Framed: Prosecuting Officials for Crimes

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Framed: Prosecuting Federal Officials for Major Crimes

Torture, Spying and Defense of Democracy

Throughout history, some public officials have used their positions of power to commit illegal acts, often for personal gain. The normal actions of government and civic involvement are a suitable response to such crimes.

However, during the George W. Bush administration it became clear that some officials were willing to use crime to undermine democracy and to use the power of the federal government to obtain through the powers of government ends that they could not secure through private means. They abused state power to further ideological and special interest goals.

To these ends, Bush officials committed serious crimes, including:

  • Significant material violations of constitutional rights,
  • International war crimes, and
  • Federal felony crimes.

Bush officials have stated publicly that they committed these acts, which should be sufficient to cause those responsible for enforcing the rule of law to indict them and bring them to trial. Specifically, officials in the Justice Department have cause to bring charges for:

  • All activity in furtherance of torture of any detainee under federal jurisdiction under federal and international law.
  • Spying on Americans in violation of FISA and rights specifically enumerated in the Constitution.
  • Holding prisoners in violation of habeas corpus, a right specifically enumerated in the Constitution.

Torture, spying and abuse of the justice system are all crimes that one or more Bush officials have confessed to the public. For an extensive list of references on torture, please see the Torture Timeline. For up-to-date information about prisoner abuse in Iraq, Afghanistan, and elsewhere, please see the Prisoner Abuse project.

All officials of the federal government, including the President, members of Congress and federal judges, are sworn to uphold the Constitution upon taking office. Therefore, knowingly allowing any official to violate that Constitution, especially in the commission of a serious crime, is dereliction of duty.

The officials of the federal government hold office as representatives of the people of the United States. The people are sovereign and therefore have a right to know all that such officials do and to hold them accountable under the law for their actions. As the sovereign of the nation, they also have an obligation to see that officials perform according to the law and in the best interests of the country. It is therefore incumbent on all citizens to demand that officials known to have committed serious crimes be brought to trial.

There are three legal and proper methods for holding officials accountable:

  • Petitioning current members of Congress and the President to investigate and pursue criminal trials against any official known to have possibly committed a serious crime.
  • Use the power of the ballot box to vote against any member of Congress that does not diligently seek investigations and prosecutions of these known offenders.
  • Use all legal means to change the Constitution to allow direct indictment by petition and then indict by petition those who are known to have participated in the ordering or execution of torture, spying and other serious crimes.

Officials in Switzerland have threatened to arrest George Bush under the International Conventions Against Torture (ICAT) if he travels there, based on allegations by the Center for Constitutional Rights that he knew about and ordered torture during his administration. The CCR case is laid out in an Indictment (PDF) that details his known participation in meetings that led to torture. For a list of participants and information on them, see the Center for Torture Accountability.

Frames

After the Bush Administration left office, the question arose as to whether officials from that administration that committed crimes would ever stand trial. The Obama Administration has not sought so far to prosecute even one of these individuals. Congress had the option to impeach these officials during the Bush Administration, but failed to do so. The current Congress has launched scattered investigations, mainly in response to the outrage of certain members of Congress over the brazenness with which Bush officials committed these crimes and the outrageous damage they have done to governance. Both Republicans and Democrats (as well as visible public speakers of various stripes, especially conservative pundits) have made arguments for or against investigations and/or prosecutions. Among the arguments for prosecution, we have:

Attack Frames (Use)

  • Rule of Law: These people broke the law and not prosecuting them weakens the rule of law. Investigations and trials are the normal operations of government and short-circuiting them is itself a violation of law.
  • National Legitimacy: The United States has publically promoted human rights around the world for decades. Failing to prosecute officials for torture undermines the moral standing of the country and makes it difficult to argue against human rights abuses in other countries.
  • Defense of Democracy: The specific crimes of the Bush Administration weaken democracy by making it possible to spy on the political opposition and by creating a dictatorship where no actions of the executive can be checked by legislative or judicial action.
  • Official Policy: Until these specific crimes are litigated in court, the only safeguard against their further use is self-restraint of the executive. This is flawed because it depends on the good of the person, not on the rule of law. Further, the exact limits have not been set by legitimate governmental process, so no one knows what is acceptable and what isn’t. This ambiguity can be exploited by any malevolent force within the government to abuse power.
  • Ending Abuse of Power: The executive is naturally disposed to abuse power and will only refrain if it is clear that there is sufficient political will and ability to push back. Failing to prosecute accepts the unitary executive principle as a possible outcome, and that principle may be used by future officeholders unless it is repudiated.
  • Patriotism: The principles embodied in the Constitution represent what it means to be an American. Violation or repudiation of those principles is unpatriotic.
  • The Future: Across many of these arguments is the fact that what happens with prosecutions will determine what standards we set for the future. If we thoroughly investigate and prosecute, then we are setting a high moral standard both for the United States and other countries. If we don’t, then we accept low morality in public officials, which will enable future governments to use torture, illegal spying, and other human rights violations for whatever ends they want in both this country and others.

