always get ridiculed for predicting 11 of the last 8 recessions, instead of getting credit for preventing the other 3.)
4.16.2009 5:22pm
Anderson (mail):
Rather, the CIA has to have "credible evidence" of an imminent terrorist attack.

Oh good lord. Let me fetch the crayons.

WHO decided WHETHER the CIA had "credible evidence"?

(1) CIA itself?

(2) Condi and Colin and Donald sitting around a table?

(3) David Addington?

(4) An independent judicial magistrate, relying on sworn testimony?

Hint: you can exclude one of the above choices.
4.16.2009 5:23pm
Anderson (mail):
I have to say, people who prevent disaster usually don't get the credit they deserve.

Well, sure. Few of us would even remember those wacky box-cutter guys now, if the plot had been foiled.

Tho if we're going to "imagine" whatever we like, I'd "imagine" some folks at PowerLine and RedState would be bitching about how stupid federal regulators had made it impossible to get on airlines, with all their silly searches.
4.16.2009 5:25pm
Anderson (mail):
WTF, the memo expressly states that Zubaydah, who was thought to be scared of insects, would be led to think that the insect was going to sting him.

That said, and noting the redactions in the memos, I'm going to go out on an limb and say that "bug in a box" was not a grave breach of Common Article 3.
4.16.2009 5:26pm
Props:
Anderson: How about Judge Reinhardt in the Ninth Circuit? Didn't he just recently recommend releasing 40% of the prisoners in California because the overcrowding violated their due process rights? You could also try taking a look at the Judges on the Sixth Circuit. Judges Martin, Merritt, and Clay are pretty far to the "left," and you'd have to look pretty hard for an AEDPA case or a substantive reasonableness sentencing case where they didn't side with the prisoner. And that's a sampling of federal judges, not the code pink types.

For the record, I am not a torture supporter just because I acknowledge that the release of these memos is a cause celebre for the left. I personally think that we should have an across-the-board "no torture" policy. If agents feel that exigent circumstances call for breaking that policy, then they should act as they see fit, own up to it, and then advance a defense of durress or necessity. Any sensible/honest prosecutor wouldn't bring the case. Nor would a jury convict.
4.16.2009 5:29pm
A.S.:
WHO decided WHETHER the CIA had "credible evidence"?

It looks like the Director, DCI Counterterrorist Center, and the Chief, CTC Legal Group.
4.16.2009 5:31pm
PLR:
Kind of busy today, no time for research. Someone please link to the "ticking bomb" exemptions under the federal anti-torture statute and Convention Against Torture. Thanks in advance.
4.16.2009 5:32pm
Terrivus:
Anderson: do you have a job? Or a hobby?
4.16.2009 5:32pm
Anderson (mail):
Anderson: How about Judge Reinhardt in the Ninth Circuit? Didn't he just recently recommend releasing 40% of the prisoners in California because the overcrowding violated their due process rights? You could also try taking a look at the Judges on the Sixth Circuit. Judges Martin, Merritt, and Clay are pretty far to the "left," and you'd have to look pretty hard for an AEDPA case or a substantive reasonableness sentencing case where they didn't side with the prisoner. And that's a sampling of federal judges, not the code pink types.

Okaaaayy ... which of those are "calling for prosecutions" of Bush-era officials re: torture, and which of them has *never* affirmed a criminal sentence?

Leaving aside the alleged merits of Reinhardt's order, he apparently finds 60% of CA's prisoners whom he thinks should *not* be released.

And while I'm not familiar with CA's prisons, are you implying that overcrowding is *never* cruel &unusual punishment (dunno where "due process" comes in)? At some point, surely at a density somewhat less than that of the Black Hole of Calcutta, it does ... right?

If CA wants to lock up thousands of people, then it has to spend money on keeping them in humane conditions. I hate it for 'em -- you here, Mark Field? -- but there you go.

(Not that Mississippi would ever keep prisoners in less than humane conditions.)
4.16.2009 5:34pm
dr:

How about Judge Reinhardt in the Ninth Circuit? Didn't he just recently recommend releasing 40% of the prisoners in California because the overcrowding violated their due process rights? You could also try taking a look at the Judges on the Sixth Circuit. Judges Martin, Merritt, and Clay are pretty far to the "left," and you'd have to look pretty hard for an AEDPA case or a substantive reasonableness sentencing case where they didn't side with the prisoner.


Uh huh. Okay, so we'll just chalk up your initial statement as wild hyperbole based on fantasy and move on. Fair enough? We've all done it at one point or another, and you did it just now.
4.16.2009 5:35pm
Anderson (mail):
Anderson: do you have a job?

Yes, but I'm not billing many hours on it this afternoon, it seems. Torture Memo Day! Whee!

It looks like the Director, DCI Counterterrorist Center, and the Chief, CTC Legal Group.

That would be "(1)" on my list. So, the people who decided whether CIA should torture people, were ... CIA.

Now: do you see any potential for abuse here? Any absence of the checks and balances normally considered appropriate in a free country?
4.16.2009 5:37pm
Constantin:
Question: In retrospect, was the August 2001 UBL memo an unrecognized ticking time bomb situation? Because the people who argue it was--the Moussaoui trial perhaps gives that allegation some validity, I think--seem to be the same ones arguing such scenarios don't exist except for when Kiefer Sutherland is involved.
4.16.2009 5:38pm
Litigator-London:
Having read the disclosed OLC Memoranda on the ACLU web site, I am shocked but not surprised.

