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Preliminary Memorandum of the Justice Robert H. Jackson Conference on Federal Prosecutions of War Criminals

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While the civilian torture track was taking place, a parallel torture track likewise was proceeding in the Department of Defense.

In February of 2002, Army Reserve Major General Michael Dunlavey, an intelligence specialist who was a judge in civilian life, was appointed to be the first head of interrogation at Guantanamo, where torture and abuse were in progress.  Thereafter Dunlavey flew to Washington every week to brief Rumsfeld personally on intelligence being obtained at Guantanamo, and said in a sworn statement that ‘“I got my marching orders directly from the President of the United States.”’ 

Dunlavey’s comment about where he got his marching orders cannot be considered surprising. Although George Bush deliberately lied to the American people and media by claiming in public that the U.S. does not engage in torture, it has long been plain that he knew what was being done.  The torture and abuse were discussed at meetings of the so-called Principals Committee, where George Tenet presented graphic details of interrogations to a Committee which included some of Bush’s highest associates, including Condoleezza Rice, Colin Powell, Don Rumsfeld, John Ashcroft, and Dick Cheney.  (At times John Yoo was also at Principals Committee meetings to brief members.)  Bush knew of and approved these meetings, at which Tenet would brief the members of the Principals Committee on the specific details of the torture and abuse that were taking place.  And in September 2006, after years of (then still continuing) torture, Bush publicly admitted that for years the US had been holding secret (off the books) prisoners at so-called “black sites” (in countries like Poland, Romania and Thailand), and had subjected these secret prisoners to “‘an alternative set of procedures,’” that is, to torture and abuse.

There can thus be no doubt that George Bush knew what was occurring all the while nor can there be surprise that Dunlavey swore his marching orders, at Guantanamo, where torture was regularly practiced, came directly from Bush.

Lieutenant Colonel Diane Beaver, a lawyer, was also at Guantanamo.  She was commissioned to write a memorandum justifying the torture techniques being practiced there, she willingly complied, and she later was promoted to the Pentagon’s Office of General Counsel.  (The techniques she approved at Guantanamo were part of a list drawn up there by Lt. Col. Jerald Phifer.)  Beaver placed no limits on the use of techniques, and did not address the legality of using them in combination and over time, as was the actual practice.  Her views were used as a legal basis for torturing and abusing prisoners, specifically including a prisoner who was tortured and abused for 54 straight days.

Beaver also discussed torture with several lawyers/executive officials who visited Guantanamo and personally observed tortured prisoners on September 26, 2002.  Those lawyers/executive officials included several of the most culpable of the executive culprits; they included Addington, Haynes, Gonzales, Chertoff, Philbin, Rizzo, and Goldsmith, as well as a Chertoff aide named Alice Fisher.  The lawyers knew about the prisoner who was undergoing 54 straight days of torture, and wanted to know what the military was doing with regard to “‘managing’” him.

While Beaver was doing her work at Guantanamo, John Yoo wrote another torture memo, this one for DOD.  The final version was dated March 14, 2003, but DOD had a draft at least as early as late January 2003.  Yoo’s memo for DOD largely parroted his torture memo of August 1, 2002.  It rendered Guantanamo a law-free torture zone for military interrogators, and suggested that even acts such as gouging out a prisoner’s eyes or “‘dousing him with scalding water [or] corrosive acid’” could be lawful.  Yoo’s memo served as the template for a memo on permissible torture being drafted by a Pentagon working group chaired by Air Force General Counsel Mary Walker.  As noted earlier, the Pentagon kept only one copy of Yoo’s memo seeking to justify horrendous violations of law; the copy was kept locked in Walker’s safe. 
           
Subsequent to Yoo’s memos for the CIA and the DOD, torture and abuse of prisoners continued, with tortures being used in combinations and for extended periods of time on individual prisoners.  People in the CIA who were perpetrating or authorizing the tortures remained worried despite the “golden shield,” “get out of jail free cards” that had been issued by Yoo, however.  They remained worried particularly because of the effects of the use of tortures in combination, which Yoo had not covered.  They demanded new, broader attempted “golden shields,” golden shields that would cover combinations of tortures.
 