There is also the practical consideration that abusing detainees, many of whom have been picked up in the Muslim world, is a great recruiting tool for our enemies there. As such it is a danger to national security. While this is a compelling argument in practical terms, the kinds of torture and spying perpetrated by the Bush Administration are illegal and cannot be condoned regardless of the practical considerations.

Among arguments against prosecution, we have:

Defense Frames (Don’t use)

  • Don’t Look Back: Some argue that we should ignore the crimes of the Bush Administration because we’ve turned the page and we have a new President who doesn’t allow these kinds of crimes.
  • The National Defense: Some have argued that these laws were broken to defend the country from harm, and that national defense is more important than defending rights. In this defense, the idea is that without criminal behavior by officials some major attack against the country would have occurred, so they saved the lives of innocent people.
  • Unitary Executive: Some have argued that the executive branch of government doesn’t have to follow federal law or the Constitution because the nature of the office is such that it has inherent power to operate outside the law.
  • Weakness: Some have argued that committing these acts was necessary in order to defeat enemies of the United States (such as al Qaeda or “Islamic extremists”). If we don’t use these techniques, thinking goes, then we will appear “weak” to our enemies.
  • We Only Did It a Little: Torture was only used on a few, extreme cases, so it’s okay.
  • A Few Bad Apples: Some have argued that any real criminal behavior was only committed by a few, low-level people that went beyond official policy.
  • The Ticking Time Bomb: Some have argued that officials need to be able to commit crimes such as torture in order to stop imminent attacks.
  • The Wounded Intelligence Defense: Some have argued that prosecuting these crimes will have a chilling effect on intelligence gathering by causing the hardened intelligence operatives in the CIA and other intelligence agencies to hold back on activity that might be questionable for fear of later being prosecuted.
  • The Legal Defense: Some have argued that because legal “experts” “studied” interrogation techniques and wrote opinions that they weren’t “torture” that technically they didn’t violate the law.
  • The Legislative Defense: The Bush Administration tried to co-opt members of Congress into participating in their illegal activity, even going as far as to have Congress pass bills that claimed that certain actions (such as spying without warrants or holding people indefinitely in prison) did not constitute illegal behavior.
  • Let’s Get the Whole Truth Out: Some have argued that if the country just knew how valuable breaking the law is to keeping them safe that they’d be all for it, but unfortunately you can’t tell the public the truth without compromising national security.
  • The Political Defense: Some have argued that decisions about torture and spying are political decisions, not legal ones, so any attempt to hold culprits responsible is “criminalizing politics”.
  • The Practical Defense: Some have argued that prosecutions will make it too hard for future officials to defend the country. The argument is that these actions have saved lives, so they must be preserved to use in the future.
  • The Stupid Defense: Some have argued that it’s okay to torture these detainees because they are “terrorists”. The thinking is that “liberals” are so intent on protecting the rights of these horrible people that they will let the country be destroyed in the process.

Using Frames

Proponents of keeping official actions legal need to be able to use the attack frames above to press home the need for investigations and prosecutions. Likewise, they need to be able to counter defensive frames of the apologists. It is important first to understand the defensive frames and their weaknesses. Opponents of accountability try to bring up as many of these as possible and go on from one to another in order to prevent rebuttal.

It is important to immediately confront each frame as it occurs. To do this, we must often put our foot in the door to prevent a filibuster with something like “Let’s talk about that” interjected when the defensive frame first comes out. Another option is, “Let me make a note and we can come back to that.”

On the offensive side, the most important point to get across is the Defense of Democracy point, following up with The Future. The whole reason why this is important has to do with what kind of a country and what kind of a world you want to live in. Make it real to the audience. Do they want to live in a police state, a dictatorship? We are already living in a soft dictatorship. Now is the moment to repudiate this, or we lose democracy, probably forever.

For hardcore, right-wing pundits, the point to lead on is patriotism. Constitutional rights are what define being an American. There is no common racial or ethnic definition of “American”. That which binds us together is our belief in core values as represented by the two dozen distinct guarantees of rights in the Constitution. Selling out the Constitution is unpatriotic behavior. Since right-wing pundits have made much of their “patriotism”, attacking them on this issue fixes their attention so that you can hit them with the other attack points.

Opposition Examples of Use

[We should have examples from others besides Dick Cheney, but he was so prolific that he seems to have wiped the others away. Please add examples from others that fit.]

Here are some examples of how apologists for this illegal behavior have tried to justify it:

Excuses: The National Security Defense, The Legal Defense “In the years after 9/11, our government also understood that the safety of the country required collecting information known only to the worst of the terrorists. And in a few cases, that information could be gained only through tough interrogations. In top secret meetings about enhanced interrogations [torture], I made my own beliefs clear. I was and remain a strong proponent of our enhanced interrogation program. The interrogations were used on hardened terrorists after other efforts failed. They were legal, essential, justified, successful, and the right thing to do. The intelligence officers who questioned the terrorists can be proud of their work and proud of the results, because they prevented the violent death of thousands, if not hundreds of thousands, of innocent people.” Dick Cheney, 21 May 2009

