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Russia Bars Bush-Era Torture Lawyers

By Robert Parry | Consortium News | April 14, 2013

The U.S. government views itself as the global arbiter of human rights, righteously throwing stones at other nations for their misbehavior and most recently imposing sanctions on a group of Russians accused of human rights crimes. That move prompted a tit-for-tat response from Moscow, barring 18 current and former U.S. officials from entering Russia.

The predictable response from the U.S. news media to the Russian retaliation was to liken it to the Cold War days when the United States would catch a Soviet spy and Moscow would retaliate by grabbing an American and arranging a swap.

But several of the Americans targeted by Moscow this time were clearly guilty of human rights crimes. John Yoo and David Addington were former legal advisers to President George W. Bush and Vice President Dick Cheney, respectively. The two lawyers were famous for inventing new excuses for torture. Two other Americans on Moscow’s list – Major General Geoffrey D. Miller and Rear Admiral Jeffrey Harbeson – commanded the extralegal detention center at Guantanamo Bay, Cuba.

In particular, Yoo and Addington stand out as smug apologists for torture who twisted law and logic to justify waterboarding, painful stress positions, forced nudity, sleep deprivation and other techniques that have been historically defined as torture. In a society that truly respected human rights, they would have been held accountable – along with other practitioners of the “dark side” – but instead have been allowed to walk free and carry on their professional lives almost as if nothing had happened.

The Russians were polite enough only to include on the list these mid-level torture advocates and enablers (as well as some prosecutors who have led legal cases against Russian nationals). They left off the list many culpable former senior officials, such as Defense Secretary Donald Rumsfeld, National Security Advisor Condoleezza Rice, CIA Director George Tenet, Cheney and Bush. Obviously, the Russian government didn’t want an escalation.

It’s also undeniably true that Moscow does not come to the human rights issue with clean hands. But neither does the United States, a country that for generations has taken pride in its role as the supposed beacon of human rights, the rule of law, and democratic principles.

Acting as a prosecutor at the Nuremberg Tribunals after World War II, Supreme Court Justice Robert Jackson famously denied that punishing the Nazi leaders as war criminals was simply victor’s justice. He insisted that the same principles would apply to the nations sitting in judgment, including the United States and the Soviet Union. However, that has turned out not to be the case.

The real principles of today’s international law could be described as dragging petty warlords from Africa or Eastern Europe off to The Hague for prosecution by the International Criminal Court, while letting leaders of the Big Powers – with far more blood on their hands – off the hook.  Jackson’s “universal principles” of human rights now only apply to the relatively weak.

A History of Double Standards

Of course, one could argue that double and triple standards have always been the way of the world. What often seems to really matter is who has the most powerful friends, the best P.R. team, and the greatest number of “news” organizations in their pocket. Plus, lots of cognitive dissonance helps, too.

For instance, you must forget the role of the New York Times’ Thomas Friedman, the Washington Post’s Fred Hiatt and other mainstream media stars in rallying the American people to get behind the U.S. invasion of Iraq in 2002-2003 – when the same pundits now fold their arms in disgust at some other nation’s violation of international law.

It’s also handy if you can forget much of American history. You can fondly recall the stirring words about liberty from the Founding Fathers, but it’s best to forget that many owned African-Americans as slaves and that their lust for territorial expansion led them and their descendants to wage a cruel genocide against Native Americans.

There also were the repeated military interventions in Latin America and the brutal counterinsurgency campaign in the Philippines (which applied some of the same tactics that the U.S. military had perfected in crushing uprisings by Native Americans). Then, there were the militarily unnecessary atomic bomb attacks on Hiroshima and Nagasaki; the mass slaughters in Indochina in the 1960s and 1970s; and the “death squad” operations in South and Central America in the 1970s and 1980s.

One can trace a direct correlation from American sayings like “the only good Indian is a dead Indian” in the 19th Century to “kill them all and let God sort them out” in the 20th Century. And U.S. respect for human rights hasn’t improved much in the new century with George W. Bush’s “war on terror” and his invasions of Afghanistan and Iraq and with Barack Obama’s extrajudicial killings by drone attacks.

So, when the United States strides from its glass house to hurl stones at Russians over repression in Chechnya, it’s not at all surprising that the Russians would return the volley by singling out some of the Americans clearly implicated in war crimes under George W. Bush. The only real question is why did the Russians stop with a handful of apparatchiks? Probably they didn’t want to escalate this exchange of Big Power hypocrisies.