In 2005 Stephen Bradbury was appointed head of OLC on a probationary basis.  That is, he was made interim head, with promotion to the prestigious position of permanent head, a position he coveted, being dependent on performance that satisfied his political masters, Gonzales, Cheney and Addington.  Bradbury thereupon wrote legal memoranda justifying and seeking to legalize torture, including tortures undertaken in wholesale combinations.  His desire for appointment as permanent head of OLC was then realized.

V.   WARNINGS GIVEN THE EXECUTIVE ACTORS THAT THEIR ACTIONS WERE ILLEGAL AND MUST STOP -- WARNINGS THAT THEY DELIBERATELY ESCHEWED 
           
It is claimed by apologists that war criminal culprits should not be prosecuted because they thought what they were doing was lawful. That claim simply cannot be sustained.  No person, at least no person of sufficient intelligence to have risen to a responsible level of American government, can reasonably fail to know that the imposition of torture is unlawful and that the imposition of horrible pain and fear by beatings, waterboarding, stringing people up by the arms for hours and days on end, etc., are torture. 
 
Indeed, it was precisely the culprits’ knowledge that what they were doing was illegal torture which caused CIA officers to demand “golden shields” in order to try to escape future prosecutions by pointing to memos authorizing them to commit crimes and giving the President unfettered power to authorize crimes.
 
Beyond this, with the existence of unlawful torture being obvious to any sensate person, the false legal memos cannot enable the culprits to escape prosecution.  The Nuremberg principles set their face against any argument that one can be excused on the ground that he or she was merely following transparently illegal orders, as here.
 
There is also the important fact that, when they ultimately found out what was going on, a host of persons in the Executive Branch, including both knowledgeable and experienced lawyers as well as laymen, told the culpable actors that what they were writing or doing was illegal, could lead to prosecutions, and must stop.  But wishing to continue the torture and abuse, the culpable Executive actors deliberately ignored these warnings, and even threatened and verbally abused those who issued them, in order to try to prevent the warnings from continuing.
 
It is often publicly pretended by the Executive culprits and their apologists, that all the advice they received was in favor of torture.  To the contrary.  We have here a situation in which they received extensive advice -- which they deliberately chose to ignore -- that what they were doing was illegal and could lead to prosecutions.  Such advice came from knowledgeable and experienced persons including FBI agents, agents and officials of other investigative bodies, general counsels of the military services, the Judge Advocates General of the armed services, and State Department officials and lawyers.

The following were among the verbal or written warnings, and facts constituting warnings, given to the Executive culprits: 
 
*  In an extensive 40-page memo of January 11, 2002, the Legal Adviser to the State Department, William Howard Taft IV, warned that the Geneva Conventions certainly did apply to the war and that Bush’s claim that the enemy was not covered by the Conventions could subject him to prosecution for war crimes. 
 
*  Another State Department lawyer, David Bowker, warned that “‘there is no such thing’” as a person who is not covered by the Geneva Conventions. 
 
*  FBI agents were interrogating a prisoner named Abu Zubayda in early 2002, were using traditional methods of questioning, not torture, and were getting excellent information.  But because George Bush wanted the “tough guy CIA” to take the lead, the FBI agents were replaced by a CIA team headed by a CIA contract officer named James Mitchell.  The CIA team engaged in torture, the FBI unsuccessfully tried to persuade the CIA not to do so, and Zubayda stopped talking. 
 

Appalled by what they were seeing, and fearful that they would be implicated, the FBI agents left Guantanamo. FBI Director Mueller then barred FBI agents from participating in coercive CIA interrogations, a warning-fact well known to many in the Executive.
 
*  The Counterterrorist Center (CTC) of the CIA was headed by Cofer Black and was the terrorist-fighting operation of the CIA.  R. Scott Shumate was its chief operational psychologist from 2001-2003.  He reported directly to Black.  He spoke out against the CIA’s use of torture and abuse, and left the CIA because of this disagreement with the use of torture.
 
*  Reserve Air Force Colonel Steve Kleinman, who had had years of experience with interrogations, was posted to Iraq in the fall of 2003 to help advise on interrogations there.  He objected to the torture and cruelty he saw there, and pointed out that interrogators were obliged to follow the Geneva Conventions.  His views were rejected by the commanding officer of his special unit and by other officers.  Torture was instead specifically approved, Kleinman was shunned, and he was physically threatened. 
 