Excuse: The Political Defense “Some are even demanding that those who recommended and approved the interrogations be prosecuted, in effect treating political disagreements as a punishable offense, and political opponents as criminals.” Dick Cheney, 21 May 2009

Excuse: We Only Did It a Little “It is a fact that only detainees of the highest intelligence value were ever subjected to enhanced interrogation [torture]. You’ve heard endlessly about waterboarding. It happened to three terrorists.” Dick Cheney, 21 May 2009

Excuse: The Ticking Time Bomb “We had a lot of blind spots after the attacks on our country. We didn’t know about al-Qaeda’s plans, but Khalid Sheikh Muhammed and a few others did know. And with many thousands of innocent lives potentially in the balance, we didn’t think it made sense to let the terrorists answer questions in their own good time, if they answered them at all.” Dick Cheney, 21 May 2009

Excuse: A Few Bad Apples “In public discussion of these matters, there has been a strange and sometimes willful attempt to conflate what happened at Abu Ghraib prison with the top secret program of enhanced interrogations [torture]. At Abu Ghraib, a few sadistic prison guards abused inmates in violation of American law, military regulations, and simple decency.” Dick Cheney, 21 May 2009

Excuse: The Legislative Defense “On numerous occasions, leading members of Congress, including the current speaker of the House, were briefed on the program and on the methods.” Dick Cheney, 21 May 2009

Excuses: The Practical Defense, The Wounded Intelligence Defense “Those are the basic facts on enhanced interrogations. And to call this a program of torture is to libel the dedicated professionals who have saved American lives, and to cast terrorists and murderers as innocent victims. What’s more, to completely rule out enhanced interrogation methods [torture] in the future is unwise in the extreme. It is recklessness cloaked in righteousness, and would make the American people less safe.” Dick Cheney, 21 May 2009

Excuse: Weakness “And when they see the American government caught up in arguments about interrogations, or whether foreign terrorists have constitutional rights, they don’t stand back in awe of our legal system and wonder whether they had misjudged us all along. Instead the terrorists see just what they were hoping for – our unity gone, our resolve shaken, our leaders distracted. In short, they see weakness and opportunity.” Dick Cheney, 21 May 2009

Excuse: Let’s Get the Whole Truth Out “I believe this information will confirm the value of interrogations… If Americans do get the chance to learn what our country was spared, it’ll do more than clarify the urgency and the rightness of enhanced interrogations.” Dick Cheney, 21 May 2009

Excuse: The Stupid Defense “Why is it that people like Jesse Ventura are so concerned about how we treat people like Khalid Sheikh Mohammed?” I think Joe Scarborough just gave the game away


Responses

Here are some of the responses to defensive arguments that can be used:

  • Don’t Look Back: This defense has been made by the Obama Administration to justify not prosecuting. Its problem: Even if the current administration doesn’t step over the line, that doesn’t bind future administrations to the law. Not that it’s clear the current administration is abiding by the law. Also, the logic is flawed. This is like the police saying, “I’m not robbing you and no one else is at the moment, so I’m not going to do my sworn duty and arrest the guys who robbed you blind yesterday.” Beyond that, prosecuting those who violate the rights of citizens is important to a wide variety of necessary actions. How do you argue for public healthcare if you can’t guarantee that violations of privacy by the administration are found and prosecuted?
  • The National Defense: The Constitution does not have an exception in it for this kind of “necessity” defense. Implicit in the document is the idea that all activity will be conducted within the law. Nor is it necessary to violate constitutional, international or federal law in order to protect the country. Somehow, the federal government has done this for over two centuries without resorting to lawlessness, even in the face of a worldwide communist threat.
  • Unitary Executive: Nothing in the Constitution suggests that the executive (or either of the other branches) has the inherent power to violate the law. In any case, it is illogical to say that the document which gives these branches power can be violated by one of them. In addition, the structure of the Constitution strongly suggests that Congress, as the most representative of the people, is first among equals in deciding what is to be done. Beyond that, the modern world is a very complex place that presents problems beyond the understanding and reasonable response of any one person. The only way to reliably deal with these complex problems is to act through the normal channels of the system. Going it alone may seem necessary to an individual but from a rational point of view it is the least likely to result in the right answer.
  • Weakness: Impressing our enemies is not a winning strategy. The winning strategy is to impress the billions of people in the world who are on neither side, thus enlisting them to our cause. To show that we stand for human rights even when we don’t find it convenient for ourselves is the way to encourage that across the world, and thereby lift areas of the world out of moral darkness.
  • We Only Did It a Little: No, it’s not okay because it only happened a little bit. If you murder someone, the police and courts don’t ignore you because you aren’t a serial killer.
  • A Few Bad Apples: The fact that low-level people committed crimes does not excuse high-level officials of creating an entire system to commit torture or to spy without warrants. The few bad apples at the top should go on trial, just like any from the bottom of the barrel.
  • The Ticking Time Bomb: Since torture is unreliable, it makes no sense to use it during a high-pressure situation. Anyone who thinks it is useful to stop an imminent attack is too inexperienced with interrogations to be trusted with such a decision.
  • The Wounded Intelligence Defense: Clear guidelines on what is right and what is wrong did not impede our intelligence efforts prior to the Bush Administration, and they won’t in the future. If anything, knowing where the public stands on this, where the courts stand, where the law stands, and where Congress stands would be useful to helping intelligence officers know exactly what they can and cannot do in their operations. Another fallacy here is that some specific piece of information is necessary for the safety of the country. Given the scope of intelligence gathering in the modern world we gain more by enlisting allies than by any specific piece of intelligence.
  • The Legal Defense: The settled law on this is that all those who participate in facilitating torture are war criminals. It doesn’t matter whether you order it, excuse it, or personally execute it--all are guilty. The rules were clear going into this, and anyone who broke them did so in the face of overwhelming existing precedent. On the issue of illegal spying, the thrust of the Constitution is clear: people have a right to privacy and the government is bound to protect it.
  • The Legislative Defense: This shows that the perpetrators knew they were committing a crime. They tried to, and in some cases succeeded in, co-opting Congress to either acquiesce to criminal behavior or try to write legislation to excuse or pardon it. To these ends they got Congress to pass the Military Commissions Act and the so-called Patriot Act, both of which contain sections of unconstitutional material that cannot be considered law. They brought in congressional leaders and told them things that were obviously intended to either mislead them or to try to turn those they could into accomplices. All of this suggests that they knew they were doing something that they shouldn’t be.
  • Let’s Get the Whole Truth Out: It may be true that weak individuals can be persuaded to break the law if you dangle a big enough carrot in front of them. However, illegal activity is still criminal, even if you think the payoff is huge.
  • The Political Defense: If you don’t want to be called a criminal, then don’t participate in criminal behavior. Just because someone is a politician doesn’t mean that all charges they committed crime is using the law to fight a political argument. In this case, the fact that these people are on the losing side of politics has nothing to do with the fact that they also broke the law.
  • The Practical Defense: The point of prosecutions is to make it harder to commit these illegal acts in the future. If they were legal, it might be open to question whether we should foreclose on their use. However, there is no situation in which they will become legal. Foreclosing on them has no cost.
  • The Stupid Defense: (I call it this because it comes out of an argument that is so logically flawed it would only be believed by stupid people.) The problem with this argument is that we are not defending the rights of terrorists. For one thing, there’s no proof they are terrorists because they haven’t had trials. For another thing, even if they were, we aren’t defending their rights, we are defending our rights.