The hard truth is that if the United States had a functioning criminal justice system for the powerful – not just for run-of-the-mill offenders – former Vice President Cheney and ex-President Bush would have convicted themselves with their own public comments defending their use of torture.

For instance, in February 2010, on ABC’s “This Week,” Cheney pronounced himself “a big supporter of waterboarding,” a near-drowning technique that has been regarded as torture back to the Spanish Inquisition and that has long been treated by U.S. authorities as a serious war crime, such as when Japanese commanders were prosecuted for using it on American prisoners during World War II.

Cheney was unrepentant about his support for the technique. He answered with an emphatic “yes” when asked if he had opposed the Bush administration’s decision to suspend the use of waterboarding. He added that waterboarding should still be “on the table” today.

Admitting the Sham

But Cheney went further. Speaking with a sense of legal impunity, he casually negated a key line of defense that senior Bush officials had hidden behind for years – that the brutal interrogations were okayed by independent Justice Department legal experts who gave the administration a legitimate reason to believe the actions were within the law.

However, in the interview, Cheney acknowledged that the White House had told the Justice Department lawyers what legal opinions to render. In other words, the opinions amounted to ordered-up lawyering to permit the administration to do whatever it wanted.

In responding to a question about why he had so harshly attacked President Obama’s counterterrorism policies, Cheney explained that he was concerned about the new administration prosecuting some CIA operatives who had handled the interrogations and “disbarring lawyers with the Justice Department who had helped us put those policies together. … I thought it was important for some senior person in the administration to stand up and defend those people who’d done what we asked them to do.”

Cheney’s comment about the Justice lawyers who had “done what we asked them to do” was an apparent reference to John Yoo and his boss, Jay Bybee, at the Office of Legal Counsel (OLC), a powerful Justice Department agency that advises the President on the limits of his power.

In 2002, Yoo – while working closely with White House officials – drafted legal memos that permitted waterboarding and other brutal techniques by narrowly defining torture. He also authored legal opinions that asserted virtual dictatorial powers for a President during war, even one as vaguely defined as the “war on terror.” Yoo’s key memos were then signed by Bybee.

In 2003, after Yoo left to be a law professor at the University of California at Berkeley and Bybee was elevated to a federal appeals court judgeship in San Francisco, their successors withdrew the memos because of the sloppy scholarship. However, in 2005, President George W. Bush appointed a new acting chief of the OLC, Steven Bradbury, who restored many of the Yoo-Bybee opinions.

In the years that followed, Bush administration officials repeatedly cited the Yoo-Bybee-Bradbury legal guidance when insisting that the “enhanced interrogation” of “war on terror” detainees – as well as prisoners from the Iraq and Afghan wars – did not cross the line into torture.

In essence, the Bush-Cheney defense was that the OLC lawyers offered honest opinions and that everyone from the President and Vice President, who approved use of the interrogation techniques, down to the CIA interrogators, who conducted the torture, operated in good faith.

If, however, that narrative is indeed false – if the lawyers had colluded with the policymakers to create legal excuses for criminal acts – then the Bush-Cheney defense would collapse. Rather than diligent lawyers providing professional advice, the picture would be of Mob consiglieres counseling crime bosses how to skirt the law.

Hand in Glove

Though Bush administration defenders have long denied that the legal opinions were cooked, the evidence has long supported the conspiratorial interpretation. For instance, in his 2006 book War by Other Means, Yoo himself described his involvement in frequent White House meetings regarding what “other means” should receive a legal stamp of approval. Yoo wrote:

“As the White House held its procession of Christmas parties and receptions in December 2001, senior lawyers from the Attorney General’s office, the White House counsel’s office, the Departments of State and Defense and the NSC [National Security Council] met a few floors away to discuss the work on our opinion. … This group of lawyers would meet repeatedly over the next months to develop policy on the war on terrorism.”

Yoo said meetings were usually chaired by Alberto Gonzales, who was then White House counsel and later became Bush’s second Attorney General. Yoo identified other key players as Timothy Flanigan, Gonzales’s deputy; William Howard Taft IV from State; John Bellinger from the NSC; William “Jim” Haynes from the Pentagon; and David Addington, counsel to Cheney.