*  In approximately October/November 2002 an FBI agent named Jim Clemente (who had a law degree and had been a prosecutor), and other FBI agents, observed horrendous torture and abuse of a prisoner at Guantanamo.  One of the agents accused the military of criminal behavior.  Clemente and colleagues urged Lt. Col. Phifer to stop the torture, but Phifer (who had created the Guantanamo list of torture techniques) was “‘enraged’” by this advice and told the FBI personnel to “‘Lead, follow, or get the f*ck out of the way.’”

Clemente then contacted the head of the FBI’s national security law section in Washington, Marion Bowman, warning that actions in violation of antitorture law were being taken and could lead to prosecutions and convictions.  Bowman in turn called lawyers in Jim Haynes’ office in DOD and expressed concern.  He never heard back from the DOD lawyers or from their boss, Haynes.
 
*  In the late summer of 2002, the CIA sent a senior intelligence analyst to Guantanamo to observe and report on what was going on.  (Now retired, he “declined to be identified.”)  In a top secret, detailed report, he estimated that one-third of the detainees had no connection to terrorism and said the United States was committing war crimes at Guantanamo.
 
His report, “written by a tough and highly experienced CIA analyst whose career had been spent fighting terrorists,” alarmed Condoleezza Rice’s lawyer, John Bellinger, and retired four star General John Gordon, a terrorism expert on the National Security Council who was also a former Deputy Director of the CIA.  But their concern, stoked by the experienced CIA analyst’s report, was flatly rejected and ignored by Addington, Flanigan and Gonzales.  Nor was there subsequently an interest in their concern in Rumsfeld’s office, which likewise ignored the concern and the report underlying it.
 
*  The Criminal Investigative Task Force (CITF) of DOD, headed by Col. Brittain Mallow, investigated what was going on at Guantanamo, and became alarmed in approximately the summer of 2002.  It raised questions about potentially criminal mistreatment of prisoners.  In a meeting, Mallow told Haynes that interrogation tactics being used at Guantanamo could be illegal.  Haynes and DOD ignored CITF’s concerns, telling CITF that it (CITF) had no say in the matter.  Haynes’ willingness to ignore CITF was stoked by statements of John Yoo and Michael Chertoff. 
 
*  David Brant was the head of the Naval Criminal Investigative Service (NCIS).  He learned from NCIS personnel on the ground at Guantanamo, especially an NCIS psychologist named Michael Gelles, and from Brittain Mallow, that torture and abuse were taking place at Guantanamo.  Brant knew such actions were unlawful regardless of contrary legal advice from Jim Haynes’ Office of General Counsel in the Pentagon, and he would not permit NCIS personnel to participate in the torture and abuse.  His bottom line was “‘it just ain’t right.’”  “‘It was pretty basic, black and white to me,’” he said.  “‘I didn’t know or care what the rules were that had been set by the Department of Defense at that point.  We were going to do what was morally, ethically and legally permissible.’” 

Brant conveyed his concern to Army leaders, who had command authority over the military interrogators at Guantanamo, but they did not care.  He also conveyed his concern to the Air Force.  But it too did not care.  He found nobody who cared until he spoke to the General Counsel of the Navy, Alberto Mora, on December 17, 2002 and told him what had been going on.  (Mora was deeply upset by what he was told.  His subsequent actions are discussed below.)

*  Steven Morello, the General Counsel of the Army, was long aware of and deeply concerned about what had been going on.  He had in his office a DOD collection of pertinent documents, including, among other items in the DOD paper trail, Diane Beaver’s memo, a document by which Rumsfeld, upon Haynes’ recommendation, gave the green light to torture and abuse, and a memo from Jim Clemente of the FBI warning that the renditions could be considered a criminal conspiracy in violation of American law.  When Mora came to him after learning what was taking place from Brant, Morello informed Mora that “‘We tried to stop it,’” but couldn’t.  His concerns had been ignored.  He had been “told to shut up.” 
 
When Mora went to speak to Morello about what he had learned from Brant, Morello showed Mora the DOD paper trail that was in his possession.  But he was so nervous that he made Mora promise not to tell where he had seen the documents.  The documents had, of course, been “closely held,” with numerous DOD personnel and lawyers being kept out of the process lest they learn about and object to what was being done.  Such close holding and efforts to limit paper trails were a modus operandi of Haynes.

*  Mora was horrified by what he read in the paper trail in Morello’s office.  He took his concerns to Gordon England, then Secretary of the Navy and later Deputy Secretary of Defense.  Then, with England’s approval, he met with Haynes on December 20th, three days after Brant had come to him.
 