Publicizing the Frame

The primary argument is as follows:

The future of democracy is at stake. We are faced with a choice of stopping illegal and undemocratic activity committed by officials of our government vs. letting this become accepted practice that can be picked up at a future time and used to complete the fashioning of a dictatorship. We are also faced with the choice of letting some of this behavior continue under the Obama Administration vs. setting limits and stopping it.

Do you want to be associated with criminals? Or, do you favor the rule of law?

Other Resources to Draw On

  • Debate Over Interrogation Methods Sharply Divided the Bush White House by Mark Mazzetti and Scott Shane, who report in the New York Times that torture was scaled back in later Bush Administration years, especially after C.I.A. inspector general, John L. Helgerson, filed a "devastating" report on its illegality.
  • Obama Would Move Some Detainees to U.S. by Sheryl Gay Stolberg in the New York Times, who reports on speeches by President Barack Obama and former Vice President Dick Cheney at the National Archives, where each put forth their views on official torture of detainees in U.S. custody.
  • Text of Dick Cheney's speech at the National Archives defending torture in the Bush Administration, as reported by The Weekly Standard.
  • Congress's Torture Bubble op-ed by Vicki Divoll in the New York Times, who notes that the excuse Speaker Nancy Pelosi and others use that they couldn’t reveal Bush torture policies because they might face criminal prosecution is bogus because the "speech and debate clause of the Constitution shields senators and representatives from civil and criminal liability".
  • When Israel Confronted and Rejected Torture editorial by Serge Schmemann in the New York Times, reminds us how Israel dealt with the "use of violence in interrogations."
  • No Accountability: Two Generals Who Enabled Torture by Valtin looks at how portions of the military establishment both supported and helped cover-up the use of torture.
  • Yoo Ordered to Testify in TortureGate by Ralph Lopez links to reports that John Yoo has been ordered by a court to answer "accusations that his work led to a prisoner’s being tortured and deprived of his constitutional rights." Similarly, John Yoo Ordered to Testify in Court on His Complicity in Torture by David Swanson.
  • Forever at Square One With Torture Defenders by Danps notes that apologists on the right are willfully ignoring the details and the seriousness of the torture perpetrated by the Bush Administration.
  • Sen. Whitehouse floor speech = Torture Storyline False by Jqjacobs links to video of Sen. Sheldon Whitehouse speaking on the Senate floor and detailing how the entire story the Bush Administration told on torture was a complete fabrication, a lie in every detail.
  • CIA Still Trying to Suppress Torture Evidence by Mcjoan cites reports from the Washington Post that the CIA is trying to suppress "graphic details" about how the agency handled detainees, indicating that the agency knew it was torturing them.
  • Accountability for Torture by Mcjoan describes essential elements of the ACLU Accountability for Torture campaign.
  • Accountability for Torture from the American Civil Liberties Union (ACLU) is providing a website to help bring more focus on the problem and provide resources for bringing those responsible to justice.
  • Accountability for Torture, Accountability for the Dead by Mcjoan details accounts of detainees who died from apparent torture.
  • Why Accountability Matters for Peace by possum notes that failing to bring accountability can have negative impact on future prospects for peace, or as Archbishop Desmond Tutu noted, “As painful and inconvenient as justice may be, we have seen that the alternative—allowing accountability to fall by the wayside—is worse.”
  • Children tortured before parents, raped, all covered up by Bush/Cheney and our media by MinistryOfTruth links to resources about torture and related behavior by personnel the U.S. placed in Iraq.
  • JAG Wins, Calling Out Yoo & Cheney in Court for War Crimes in Jawad Child Torture Case by FishOutofWater documents Major David J.R. Frakt, JAG, calling out “enablers of torture” in the Bush Administration as “war criminals” in his closing arguments with the military tribunal trying Mohammed Jawad, the 12-year-old detainee abused by officials at Guantanamo (and now ordered released by the tribunal).
  • The Bush CIA was freakin' crazy by David Waldman expands on a New York Times article by Mark Mazzetti which reports that the CIA hired Blackwater contractors to assassinate top Al Qaeda operatives.
  • Nine Republicans Tell Holder "Don't Go There" on Torture by Ralph Lopez reports on why Republicans are pressuring the Attorney General to not prosecute now.
  • PHR: CIA Docs Role in Torture Worse than We Already Knew by Mcjoan highlights a report by Physicians for Human Rights that suggests data collection on torture amounts to human experimentation, which may constitute a “previously unknown category of ethical violations committed by CIA physicians and psychologists.”