Rarely do the goons who execute the procedures trouble to rationalise the procedures, any more than they care to observe any limits which may be set. But the public officials, those who give the orders, they seem to have some strange compulsion to document the precise modalities of the extermination/torture/inhuman and degrading treatment procedures to be meted out to the untermenschen who have fallen into government hands. Thus it was in the Third Reich, thus it was for some of the more disgraceful episodes of Britain's colonial past - not to mention the Vichy French or the administrators of the French IVth Republic during the Algerian insurrection.

All too rarely are those who give the orders brought to book. I don't suppose the USA will prove to be the exception to the general rule.
4.16.2009 5:42pm
PD Shaw (mail):
My prediction: The "bug in the box" stuff is going to ultimately dominate the popular discussion. It's just weird.

Second prediction: The memos will change nobody's mind about any of this stuff.

(I only sped-read the first memo though)
4.16.2009 5:44pm
A.S.:
That would be "(1)" on my list. So, the people who decided whether CIA should torture people, were ... CIA.

Now: do you see any potential for abuse here? Any absence of the checks and balances normally considered appropriate in a free country?

Sure, but this is not unusual. Who gets to decide who the Department of Treasury expends TARP funds on? The Department of Treasury. It doesn't seem to me helpful or feasible to try to have an Article III judge determine whether some particular interrogation techniques are "unlikely to elicit the information within the perceived time limit for preventing the attack". A judge has no way of determining that.
4.16.2009 5:46pm
Anderson (mail):
Btw, is TPM's math wrong, or mine?

I get 7.5 days w/out sleep, not 11.

In retrospect, was the August 2001 UBL memo an unrecognized ticking time bomb situation?

No. There was no specific evidence of a particular threat. The objection to Bush's treatment of the memo, IIRC, was that he didn't react at all to it. Telling CIA et al. to pool what they had and treat the matter as a top priority would've been nice. Cf. the 9/11 Report's quotation: "the lights were blinking red."

In general, I think taking Clinton and Clarke seriously would've been a really good idea for Bush, and maybe prevented 9/11, but I give the man some break for hindsight. It's Bush's errors after 9/11 that have endeared him to so many, not the failure to prevent 9/11.
4.16.2009 5:46pm
dr:

Second prediction: The memos will change nobody's mind about any of this stuff.


yup.
4.16.2009 5:46pm
Oren:

seem to be the same ones arguing such scenarios don't exist except for when Kiefer Sutherland is involved

The question is not whether they could exist, but whether in actuality they have existed. When the evidence is in, let me know.
4.16.2009 5:47pm
rosetta's stones:

That's a powerful incentive to ensure you do your best work in answering your clients questions, not just tell your client what you think the client wants to hear.


Cityduck, don't you think that's exactly what Barrack's lawyers are doing... telling him what he wants to hear? Release these torture memos... don't release the DC statehood memos?

Read that link Martinned provided above, about Jackson's memo to FDR about giving US naval destroyers to the Brits. Do you think that today we could/should sell so much as a single F-16 to a foreign nation without Congress' approval, let alone warships to a belligerent nation in an ongoing conflict? FDR's lawyer, Jackson, gave him the precise answer he wanted: You can do it all by yourself, big guy. (not to mention the foreign commitments/treaties he was making, absent Senate approval).

You ain't all clean, counselors, not in Washington anyways.
4.16.2009 5:48pm
Anderson (mail):
Sure, but this is not unusual.

It's *torture*. No one is being strapped to a table and having TARP funds poured over his face until he can't breathe.

(Though the idea is not completely without merit ... no, wait, must adhere to moral values.)

The attempt to involve the White House "principals group" shows that it was realized CIA couldn't be the sole judge ... but how did anyone at that table have any basis to argue with Tenet or Goss or whomever?
4.16.2009 5:49pm
Props:
Anderson and Dr: Recognizing that there was a measure of hyperbole in my statement--if for no other reason, because I don't have the time or care to expend the effort to identify a particular member of the "Not In My Name" or the "Free Mumia" crowd that literally holds the view in every instance--can we move on to my primary point? While there are legitimate bases for moral indignation that our government would take a legal position permitting torture in particular circumstances, does anyone honestly think that B.O. and the Dems calling for the release of these memos had anything other than the prospect of embarassing Bush in mind when they chose their position on this issue?
4.16.2009 5:52pm
A.S.:
I get 7.5 days w/out sleep, not 11.

My math is the same as yours.

I note that, at least as of 2005, only 3 persons were kept awake longer than 96 hours.
4.16.2009 5:54pm
MarkField (mail):

If CA wants to lock up thousands of people, then it has to spend money on keeping them in humane conditions. I hate it for 'em -- you here, Mark Field? -- but there you go.


What, you expect our prison policy to be more rational than our budget process?
4.16.2009 5:58pm
MarkField (mail):

While there are legitimate bases for moral indignation that our government would take a legal position permitting torture in particular circumstances, does anyone honestly think that B.O. and the Dems calling for the release of these memos had anything other than the prospect of embarassing Bush in mind when they chose their position on this issue?


Yes. SATSQ.
4.16.2009 5:59pm
dr:

While there are legitimate bases for moral indignation that our government would take a legal position permitting torture in particular circumstances, does anyone honestly think that B.O. and the Dems calling for the release of these memos had anything other than the prospect of embarassing Bush in mind when they chose their position on this issue?


Yes. I do. I think that "sunlight is the best disinfectant" is a powerful argument, and probably a strong motivator for "B.O. and the Dems". (Sounds like a frat rock band.) I'm not naive enough to think that "the Dems" aren't also rubbing their hands together in anticipation of whatever political gains they might get from it. Politics always plays a role in politics.