Mora warned Haynes that the DOD paper trail permitted torture.  In the next three weeks, Mora’s warnings against torture and abuse were also put before several of the Pentagon’s top officials, including Deputy Secretary of Defense Wolfowitz, Jane Dalton, who was the legal advisor to the Joint Chiefs, and Secretary Rumsfeld. Mora’s warnings were unheeded, and torture and abuse continued at Guantanamo.
 
Three weeks after first meeting with Haynes on December 20, 2002, Mora met with him again on January 9, 2003, to once again warn against the torture and abuse, which were continuing.  Mora warned Haynes that criminal charges could be filed against administration officials.  Haynes rejected Mora’s views.  When he later mentioned Mora’s views to Rumsfeld, Rumsfeld too rejected them.
 
Mora warned Haynes yet again on January 15, 2003.  Acting contrary to Haynes’ aversion to paper trails, on January 15th Mora gave him an unsigned draft memorandum saying that what was occurring at Guantanamo was “‘at a minimum cruel and unusual treatment, and, at worst, torture.’”  Mora said he would sign the memo that afternoon -- thereby making it an official document for and permanently available in the DOD’s historical files -- unless the unlawful interrogation techniques were suspended.
 
Haynes called Mora by the end of the day on January 15, 2003 to tell him that the illegal techniques had been suspended.  One week later, however, Mora was shown a draft of an 81-page memo from John Yoo, which was subsequently finalized in March 2003.  Mora was shown the draft by Mary Walker, head of the Pentagon working group that was drafting a DOD memo, based on Yoo’s work, that authorized torture.  Appalled by the barbarism and professional incompetence of Yoo’s draft, a few days after reading the draft Mora sent an email to Mary Walker warning that Yoo’s memo was erroneous and dangerous. 
 
Walker wrote back that she disagreed with Mora’s warning and she believed Haynes did too.  Subsequently, Mora again confronted Haynes, telling him that the draft report being prepared by Walker’s working group was “‘deeply flawed’” and should be locked up and “‘never let out to see the light of day again.’”
 
Mora’s warnings were all ignored.  The torture and abuse continued. 
 
*  The Judge Advocates General of the Army, Navy, Air Force and Marines are the country’s top uniformed legal officers.  They were appointed to be part of Mary Walker’s working group.  All four of them were appalled at what they were seeing, and each wrote a memo of dissent to torture and abuse.  Their memos warned not just that what was being approved was contrary to the legal and moral training American servicemen have always received, and not just that there would be international criticism, but also that interrogators and the chain of command were being put at risk of criminal prosecutions abroad.
 
The views and warnings of America’s top uniformed legal officers were ignored. 
  

In sum, far from American officials and lawyers authorizing or engaging in torture because it was lawful, they authorized and engaged in it because they wanted to, they kept their actions secret from interested officials for as long as they could lest there be strong opposition to the torture and abuse they were perpetrating, they deliberately ignored repeated warnings that the torture and abuse were illegal and could lead to prosecutions, and they ignored these warnings even when they came from high level civilian and military officers.*

This posting represents the personal views of Lawrence R. Velvel.  If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, VelvelOnNationalAffairs.com.  All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law.  If you wish your comment to remain private, you can email me at Velvel@VelvelOnNationalAffairs.com.   

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Lawrence R. Velvel is a cofounder and the Dean of the Massachusetts School of Law, and is the founder of the American College of History and Legal Studies.
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I don't think that I am alone in being mystifi... by PrMaine on Friday, Jan 9, 2009 at 9:47:23 AM
It is my understanding that any prosecutor at the ... by William Whitten on Friday, Jan 9, 2009 at 10:14:01 AM
Justice Robert H. Jackson, the chief United States... by Lance Ciepiela on Friday, Jan 9, 2009 at 8:07:06 PM
to see such a trial come to fruition. And how asha... by Nick van Nes on Friday, Jan 9, 2009 at 9:42:25 PM
If you think Mr. Obama or the rest of the wussy, p... by Bryan Emmel on Saturday, Jan 10, 2009 at 2:09:34 AM
on Bush Ashcroft Rumsfeld Rice Cheney Gonzale... by luckydjw on Saturday, Jan 10, 2009 at 7:01:09 PM