  • CIA Experiments on U.S. Soldiers Linked to Torture Program by Valtin adds more information and references to articles on the question of human experimentation, and concludes that the Office of Legal Council may have suppressed evidence that the techniques in question were known to be harmful.
  • Judge Confirms That an Innocent Man Was Tortured to Make False Confessions by Andy Worthington on Huffington Post reports that “the U.S. government tortured an innocent man to extract false confessions and then threatened him until he” repeated those lies. (Via US Judge confirms torture used to obtain false confessions by MinistryOfTruth.)
  • Prisoner Abuse in Afghanistan, Iraq and Elsewhere collects, organizes and publishes information from members of the public about the torture and abuse of American prisoners.
  • In ’04 Interview, Cheney Denied C.I.A. Leak Role by David Johnston in the New York Times reports that VP Dick Cheney denied any role in the disclosure of the identity of Valerie Wilson as an intelligence officer, which conflicts with testimony by his chief of staff, I. Lewis Libby Jr. (From diary by ericlewis0).
  • Why Isn't Gates Blocks Torture Photos Bigger News? by “RFK Lives” notes that the New York Times reported in Gates Blocks Photographs of Prisoners that Defense Secretary Robert M. Gates has blocked the release of more photographs of foreign detainees abused by their American captors.
  • On eve of receiving Nobel, Obama's DOJ files amicus brief upending Nuremberg Protocols by ImpeachKingBushII discusses a report in The Huffington Post that the Obama Department of Justice is claiming in an amicus brief that DOJ lawyers that counseled and sanctioned crimes against humanity are immune from lawsuits.
  • Yoo's defense of torture by citing Lincoln is nonsense by 8ackgr0und N015e covers the errors in John Yoo’s comparison of the Bush Administration decision to torture prisoners with Abraham Lincoln’s Emancipation Proclamation.
  • J'ACCUSE! by Teacherken reminds us that many of these crimes and their cover-ups are like those in the Dreyfus affair (1894 in France).
  • Revealed: CIA Cable "Granting Permission" to Destroy Torture Videotapes by Valtin summarizes reports that the CIA correspondence during the time that the press was beginning to report deeply on the torture of Abu Zubaydah and other related events concerned destroying the videotapes of CIA torture.
  • ICC Complaint Filed Against Bush, Cheney, Rumsfeld, Tenet, Gonzales, Rice by David Swanson reports that Professor Francis A. Boyle of the University of Illinois College of Law in Champaign, U.S.A. has filed a Complaint with the Prosecutor for the International Criminal Court (I.C.C.) in The Hague against Bush officials for crimes including "extraordinary rendition".
  • Close Guantanamo, End Torture by Mcjoan summarizes reports about the continued mistreatment of detainees and efforts by former combat veterans to meet with members of Congress and urge the closing of the detention center at Guantanamo Bay.
  • Charge a President with Murder by MinistryOfTruth reminds us that the Obama Administration is still not holding Bush Administration officials accountable, with updates on the accountability movement.
  • Holder/DoJ Cover-up on Torture Memos Investigation: Who is David Margolis? by Valtin summarizes reports on the Department of Justice Office of Professional Responsibility report that may indicate that it was doctored by the Obama Justice Department to reduce the culpability of Jay Bybee and John Yoo.
  • Justice Clears Yoo, Bybee in Torture Memo Probe by Mcjoan reports that Newsweek is confirming that the Office of Professional Responsibility report will clear Yoo and Bybee of misconduct after being “softened” from an earlier finding.
  • Cheney -- This is Waterboarding by Rb137 describes in detail why waterboarding is torture with a thorough analysis of the physiological responses that make it “water torture”.
  • Morning Joke Defends Torture Apologist Thiessen by Vyan methodically explains the facts that refute Marc Thiessen and his premise that the Obama Administration is inviting terrorist attacks because of the way they are handling terror, with many references.
  • OPR: Torture Lawyers Get a Pass; I Get Referred for Criminal Prosecution and Bar Discipline by Jesselyn Radack reminds us that with the Justice Department's Office of Professional Responsibility (OPR) decision he remains the only one disciplined for the torture (and that for advising that the government provide counsel to those accused).
  • National Shame Yoo's "Gift to the Obama Presidency" by Avenging Angel gives us about all we can stand on John Yoo wallowing in his victory over justice after the OPR didn't actually accuse him of violating international law.
  • The 12th Form of Torture: Mock Burials by Mcjoan traces more details coming from the Justice Department's Office of Professional Responsibility report showing that the CIA requested permission to use mock burials and were denied specific permission.
  • STUNNING! Maddow interviews Pelosi on Bush War Crimes, impeachment and "Looking forward" by MinistryOfTruth covers Rachel Maddow's interview with Speaker Nancy Pelosi where she asks the Speaker about her tepid response to Bush Administration crimes.