I don't have the time or care to expend the effort to identify a particular member of the "Not In My Name" or the "Free Mumia" crowd that literally holds the view in every instance


The reason you don't have time to identify such a person is that there is no such person this side of a mental institution. It would take an awful long time.
4.16.2009 5:59pm
Le Messurier (mail):

Part of the problem with the Bush administration was that they thought 24 was real… snip… but the Bushies continued to approach the WoT as if airplanes were falling left and right throughout his first administration, if not longer. That's why they did so many evil things, essentially they overreacted

.

I'll respectfully defer to your obvious knowledge of all the intell, reports, military maneuvers planned and proposed, as well as the resulting decisions made during that time. That explains your positive (if not dogmatic) conclusion as to the evilness of their action and that they overreacted.

Beyond that, the release of the memos is nothing, if not political. There is no other rational conclusion.
4.16.2009 6:00pm
Anderson (mail):
Sleep deprivation is a classic technique for making people say whatever the interrogators want to hear. If it were a valid method of interrogation, we'd be using it in U.S. law enforcement.
4.16.2009 6:01pm
martinned (mail) (www):
@Le Messurier: Sorry for not sourcing my statement. What you quote was my - admittedly imperfect - summary of Jack Goldsmith's book.
4.16.2009 6:06pm
Le Messurier (mail):
Anderson said:

Sleep deprivation is a classic technique for making people say whatever the interrogators want to hear.

What tickles me is the people who say that torture doesn't work because the subject will just tell you what you want to hear and you'll never know the difference. That conclusion is true for any interrogation whether there is torture involved or not. If the object of the torture is information is is ridiculous to think that the interrogators don't or wouldn't use outside verifications. I've seen the meme that "torture doesn't work" so many time and by people who ought to know better that it makes my head spin. Sure, it likely doesn't always work, and it's not a nice thing, but neither is war, especially the kind we are in now. So, I'm happy that BO at least left himself some wiggle room in previous statements.
4.16.2009 6:14pm
David McCourt (mail):
martinned,

I don't think your example of Attorney Genral Jackson's opinion provides the lesson you wish it to.

The Jackson "opinion" was written, not to advise FDR, who had already decided what he was going to do; it was written, well after the fact, specifically for public consumption. And as far as I can see, the opinion makes attempt to come to grips with the key hurdle: the Neutrality Act of 1939, which expressly prohibited the sale of war materiel to a combatant, except on a "cash and carry" basis (which Britain could no longer afford to do, hence the "destroyers for bases" deal).

Understand, I am not complaining about FDR's conduct, which I think was right and necessary, but I equally think it is clear that the "destroyers for bases" transaction violated the Neutrality Act, and FDR thought so too -- he originally contemplated asking Congress to authorize the deal, and went the unilateral Executive Order route only when he realized Congress would not amend the Neutrality Act to permit the transaction. Afterwards, FDR said that only "legalists" has any complaint about his actions. God knows what he would say about those in these threads today.
4.16.2009 6:19pm
MarkField (mail):

Understand, I am not complaining about FDR's conduct, which I think was right and necessary, but I equally think it is clear that the "destroyers for bases" transaction violated the Neutrality Act, and FDR thought so too -- he originally contemplated asking Congress to authorize the deal, and went the unilateral Executive Order route only when he realized Congress would not amend the Neutrality Act to permit the transaction. Afterwards, FDR said that only "legalists" has any complaint about his actions. God knows what he would say about those in these threads today.


Even those of us who've been most strident in denouncing Bush recognize the difference between acts which are malum prohibitum and malum in se. I do think presidents ought to follow the law, but I'm prepared to make distinctions about the quality of the wrong when they don't.
4.16.2009 6:24pm
rosetta's stones:
Of course torture works. The torturers are working from a known intelligence matrix, and the torturee's inputs to the matrix can be explicitly or duplicitously solicited, and evaluated against the existing matrix. Haven't you ever watched cops interrogate suspects and catch them in a lie? The truth will out, given the proper approach. Is torture that approach? Maybe not, but when the Toronto cops put a phonebook up against my cousin's head and smacked it with a bat 40 years ago, while asking where he got the dope, it worked.
4.16.2009 6:25pm
martinned (mail) (www):
@David McCourt: I must admit I didn't (re)check the background before posting that example. The reason I put it in is because FDR's actions on Lend Lease have been used as an example in recent years of a President doing something that was quite likely illegal because he felt it was necessary given the consequences, and doing so openly, taking his case to the court of public opinion. (The other common example is Lincoln, for example his actions in Ex parte Merryman.) A number of commentators (I can't cite any off the top of my head, sorry) have argued that the Bush administration's policy of hiding and denying everything, and resisting judicial review every step of the way, compared unfavourably to these historical precedents.
4.16.2009 6:27pm
Anderson (mail):
That conclusion is true for any interrogation whether there is torture involved or not.

You don't know anything about interrogation, evidently.

What tickles me is the people who say that torture doesn't work because the subject will just tell you what you want to hear and you'll never know the difference.

Not true, actually.

Sleep deprivation *in particular* gets people to say whatever their interrogators want to hear, just to be allowed to sleep. We know this because the Soviets used it on their victims in the 1930s purges. The victims would sign absurd confessions, get some sleep, and then recant, be tortured again, confess, etc. -- this process went on until finally, out of despair, the person was broken, gave up, and confessed to capital crimes in public view.

If you want someone to remember important details clearly, sleep deprivation is a stupid way to go about it. Rapport-based interrogation, where you play upon the subject's boredom and vanity to get them to tell you what they believe to be the truth, is what professionals use, mixed with some common psych tricks (good-cop-bad-cop etc.).
4.16.2009 6:29pm
Anderson (mail):
Sorry, left off the link re: "Not true, actually."