In his book, Yoo described his work swatting down objections from the State Department’s lawyer and the Pentagon’s judge advocate generals – who feared that waiving the Geneva Conventions in the “war on terror” would endanger U.S. soldiers – Yoo stressed policy concerns, not legal logic.

“It was far from obvious that following the Geneva Conventions in the war against al-Qaeda would be wise,” Yoo wrote. “Our policy makers had to ask whether [compliance] would yield any benefit or act as a hindrance.”

What Yoo’s book and other evidence make clear is that the lawyers from the Justice Department’s OLC weren’t just legal scholars handing down opinions from an ivory tower; they were participants in how to make Bush’s desired actions “legal.” They were the lawyerly equivalents of those U.S. intelligence officials, who – in the words of the British “Downing Street Memo” – “fixed” the facts around Bush’s desire to invade Iraq.

Redefining Torture

In the case of waterboarding and other abusive interrogation tactics, Yoo and Bybee generated a memo, dated Aug. 1, 2002, that came up with a novel and narrow definition of torture, essentially lifting the language from an unrelated law regarding health benefits.

The Yoo-Bybee legal opinion stated that unless the amount of pain administered to a detainee led to injuries that might result in “death, organ failure, or serious impairment of body functions” then the interrogation technique could not be defined as torture. Since waterboarding is not intended to cause death or organ failure – only the panicked gag reflex associated with drowning – it was deemed not to be torture.

The “torture memo” and related legal opinions were considered so unprofessional that Bybee’s replacement to head the OLC, Jack Goldsmith, himself a conservative Republican, took the extraordinary step of withdrawing them after he was appointed in October 2003. However, Goldsmith was pushed out of his job after a confrontation with Cheney’s counsel Addington. Bradbury then enabled the Bush White House to reinstate many of the Yoo-Bybee opinions.

Cheney’s frank comments on “This Week” in 2010 – corroborating that Yoo and Bybee “had done what we asked them to do” – reflected the confidence that former Bush administration officials felt by then that they would face no accountability from the Obama administration for war crimes.

Surely, if a leader of another country had called himself “a big supporter of waterboarding,” there would have been a clamor for his immediate arrest and trial at The Hague. That Cheney felt he could speak so openly and with such impunity was a damning commentary on the rule of law in the United States, at least when it comes to the nation’s elites.

John Yoo apparently shares Cheney’s nonchalance about facing accountability. This weekend, when Yoo was asked about the Russians banning him as a human rights violator, he joked about the athletic skills of Russian President Vladimir Putin. “Darn,” Yoo wrote in an e-mail, “there goes my judo match with Putin.”

Perhaps the ultimate measure of America’s current standing as a promoter of human rights is that it’s difficult to judge which government is the bigger hypocrite: the one in Moscow or the one in Washington.

~

Investigative reporter Robert Parry broke many of the Iran-Contra stories for The Associated Press and Newsweek in the 1980s. You can buy his new book, America’s Stolen Narrative, either in print here or as an e-book (from Amazon and barnesandnoble.com).

April 15, 2013 Posted by | Progressive Hypocrite, Subjugation - Torture, Timeless or most popular, War Crimes | , , , , , , , , , , , , , , , , , , , | Leave a comment

“We’re Witnessing a Reactivation of the Death Squads of the ‘80s”

An Interview with Bertha Oliva of COFADEH

By Alex Main | cepr Americas Blog | March 29, 2013

Bertha Oliva is the General Coordinator of COFADEH, the Committee of Relatives of the Disappeared and Detained in Honduras. Bertha’s husband was “disappeared” in 1981, a period when death squads were active in Honduras. She founded COFADEH together with other women who lost their loved ones, in order to seek justice and compensation for the families of the hundreds of dissidents that were “disappeared” between 1979 and 1989. Since then Bertha and COFADEH have taken on some of the country’s most emblematic human rights cases and were a strong voice in opposition to the 2009 coup d’Etat and the repression that followed.  We interviewed her in Washington, D.C. on March 15th, shortly after she participated in a hearing on the human rights situation in Honduras at the Inter-American Commission on Human Rights (IACHR).  During the hearing she said that death squads are targeting social leaders, lawyers, journalists and other groups and called on the IACHR to visit Honduras in the next six months to take stock of the human rights situation ahead of the November general elections (Bertha’s testimony can be viewed here, beginning at 17:40).  