  • Holder Defends Civilian Courts for Terror Suspects by Mcjoan summarizes some of the testimony by Eric Holder in front of the House Appropriations Subcommittee on Commerce, Justice and Science, in which he keeps an option open to use military tribunals, but denies that holding civilian trials is coddling the defendants.
  • Open Thread for Night Owls: Milgram Redux by Meteor Blades recounts a recent documentary (The Game of Death) from France that shows contestants willing to shock a subject to death on a faked game show, confirming Stanley Milgram's experiment where subjects showed their willingness to inflict electric shocks on others under instructions from an authority.
  • Federal Judge Rules Bush Illegally Wiretapped Americans by Mcjoan references Wired.com report that Judge Vaughn Walker has ruled that the Bush administration illegally eavesdropped on American lawyers representing Al Haramain and that the attorney could pursue civil remedies.
  • The Prison Unit Where You Can't Even Hug Your Child by Something the Dog Said reports on the Communications Management Units of federal prisons, where prisoners have all communications monitored and are prevented from any physical contact with their families, and which have been disproportionately populated with Muslims.
  • Bush and Obama Wiretapping Ruled a Felony Today w/Poll by Pluto considers the implications of the ruling by Judge Vaughn Walker and contains information from PrivacyInternational.org that shows the U.S. is among the world's top surveillance countries.
  • WaPo Wants Immunity for War Crimes by David Swanson notes that some are trying to undermine the International Criminal Court by arguing that it should not prosecute wars of aggression, despite the fact that this "is the supreme international crime".
  • I didn't realize it was "crazy" to want war crimes punished. by 8ackgr0und N015e recounts the basis of the case for war crimes trials against Dick Cheney and other Bush Administration officials.
  • Torture Tapes Destruction and "Looking Backward" by Mcjoan contrasts the Obama policy of not looking back on the torture tapes (the destruction of which it is now revealed Porter Goss approved) with the decision to pursue prosecuting NSA whistle-blower Thomas Drake.
  • Greenwald: Obama DoJ prosecutes Bush corruption whistleblower, but not Bush war crimes by MinistryOfTruth holds up the double-standard of the Obama Administration which is pursuing an indictment against Thomas Drake (for allegedly spilling secrets about failures and cost overruns at NSA) while failing to pursue indictments against those in the Bush Administration responsible for war crimes, torture, and illegal spying.
  • Iraqi Torture Victims Appeal Civil Suit To Supreme Court by Something the Dog Said notes reports that the Center for Constitutional Rights is asking the Supreme Court to review a judgment by a lower court that let contractors CACI and L-3 Services off the hook for alleged torture at Abu Ghraib and created a huge loophole for contractors to avoid accountability for crimes committed near battle zones.
  • "Yeah, we waterboarded Khalid Sheikh Mohammed. I'd do it again..." by Amnesty International USA reminds us that George Bush recently admitted to the international war crime of torture and that previous U.S. courts have held that torturers can be tried in U.S. courts.
  • NYT Editorial Calls for Investigations on Illegal Torture Experiments by Valtin reports that the New York Times editorial calls for investigations by the executive branch and Congress of the charges of illegal human experimental research undertaken in support of Bush and Cheney’s torture program.
  • No Accountability For Rendition In US, But Maybe In Canada by Something the Dog Said reports that the Royal Canadian Mounted Police are investigating U.S. and Syrian officials for crimes related to rendering Mr. Maher Arar, a Syrian born Canadian citizen, to Syria, where he was allegedly tortured, although the SCOTUS has turned down his request to hear his case.
  • Jon Stewart Slams Obama. It's About Time! by That Korean Guy discusses Jon Stewart's extensive video review of the Obama Administration's hypocrisy and backtracking on civil rights, including his support of renditions and failure to hold Bush Administration officials accountable for torture and other crimes (with a link to the video).
  • Establishing a New Normal by the ACLU introduces their 18-month review of national security, civil liberties, and human rights under the Obama Administration, in which they say (in part) that there is a “very real danger” that the Obama Administration “will institutionalize some of the most troublesome policies of the previous administration—in essence, creating a troubling 'new normal.'”
  • New domestic surveillance details emerge by Deep Harm alerts us to two domestic surveillance programs (Project Vigilant and Recorded Future) recently exposed, which use Internet analysis to spot potential terrorists and other criminals, but might also be used to invade the privacy of ordinary citizens.
  • L.A. Times Gets It: Obama's Attack on the Media by Jesselyn Radack cites this story in the L.A. Times about efforts by the Obama Administration to intimidate whistleblowers using criminal indictments in a more aggressive policy on leaks than the Bush Administration had.