Truth is, it's surprisingly hard to get anything under torture, true or false. For example, between 1500 and 1750, French prosecutors tried to torture confessions out of 785 individuals. Torture was legal back then, and the records document such practices as the bone-crushing use of splints, pumping stomachs with water until they swelled and pouring boiling oil on the feet. But the number of prisoners who said anything was low, from 3 percent in Paris to 14 percent in Toulouse (an exceptional high). Most of the time, the torturers were unable to get any statement whatsoever.

And such examples could be multiplied. The Japanese fascists, no strangers to torture, said it best in their field manual, which was found in Burma during World War II: They described torture as the clumsiest possible method of gathering intelligence. Like most sensible torturers, they preferred to use torture for intimidation, not information.
4.16.2009 6:31pm
zuch (mail) (www):
Cityduck:
I applaud Obama's dedication to the rule of law and democratic process by releasing these policy and legal analysis memos. They should never have been secret. I also applaud the balance he strikes with his statement, because he is absolutely right that we need to keep our intelligence assets and sources secret.
You misspelled "out of jail".

Cheers,
4.16.2009 7:40pm
zuch (mail) (www):
A.S.:
Waterboarding only approved if:
(a) CIA has credible intelligence that a terrorist attack is imminent
(b)substantial and credible indicators that the subject has actionable intelligence that can prevent, disrupt, or delay the attack, and
(c) other interrogations methods have failed to elicit the information or CIA has clear indications that other interrogations methods are unlikely to elicit the information within the perceived time limit for preventing the attack.
That's weird. Both the CAT and 10 USC § 2340(A) have exceptions for the TTB. Who wouldda known?

Interesting. It looks like waterboarding was approved in ticking time bomb scenarios. It looks like everyone who said those scenarios are BS will have to eat their words.
Why? Did you see a TTB anywhere around? Or is saying "TTB!" like saying "Simon says"?

Cheers,
4.16.2009 7:49pm
zuch (mail) (www):
[Lior]:Are ordinary citizens who act relying in good faith on reasonable legal advice also normally exempted from prosecution?

[Oren]: If the company lawyers advise me X, the company is estopped from later suing from for X. If the DOJ advises me Y, the DOJ ought to be estopped from prosecuting me for Y.
There is no "advice of counsel" defence. In the few cases where there was anything like this, it was more of a situation of a arcane malum prohibitum law where one of the elements, the scienter, included a requirement not only that you intended to do the act, but also that you knew that the act was against the law and intended to break the law (typically regulatory/monetary cases). There, "advice of counsel" may help show that you didn't know that you were breaking the law (but would be only rebuttable evidence in support of this); it would not be an absolute defence.

There is a defence of "reliance" on (purportedly) valid government orders, which serves as an estoppel (we don't want [at least some folks think] people questioning the orders of law officers, for instance, where public safety might be best served by people's immediate acquiescence and compliance ... but perhaps this is not the blog to explain this theory on). Those that do follow orders [even if subsequently found illegal] from government officials are given some leeway. But this reliance must be reasonable; if an officer told you to shoot a person running down the road, that may not be the best thing to do in all circumstances, and in fact might very well land you in trouble in some states.

Cheers,
4.16.2009 8:08pm
Michael Ejercito (mail) (www):

Also, was there anything in Barack's statement condemning politicians who approved rendition to foreign countries where (actual) torture was certain or presumed?

What is the problem with rendition?
4.16.2009 8:59pm
martinned (mail) (www):

What is the problem with rendition?

Apart from that it is a violation of CAT?

No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
4.16.2009 9:01pm
David McCourt (mail):
Just to get a sense of the size of the "problem": is a purported violation of the UN Convention Against Torture judicially enforceable, absent U.S. law incorporating it or parts of it, by a U.S. Court?

Is CAT enforceable anywhere, and has it been enforced against anyone?
4.16.2009 9:17pm
martinned (mail) (www):
@David McCourt: In jurisdictions where direct effect exists in practice as well as in theory, a violation of CAT would be actionable in umpteen different ways, assuming the victim could manage to get near a court. In the US, virtually no treaties worth the paper they are written on have direct effect, so it's anybody's guess.
4.16.2009 9:21pm
martinned (mail) (www):
@David McCourt: I should probably add that the provision on rendition that I quoted is habitually used by asylum seekers in BIA proceedings. Unfortunately for them, the US have a rather unique reading of that article. IIRC, according to case law art. 3 of CAT can only be relied upon if it is more likely than not = better (poorer?) than 50/50 chance, that the person in question will be tortured. As a result, pretty much the only place to which the US do not send people back is China.
4.16.2009 9:27pm
Dreadnaught (www):
Looks like there will be no prosecutions.
4.16.2009 9:30pm
David McCourt (mail):
Thanks for the candid answer, martinned. "Substantial grounds" = "more likely than not" doesn't strike me as a particularly grievous travesty. What about my second question?
4.16.2009 10:03pm
martinned (mail) (www):
@David McCourt: What kind of case were you thinking of? Like I said, CAT matters in immigration law. When it comes to prosecuting someone for torture, what I have is the abortive attempt by Judge Barzon to go after some Bush administration officials, which was problematic for many reasons, but not for reasons of substantive law. Barzon also used CAT to go after Pinochet. (Remember, the UK have a dualist system, so CAT has no direct effect there. Because of that, the House of Lords ruled that he could only be extradited for crimes committed after the UK transposed the CAT into domestic law.)

On the whole, the application of CAT is a problem of politics more than law. Countries tend to be reluctant to go after the (former) leaders of other states, even if this were legally possible. In their own country, potential defendants tend to either bargain for immunity (like Pinochet did) or get prosecuted under ordinary criminal law.