Q:  On various occasions you’ve said that what you’re seeing today in Honduras is reminiscent of the difficult times you experienced in the ‘80s and I’d like you to elaborate on that.

In the ‘80s we had armed forces that were excessively empowered. Today Honduras is extremely similar, with military officers exercising control over many of the country’s institutions.  The military is now in the streets playing a security role – often substituting for the work of the police forces of the country.

In the ‘80s we also witnessed the practice of forced disappearances and assassinations. In that era it was clear that they were killing social leaders, political opponents, but they also assassinated people who had no ties to dissident groups in order to generate confusion in public opinion and try to disqualify our denunciations of the killings of family members who were political opponents.

Today they assassinate young people in a more atrocious fashion than in the ‘80s and we’re seeing a marked pattern of assassinations of women and youth.  And within this mass of people that are assassinated there are political opponents.  We refuse to dismiss these assassinations as simply a result of the extreme violence that we’re experiencing, as they try to tell the country.  We say that it is a product of impunity and Honduras’ historical debt for failing to resolve cases perpetrated by state agents…

In the ‘80s the presence of the U.S. in the country was extremely significant.  Today it’s the same.  New bases have opened as a result of an anti-drug cooperation agreement signed between Honduras and the U.S.

In the ‘80s it was clear that political opponents were being eliminated.  Today they’re also eliminating those who claim land rights, as exemplified in the Bajo Aguán.  More than 98 land rights activists have been assassinated.  The campesino sector in the Bajo Aguán has been psychologically and emotionally tortured on top of the physical torture that certain campesino leaders have been subjected to.

Q:  Today in the hearing on human rights in Honduras at the Inter-American Commission on Human Rights you discussed death squads. Death squads were active in the ‘80s and now you believe that this sinister phenomenon is coming back.

It’s certain that death squads are a product of the impunity that we’ve seen in Honduras. The death squads of the past were never really dismantled.  What we’re witnessing is a reactivation of these death squads.  And we’re seeing it quite clearly.  We’ve seen videos of incidents in the street where masked men with military training and unmarked vehicles assassinate young people. There is the recent case of the journalist Julio Ernesto Alvarado who gave up his news program from 10pm to midnight on Radio Globo because members of a death squad came to kill him, and to save his own life he had to stop doing his program.

In Honduras we had a military coup d’Etat and this resulted in persecution, an implosion of the state’s institutions which has left us with a dysfunctional judicial system and this has provided cover to those who wish to break the law.

And, what’s worse, state agents seem to have no political interest in improving and changing the situation.  What we’re witnessing is a growing professionalization of the capacity to justify illegal acts: authorities’ assertion that they intend to investigate these acts, when that’s simply not true.  In reality it seems the intention is to continue terrorizing the Honduran people, to make them submissive so as to undermine citizen action.

What we’d like to see in Honduras is real action to try to prevent crime rather than continued justification of the lack of progress of investigations into crimes.

Q:  COFADEH is providing legal counsel to the victims and the families of the victims of the emblematic case that took place in May of last year in Ahuas, in which there was a police operation that involved U.S. agents and Honduran security agents that killed four people and injured a few others.  Can you discuss the status of that case, over ten months after the killings took place?

Yes, we are the legal representatives of the victims in this case and, on the one hand, we are filing a complaint with Honduras’ judicial authorities to show or verify the responsibility of Honduran agents and DEA agents that participated in this incident.

But we’re also trying to reach out to the general public so that the case is better known and debated as this is the only real recourse we human rights defenders have: publicly denouncing the incident to see whether this will allow for some protection of the victims and of ourselves.  But legally we see this as a very difficult case to move forward and this is where we can see that the authorities aren’t interested in investigating, let alone sanctioning, those responsible.  The crime of the tragic attack against this indigenous community has been compounded by the crime of violating due process in the investigation.

We the legal representatives of the victims should have access to the case file. The Public Ministry [equivalent to the Attorney General’s Office in the U.S. – ed.] shouldn’t allow any obstacle to come in the way of our access to the file.  They can’t legally prevent us from learning about the actions that have been taken in the course of the investigation because we are part of the defense.  It is prohibited for either of the parties to be denied access to the case file.  The file can be classified with regard to the general public, but not with regard to the parties representing the victims and the accused.