  • Obama Wins Appeal! No Trial for Rendition Torture Victims! by Valtin notes that the 9th Circuit Court of Appeals has ruled 6-5 to dismiss the lawsuit of five men kidnapped and tortured by the United States government is dismissed, as trespassing upon "state secrets" privileges by the government.
  • Gitmo Guilty Plea Is a Sad Day for U.S. Rule of Law by Daphne Eviatar reports that Omar Khadr, a 24-year-old Canadian who's spent a third of his life in U.S. custody without trial, pleaded guilty to a range of crimes after his defense was vitiated by statements made after he was threatened with gang-rape, coerced and possibly tortured.
  • Amnesty International Calls for Bush Criminal Investigation by The Walrus reports that Amnesty International today urged a criminal investigation into the role of former US President George W Bush and other officials for their role in torture.
  • Psychologist who developed CIA techniques might lose license by Christian Dem in NC notes that the New York Times reports that Dr. James E. Mitchell, reported to have helped the C.I.A. develop "enhanced interrogation techniques", is defending himself in front of the Texas State Board of Psychologists on charges that he violated the profession's code of ethics.
  • OK, Bud. You've Lost Me For GOOD. by Granny Doc quotes Keith Olbermann on MSNBC's Countdown as reporting that the Obama Administration intervened to prevent Spain from indicting 6 former Bush officials on charges of setting the legal framework for torture and intervened to Nigerian government to prevent the indictment of Dick Cheney on bribery charges (apparently subsequent to revelation by WikiLeaks).
  • Court Dismisses Targeted Killing Case On Procedural Grounds Without Addressing Merits by the ACLU reports that Judge John Bates of the U.S. District Court for the District of Columbia dismissed a lawsuit challenging the Obama administration's targeted killing policy for lack of standing, leaving open the question of how this apparent serious violation of the Constitution would be open to judicial review. (See also Targeted Killing: "A Unique and Extraordinary Case" by ACLU.)
  • White House Drafts Executive Order for Indefinite Detention by Dafna Linzer in Truthout reports that the White House is preparing an Executive Order establishing indefinite detention as a long-term Obama administration policy.
  • My Exclusive Interview with WikiLeaks Founder Julian Assange by Cenk Uygur provides video and transcript of the interview in which Assange talks about the treatment of Private Bradley Manning, who has not been convicted of any crimes, in which he is being held in solitary confinement and not allowed to even exercise in his cell.
  • White House prepares executive order for indefinite detention by Joan McCarter notes that in addition to preparing orders for indefinite detention, actions in the trial of Omar Khadr proved that "confessions made by Khadr which were clearly obtained through coercion, abuse and torture will be admitted as evidence against him."
  • UN to investigate treatment of incarcerated Bradley Manning by Joan McCarter cites reports in The Washington Post and Salon that the United Nations is planning to investigate the treatment of purported Wikileaker Private Bradley Manning for reported inhumane treatment.
  • Torture: Are We Going To Let Them Get Away With It? by Chacounne provides excerpts from Murat Kurnaz's memoire, Five Years of My Life, on his torture at the hands of the U.S. government.
  • Another Espionage Prosecution of a Whistleblower: Where's the Alarm? by Jesselyn Radack reports that former CIA officer Jeffrey Sterling has been charged with "leaking" classified information.
  • "Stealth transfers" of Gitmo Prisoners, Congress Informed by Valtin reports that the Obama Administration has transferred another prisoner, Farhi Saeed bin Mohammed, in violation of international laws from Guantanamo to Algeria, a country that has reportedly engaged in torture and other cruel and inhumane treatment of prisoners, where he fears he will be persecuted.
  • Security's laptop seizures: Interview with Rep. Sanchez by Glenn Greenwald reminds us that Americans are regularly searched without warrants or probable cause when they re-enter the U.S. and that their laptops and other electronic property are sometimes taken and withheld for indefinite periods. Rep. Loretta Sanchez has a bill that would require the Department of Homeland Security to write rules for when they may take this equipment and examine it.
  • More On Why Bush Canceled His Geneva Trip And The Case Against Him by Something the Dog Said evaluates an attempt by the Center for Constitutional Rights to have George Bush put on trial by the Swiss during a visit there (that he later cancelled).
  • I'm sorry my government tortured you, David by geomoo excerpts My Tortured Journey With Former Guantanamo Detainee David Hicks by Jason Leopold from Truthout on his interviews with Guantanamo detainee David Hicks, subsequent to his new book about his four years of torture and abuse at the Guantanamo detention camps.