The benefit of such a convention is more outside the law. It sets a few principles straight, including the fact that a ticking time bomb is no excuse, at least not legally. It gives states the option of making torturers' lives misereable, which is always nice, and it settles some procedural issues about extradition (art. 8) and collaboration in factfinding (art. 9).

P.S. You don't think a 25 % chance of being tortured is "substantial"?
4.16.2009 10:19pm
zuch (mail) (www):
Michael Ejercito:
What is the problem with rendition?
Allow me to demonstrate. Step this way, please....

Cheers,
4.16.2009 10:33pm
David McCourt (mail):
martinned,

I guess I was asking for an instance, one will do, when a national of a signatory nation was prosecuted by that same nation for violation of CAT. That's what I was thinking of. If you don't know of one, that's OK.

As to the question of whether "substantial grounds" can mean "more likely than not" -- correct me if I'm wrong, I tried to look this up, as you hadn't mentioned it, and I may not have it right -- apparently this is how the U.S. law, passed by the U.S. Congress and signed by the U.S. president, chooses to define the term. To put it another way, the U.S. made CAT part of its domestic law to this extent and to this extent only. The U.S. also appears to have made part of its law a provision allowing its government to rely on diplomatic assurances that no torture will take place.

If I'm correct on that, then it seems silly to point to the language of CAT, as if it were adopted wholesale into U.S. law.

I know it is frustrating to some people that U.S. officials are governed by U.S. law enacted by the representative branches of the U.S. government, and not by any treaty the diplomats might sign off on, but that's the way we like it here. I realize that most European nations have surrendered a not insignificant portion of their sovereignty to a supra-national body which has scant regard for the opinion of the electorates of the various European countries. But we're not there yet. Hear that, Mr. Koh?
4.16.2009 10:47pm
martinned (mail) (www):
@David McCourt: When torturers are prosecuted in their own country, there is not much need for something like CAT. They can just as easily be charged with aggravated assault, not to mention that torture is presumably illegal in every country on earth anyway, even if the law isn't enforced against the secret police.

I must object to the rest of your comment, though. The US theoretically have a monist system of international law, meaning that "treaties made (...) shall be the supreme law of the land" the same way federal statutes are. That doesn't mean handing the country over to diplomats. Ratification requires a 2/3 vote in the Senate.

When it comes to CAT, the US senators and diplomats have chosen to make the treaty non self-executing, which is perfectly fine. They also added an understanding to the effect that "the phrase, `where there are substantial grounds for believing that he would be in danger of being subjected to torture,' as used in article 3 of the Convention, to mean `if it is more likely than not that he would be tortured.'" (The actually added a whole stack of "understandings" upon ratification, many of which have already come up in the various OLC memos.) Presumably this is intended as a reservation, which is of course perfectly lawful. Consent to be bound is the alpha and omega of international law. Still, it is a less than generous approach to the issue.

Speaking of US understandings about CAT, here's another one you might be interested in.


Article 14
1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.

II. The Senate's advice and consent is subject to the following understandings, which shall apply to the obligations of the United States under this Convention:
(3) That it is the understanding of the United States that article 14 requires a State Party to provide a private right of action for damages only for acts of torture committed in territory under the jurisdiction of that State Party.

III. The Senate's advice and consent is subject to the following declarations:
(1) That the United States declares that the provisions of articles 1 through 16 of the Convention are not self-executing.
4.16.2009 11:22pm
David McCourt (mail):
I have no idea what is legal or illegal in, say North Korea. The question itself strikes me as a category error.

I take it from your posts that no person has ever been prosecuted by his own country for a violation of CAT.
4.16.2009 11:55pm
mls (www):
Mark Field- I question whether distinction between malum prohibitum and malum in se has any utility in the kinds of questions we are addressing. Acts of statecraft, particularly in wartime, do not lend themselves to that distinction.

You say that Roosevelt's violation of the Neutrality Act was not malum in se. But one could easily characterize the illegal supplying of arms to a military combatant as "malum in se." I suspect that, for example, many people (possibly including you) would so characterize Iran-Contra.

You and I recognize, with substantial benefit of hindsight, that U.S. involvement in WWII was necessary and inevitable, and thus stand ready to forgive, if not applaud, Roosevelt's actions. But this isn't based on the inherent morality or evil of the actions Roosevelt took, but on an assessment of the consequences of his actions.

Conversely, we can all agree that the actions approved by OLC were "malum in se" since they involve the infliction of human suffering. But that suffering pales in comparison with, say, the deaths (including innocent civilian deaths) that we have routinely inflicted in Afghanistan, Iraq and Pakistan. Not to mention Hirsoshima, Dresden or the Japanese internment camps.

You may believe that the infliction of suffering was the actual purpose of the interrogations approved by OLC. If that were the case, there would indeed be a moral distinction between these interrogations and other wartime actions. But I don't see any evidence to suggest that the motivation for the interrogations was anything other than a belief, however misplaced, that these were the best, and possibly only, methods that could obtain information needed to stop terrorist attacks on the U.S.
4.17.2009 12:13am
Litigator-London:
@ David McCourt

"I take it from your posts that no person has ever been prosecuted in his own country for a violation of CAT."

Try to think of the CAT as a contract between several states. It obliges those states to criminalise acts of torture and inhuman and degrading treatment. How the states chose to do so in their domestic legal order is left to the signatory states.

Thus members of the UK military who engaged in acts of inhuman and degrading treatment of persons in their custody in Iraq have been prosecuted in Courts-Martial. When General Pinochet was returned by the UK to Chile, he was prosecuted notwithstanding the immunity he had previously legislated for himself.