We haven’t seen all the files in this case.  They haven’t been inserted in a binder [as is normally the case] in order to allow them to remove information when we ask for the file.  How can we participate effectively in a trial when we can’t see all of the case file?

Q: And what evidence do you have of their having removed parts of the case file before sharing it with you?

One is that when we’ve been shown the case file it basically only contains documents that we’ve produced.  We know the Public Ministry has carried out its own investigations; it has carried out the exhumation and autopsies of the deceased victims’ bodies for instance.  As a side note, we weren’t informed that they were carrying out the exhumations of the victims.  We’re left with the impression that the intention isn’t to find evidence but rather to remove [borrar] evidence… Our Public Ministry should be called a “Public Laundromat” because they’re engaged in destroying evidence.

Q: So you didn’t see the reports on the exhumations and autopsies of the victims in the Ahuas case file?

We haven’t seen them, just as we didn’t see the report that was sent by [Honduran Attorney General equivalent] Luís Alberto Rubi to the State Department of the United States.  This indicates to us that they remove information and documentation from the case file that they don’t want us to see.

The Public Prosecutor [Attorney General equivalent] sent a report to a representative of the State Department, Maria Otero, with – for instance – the names of the Honduran police agents and military personnel that participated in the operation, though not the names of the DEA agents, with the apparent goal of barring them from any sort of responsibility.

Q:  But you did end up managing to see the Public Ministry report sent to the State Department?

Yes, but not through the Public Ministry, but thanks to people outside Honduras who managed to get hold of a copy.

Q:  In this report there is information based on testimony provided to the Public Ministry by police agents that participated in the Ahuas operation.  Have you been able to see any of this original testimony?

No, we haven’t seen any of the testimony of the police agents.

Q:  What is the current situation of the surviving victims of the Ahuas incident, and of the families of the victims?

The situation of the families, of the survivors, of the community is really very critical.  They are emotionally and psychologically affected.  Being on the receiving end of an armed aerial attack is a shock for a remote community that never expected an attack of this nature.  Some of the community members were woken up by armed agents, were physically attacked and had certain belongings stolen.

I think that those that survived are no longer directly threatened but not all of them have recovered their physical abilities.  For instance, a young man sustained a serious injury to his hand requiring an operation that cost 100,000 lempiras [over $5,000 – ed.].  Where can this boy, who doesn’t have anything, find this kind of money?

COFADEH ended up having to take care of him and he’s still in treatment in Tegucigalpa, far from his community.  We are paying for his treatment and lodging him, feeding him and paying for his studies.  This is the responsibility of the state and it has refused to assume this responsibility even though we requested urgent protective measures from the state.  The state is good at providing technically well-designed reports before the Inter-American Commission on Human Rights, but it has been incapable of dealing with the needs of the survivors of this attack.

This sort of thing is a clear demonstration of their lack of interest in resolving and combatting the insecurity we’re experiencing, the political violence and the high level of impunity.

Q:  What about the other injured victims?

We’ve had to bring them to Tegucigalpa to be treated.  In the case of one boy they left studs [clavos] jutting out of his arm.  He almost lost his arm because after the operation they sent him back to his community but with no medicine.

We’ve also had to provide care for other relatives of the survivors and the deceased victims.  It’s impressive the level of neglect of these victims on the part of the state.

We [the human rights defenders] return to our country with the fear that the attacks will extend to us as a result of our decision to come and denounce a state that has shown itself incapable of assuming its responsibility.

Q:  COFADEH has received threats and recently its offices were raided.  Can you talk to me about your situation, your vulnerability, and what people in the U.S. can do to help?

Our situation isn’t good at all.  I confess that we’re frightened because we love life, that’s why we dedicate ourselves to defending the lives of others.  And I don’t want to die or be tortured.  And I don’t want to have to confront state agents.  But despite their machinery of hate and actions against us, they should know that they can’t stop us.

Fortunately we can count on support from people in the U.S. and the rest of the world, and I can reaffirm today that this support and this commitment of people abroad inspires us and makes us feel less alone.  Because the worst that can happen for a human rights defender facing threats is to feel alone.  That’s why we call on you to continue supporting us to defend the life and liberty of the citizens that need our help.

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March 31, 2013 Posted by | Civil Liberties, Subjugation - Torture | , , , , , , , | Leave a comment