The utility of the Convention is that it also provides for universal jurisdiction. Thus, the USA, the UK, Spain and all other countries which are signatories to the Convention have jurisdiction to apprehend, investigate and if there is a case to answer, prosecute and upon conviction sentence and punish persons who have engaged in violations of the CAT no matter what their nationality and no matter where criminal acts took place. Further, national acts in the home country of the accused, such as a pardon or a nolle prosequi will not avail the accused outside that jurisdiction. Thus a former government official whose home state has refused to prosecute or pardoned him is still vulnerable should he elect to leave his home state.

The real purpose of the CAT is a back-up to encourage sovereign states to wash their own dirty linen by providing that if they fail do do so, their officials may find themselves in a foreign laundromat.

That is why here in the UK the Attorney-General has instructed the Director of Public Prosecutions to investigate the treatment of Binyan Mohammed while detained at the instance of the USA to ascertain if UK persons, notably officers of the intelligence services were accessories to or otherwise complicit in his ill-treatment. Consider the potential if UK officials were to be prosecuted as accessories to criminal conduct committed by US persons the US has failed to prosecute.
4.17.2009 3:06am
David McCourt (mail):
Why is Bimyam Mohammed, as I believe his name is spelled, in the UK at all? He is, I understand, an Ethiopian national, who had been living in the UK since 1994, at UK taxpayer expense, while he applied for "asylum," as he did not wish to live with his parents, in DC, where they were applying for the same thing. In London, freed by public largesse from the need to earn his own rent, he spent his time gravitating to drugs, then to radical Islam.

In 2001 -- was his asylum application not ruled on in 7 years? -- he travelled to Afghanistan on a false British passport, in order to fully experience the joys of Islamo-facism in the bosom of the Taliban. He admits he underwent military training in a camp in Afghanistan, in order to fight for Islam, against the Russians -- he says. Of course, none of the graduates of these camps would wish to fight Britain or the US -- which is why British forces in Helmand province, Afghanistan, hear Taliban military radio traffic being spoken by Muslim combatants with English Midlands and Yorkshire accents.

He reportedly was arrested, after the fall of the Taliban regime, in Pakistan, at the Karachi airport, where he was attempting to board a flight for the UK -- lot of Russians in the UK? -- again using a false British passport.

So why is this man, an admitted felon with no legal right to reside in the UK, now there?
4.17.2009 8:56am
martinned (mail) (www):

So why is this man, an admitted felon with no legal right to reside in the UK, now there?

I'm going to go out on a limb and speculate that he is likely to be tortured pretty much anywhere that he could conceivably be sent.
4.17.2009 9:49am
Randy R. (mail):
If torture is such a good way to get information, why did the Nazis stop using it? Sure, they used torture, but more as a means for intimidation. But as an intelligence gathering tool, even they realized it was useless.

And that's the heart of it -- people want to torture because they want to hurt our enemies. As a valid means of intel gathering, no one has yet offered a single example of where it has worked. Instead, they are relying upon the good faith and honesty of the government and it apologists for said torture.

I guess when it's Bush &Co., we know they are telling the truth because they have such a great history of honesty....
4.17.2009 9:50am
David McCourt (mail):
martinned,

That may or may not be, which arguably makes it the U.S.'s problem on what to do with him, but how does that get him entry into the UK? His connection to the UK consists of having taken its money and repeatedly broken its laws. So why would they take him? (Put aside the question why, if he is telling the truth, he would wish to go to a country which harmed him).

I guaranty you that if you tried to enter the UK on a false passport, and were caught, you would never be allowed to enter the country again. Here they're apparently running up a valid passport to give to the guy.

As far as I can see he has no legal claim to entry into the UK, and his political associations certainly make him an undesirable alien. Except that he has accusations to make that would embarass the previous (Blair) government; these are apparently worth more than the price of admission today. So go to the head of the queue, Mr. Islamist.
4.17.2009 10:12am
martinned (mail) (www):
@David McCourt: As far as I can tell, he is one of the people released from Guantanamo by the Obama administration. The reason why he is in the UK is that that is the country he has the closest connect to that would take him and not torture him.

Which is actually something I've been trying to figure out for a few months now. Maybe you can help. Let's start with the timeline:

1. The US kidnap/capture people all over the world and take them to Guantanamo Bay.
2. The whole thing becomes an embarrassment, so the new administration decides to close the place.
3. The US could not conceivably allow any of these detainees access to the US, so US allies are asked to take them instead.
4. Most of said allies are less than thrilled about that idea.
5. Somehow Europe comes out looking like the bad guy...

Look at this BBC story about France maybe taking one of the detainees:
"Mr Obama has pledged to close the camp within a year, but more than 200 men remain there, most of whom have been held for years without trial. Many of them cannot be sent to their home countries for fear that their lives would be in danger there. The US is therefore seeking third countries to take in some of the detainees."

There's a step missing in this argument. Whose mess is this anyway???
4.17.2009 10:39am
Michael Ejercito (mail) (www):
If the torture happened in Los Angeles, California, could not the Los Angeles County district attorney prosecute the torture suspects under California state law?

One big problem with prosecuting torture suspects is the difficulty of gathering witnesses and evidence, unless the CIA does not have a blue wall of silence that many police agencies in the U.S. have.
4.17.2009 11:46am
martinned (mail) (www):

If the torture happened in Los Angeles, California, could not the Los Angeles County district attorney prosecute the torture suspects under California state law?

Can the feds claim state secrets doctrine here? If they can, presumably that would be the end of the case.
4.17.2009 11:52am
geokstr:

@David McCourt: As far as I can tell, he is one of the people released from Guantanamo by the Obama administration. The reason why he is in the UK is that that is the country he has the closest connect to that would take him and not torture him.

What I can't understand is, if we send a jihadist to a country that he is from, and that country is also a big supporter of jihad, why do we expect that they will torture one of the members of their own team?

That's crazy talk.

They're going to have to torture them to get the information that they would gladly give them anyway?

But enough people in the west appear to be stupid enough to fall for this, and instead, we get to absorb these homocidal fanatics into our own societies. In the UK, for instance, this guy will have full rights to be supported by state welfare for the rest of his life, while he plots some more jihad.

We are so screwed.
4.17.2009 1:41pm
Mark Field (mail):
mls, I responded to your post in the other thread. I'm out of town and posting time is limited.
4.17.2009 2:40pm
martinned (mail) (www):
@geokstr: There are very few countries that are "of their own team". Sending a jihadist back to Pakistan, for example, is quite likely to land him in some ISI prison, which is not very pleasant. For that reason, sending him there would be in violation of art. 3 CAT.
4.17.2009 2:58pm
Litigator-London:
@ David McCourt. Let me try to help you to get some facts straight.

1. Not that it matters too much but in the English High Court proceedings for judicial review this gentleman's last name is spelt "Binyan" see: Mohamed, R (on the application of) v Secretary of State for Foreign &Commonwealth Affairs [2008] EWHC 2048 (Admin) - see the full title of the case: The Queen on the Application of Binyan Mohamed -v- Secretary of State for Foreign and Commonwealth Affairs

2. It is not an offence for a person seeking asylum in this country to arrive on false documentation or without any documentation at all if that is necessary to enable the applicant to land on our shores and make his claim.

3. It is not the case that Binyan Mohamed was unlawfully in the UK. See paragraph 7 of the Judgment:-

"BM is an Ethiopian national and not a British national. He was born in Ethiopia on 24 July 1978. He came to the United Kingdom on 9 March 1994 after a short period in the United States and sought asylum on the basis of his family's opposition to the then government of Ethiopia. Although the application was rejected, in May 2000 he was given exceptional leave to remain in the United Kingdom for 4 years. During that period he lived in London. He worked and studied. His studies included vocational studies for electrical and electronics engineering."

For your information, at that time, it was the practice of the Home Office to refuse many applications for asylum (often unlawfully) but instead to grant "exceptional leave to remain" for 4 years. At the conclusion of those four years an applicant would be granted "indefinite leave to remain"and a year later become entitled to apply for naturalisation as a British Citizen.

A person who has exceptional leave to remain is lawfully in the UK and has the same rights to employment, healthcare and welfare as a citizen does.

4. So Binyan converted to Islam. In my book that is no bad thing. As it happens, if defined by weekly attendances at church or mosque rather than nominal adherence, there are more practising Muslims in the UK than practising members of the Church of England and they are by and large among the most productive and law-abiding members of our community.

5. So he fell under the influence of extremists and was persuaded to go to the tribal areas of Pakistan and Afghanistan. That is indeed not an uncommon phenomenon and it is, by the way, a prime example of the law of unintended consequences. Was it not the Administration of the late (and for me unlamented) President Ronald Reagan which hit on the concept of the Mujahidin to fight a proxy war against the Soviets in Afghanistan - facilitated the supply of arms and the development of training camps - supported the islamist dictator Zia ul Haq - encouaged non nationals from Algeria, Morocco, Egypt, Yemen to "join the caravan" to fight the infidel in Afghanistan ?

6. Judgment again:

"10. On 10 April 2002 BM was arrested at Karachi Airport by the Pakistani authorities when he was attempting to leave Pakistan to fly to London. This was his second attempt to leave Pakistan using the British passport of a British national."...

"23. During the period from 10 April 2002 until May 2004, it is common ground that BM was held incommunicado and was denied access to a lawyer. During the period in which it is known he was in Pakistan (and it is common ground that on all the evidence, both closed and open, it is only known he was in Pakistan until 17 May 2002), his detention was not reviewed by any court or tribunal in Pakistan.

24. On the evidence of Pakistani law given by Mr Afzal H Mufti of Cornelius, Lane and Mufti, an experienced advocate of considerable standing before the Supreme Court of Pakistan, it is clear that the detention was unlawful under the laws of Pakistan. The suspension of the constitution of Pakistan by General Musharraf and the issuing of a Provisional Constitution Order in October 1999, did not affect the position under the law of Pakistan that fundamental rights remained in full force. It was therefore unlawful in Pakistan to hold BM incommunicado, without access to legal representation, and to hand him over to United States agents without due judicial process. That was the only evidence of Pakistani law before us and we accept it."

As set out in the remainder of the Judgment, what thereafter happened to BM is, to put it mildly, controversial and since our courts regard unlawful detention, torture and inhuman and degrading treatment as serious matters, the Attorney General has directed an enquiry into whether officers of our Security service were complict in the unlawful treatment of BM.

Would that the Attorney-General of the United States of America did the same.
4.17.2009 3:22pm
Litigator-London:
Error in prceding post. BM's surname is Mohamed and his first name in Binyan.
4.17.2009 3:24pm
David McCourt (mail):
Litigator-London,

Thank you for your long post attempting to "help" me, but the "facts" you cite don't really answer my questions. That's not to say that they, and the one's you don't mention, aren't revealing.

As to the man's name, I appreciate your correcting me. I took the name as given by some outlets in the British press, where it appeared in various forms. I suppose his lawyers would know best. I also appreciate your update indicating that you got his name wrong as well.

Did it really take more than six years -- from March of 1994 to May of 2000 -- for the British government to rule on, and reject, BM's asylum application? If they rejected BM before May, 2000, then he was in the country without the benefit of "exceptional leave," and hence there illegally, no? On the other hand, if it really was or is the practice of the British government to take more than six years to deny asylum to some jobless person taking up space and money in public housing, and then to automatically give that person "exceptional leave," which amounts to the right to stay in the country forever, and to apply for citizenship, notwithstanding, then this seem at least somewhat bizarre, pointless, and unfortunate. Is no one turned down and, er, actually asked, or made, to leave? But you appear to regard it, and BM's entire sojourn through the UK, with civic pride.

"So he converted to Islam .. so he fell under the influence of extremists," and a ho hum from you. Blame it on Reagan. Your approval of BM's conversion to Islam displays an admirable sang froid, which you may well need as British institutions, under the guidance of the Archbishop of Canterbury, bend over backwards to be the first to bend over forwards in accomodating themselves to Sharia. Polygamy? Wife beatings? female "circumcision"? "Honor" killings? "Local" customs. A few of the boys slipping over from Bradford to do a little fighting with the Taliban, and against the British Army, down in Helmand? Let's celebrate diversity in muti-cultural Britain.

In fact, before heading out to the Al Qaida dude ranch, BM attended the Baker Street Mosque, a center of extremism, and the same place where Zacarias Moussaoui and other notables drank from the cup of hatred for the West. This is a nice fellow.

"[T]hey [Muslims] are by and large among the most productive and law-abiding members of our community." Perhaps, especially if you discount the wife beatings, female circum, etc. But you don't claim that BM was one of these paragons do you? A welfare recipient, public housing resident, self-described drug addict and Islamo-facist in training? Depends on one's standards of productive and law abiding, I suppose. BM did get off the drugs and give up the dole when he decided to enlist in the Taliban, though. And the Taliban are certainly productive and law abiding, though the production is mainly opium poppies for export, and the law is the most medieval form of Sharia imaginable.

"False documentation" -- another "ho hum" from you. Well, I have no idea how he arrived in the UK, but he admits -- not under "torture," but in the newspapers -- that he left the UK, and travelled around the world, to undergo military training with and to join the Islamic equivalent of the Hitler Youth, and then twice attempted to return to the UK, all using a fake British passport. This, actually, is a crime, and one that would normally get the perpetrator banned from ever entering the country. But not BM. Again, none of this appears to bother you in the slightest.

So my question remains, why would the UK want to readmit a criminal and undesirable alien who joined the armed forces that the UK currently are doing battle with?
4.18.2009 10:29pm
David McCourt (mail):
Litigator-London,

Thank you for your long post attempting to "help" me, but the "facts" you cite don't really answer my questions. That's not to say that they, and the one's you don't mention, aren't revealing.

As to the man's name, I appreciate your correcting me. I took the name as given by some outlets in the British press, where it appeared in various forms. I suppose his lawyers would know best. I also appreciate your update indicating that you got his name wrong as well.

Did it really take more than six years -- from March of 1994 to May of 2000 -- for the British government to rule on, and reject, BM's asylum application? If they rejected BM before May, 2000, then he was in the country without the benefit of "exceptional leave," and hence there illegally, no? On the other hand, if it really was or is the practice of the British government to take more than six years to deny asylum to some jobless person taking up space and money in public housing, and then to automatically give that person "exceptional leave," which amounts to the right to stay in the country forever, and to apply for citizenship, notwithstanding, then this seem at least somewhat bizarre, pointless, and unfortunate. Is no one turned down and, er, actually asked, or made, to leave? But you appear to regard it, and BM's entire sojourn through the UK, with civic pride.

"So he converted to Islam .. so he fell under the influence of extremists," and a ho hum from you. Blame it on Reagan. Your approval of BM's conversion to Islam displays an admirable sang froid, which you may well need as British institutions, under the guidance of the Archbishop of Canterbury, bend over backwards to be the first to bend over forwards in accomodating themselves to Sharia. Polygamy? Wife beatings? female "circumcision"? "Honor" killings? "Local" customs. A few of the boys slipping over from Bradford to do a little fighting with the Taliban, and against the British Army, down in Helmand? Let's celebrate diversity in muti-cultural Britain.

In fact, before heading out to the Al Qaida dude ranch, BM attended the Baker Street Mosque, a center of extremism, and the same place where Zacarias Moussaoui and other notables drank from the cup of hatred for the West. This is a nice fellow.

"[T]hey [Muslims] are by and large among the most productive and law-abiding members of our community." Perhaps, especially if you discount the wife beatings, female circum, etc. But you don't claim that BM was one of these paragons do you? A welfare recipient, public housing resident, self-described drug addict and Islamo-facist in training? Depends on one's standards of productive and law abiding, I suppose. BM did get off the drugs and give up the dole when he decided to enlist in the Taliban, though. And the Taliban are certainly productive and law abiding, though the production is mainly opium poppies for export, and the law is the most medieval form of Sharia imaginable.

"False documentation" -- another "ho hum" from you. Well, I have no idea how he arrived in the UK, but he admits -- not under "torture," but in the newspapers -- that he left the UK, and travelled around the world, to undergo military training with and to join the Islamic equivalent of the Hitler Youth, and then twice attempted to return to the UK, all using a fake British passport. This, actually, is a crime, and one that would normally get the perpetrator banned from ever entering the country. But not BM. Again, none of this appears to bother you in the slightest.

So my question remains, why would the UK want to readmit a criminal and undesirable alien who joined the armed forces that the UK currently are doing battle with?
4.18.2009 10:29pm

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