  • Paranoia and racial profiling put Midwestern blogger in cuffs on 9/11 by Mark Sumner examines the ordeal of Shoshana Hebshi, detained and strip searched because someone on her plane thought their might be trouble.
  • Some real Shock and Awe: Racially profiled and cuffed in Detroit by Shoshana Hebshi details her account of being detained and strip-searched because someone on the plane she was on thought they saw suspicious behavior.
  • Ali Soufan, former FBI Special Agent, discusses the torture of detainees after 9/11 with Rachel Maddow on her NBC show, 12 September 2011.
  • Ali Soufan, former FBI Special Agent, discusses the torture of detainees after 9/11 with Keith Olbermann on Countdown, 15 September 2011.
  • White House threatens veto of defense authorization bill over military detention provision by Joan McCarter reviews reports that the White House has threatened to veto a defense reauthorization bill if it contains language that would allow the indefinite military detention of citizens and legal permanent residents.
  • Senate to vote on allowing indefinite military detention for Americans on the News Blog for Current TV reports that the Senate has voted to advance a bill that would allow for the indefinite military detention of Americans [in clear violation of the Constitution], while Sen. Mark Udall and Sen. Dianne Feinstein have offered amendments to strip the detention provisions from the bill.
  • Indefinite detention: Can we ask how the United States got here? by Scott WooledgeFollow notes that this legislation can be thought of as "just the latest in America's many efforts to relieve ourselves of our obligations to the 'quaint' Geneva Convention."
  • The NSA Is Building the Country’s Biggest Spy Center by James Bamford in Wired Magazine details how the National Security Agency spy center will intercept and store the phone calls, emails, Google Searches and other communications of American citizens in violation of the Constitution. (See Wired's Mind-Blowing Scoop On "Stellar Wind" And The "Enormity" of U.S. Domestic Spying by bobswern for discussion.)
  • NSA whistleblowers warn of secret spying program on Viewpoint with Eliot Spitzer on Current TV describes Trailblazer and Stellar Wind, NSA programs designed to intercept Americans’ phone calls, e-mails and other communications, without warrants or oversight (and includes interviews with William Binney, former technical director; Kirk Wiebe, former senior analyst; and Thomas Drake, former senior official).
  • Illegal phone tracking by police on Viewpoint on Current TV, Eliot Spitzer interviews Rep. Ed Markey (D-Mass.), who notes telephone companies are increasingly releasing information to police without a warrant, which is why he sent a letter to nine wireless companies demanding more information on their sharing policies with law enforcement.
  • Drones over America: Are they spying on you? by Brad Knickerbocker of The Christian Science Monitor reports that as many as 30,000 drones could be part of intelligence gathering and law enforcement in the US within 10 years, but legislation introduced by Sen. Rand Paul (the “Preserving Freedom from Unwarranted Surveillance Act of 2012”) would force police officials to obtain a warrant before using domestic drones.
  • Map reveals 66 military bases for unmanned aircraft on American soil from the Daily Mail (UK) reports the US military already operates 66 bases for unmanned drone aircraft on American soil and has 22 more planned across the country.
  • This White House has no authority to kill American citizens abroad without due process on The Young Turks on Current TV reports families of three U.S. citizens killed by American drone strikes are suing the Obama administration in protest of the lack of due process and shows video of Attorney General Eric Holder saying that due process is not judicial process.
  • American terrorists on Obama’s ‘kill list’: Congress wants answers on Viewpoint on Current TV shows Eliot Spitzer discussing Congress’s attempt to get information from President Obama regarding the legality of placing American terrorists on the president’s so-called kill list with Adam Serwer of Mother Jones magazine.
  • You’re innocent only until tracked by surveillance cameras linked to #TrapWire on The Young Turks on Current TV reports on Trapwire, a software system used to compare “suspicious” patterns of behavior captured by surveillance cameras and assess the potential threat for violence, as reported by David Seaman.
  • We Don’t Need No Stinking Warrant: The Disturbing, Unchecked Rise of the Administrative Subpoena by David Kravets explains how Congress illegally bypasses the Fourth Amendment to require companies to hand over private data.
  • CIA Whistleblower to Spend Years in Jail for Revealing Torture by Jesselyn Radack covers new reports that alleged whistleblower John Kiriakou may be put in jail for allegedly "outing" a torturer.
  • A Reformist Strategy to Downsize the Drone Strike Policy by Robert Naiman lays out five, concrete ways Congress should rein in the killer drone program now run by the CIA.
  • Report Explains How to Move Prisoners from Guantanamo on the Rachel Maddow show on MSNBC contrasts a new report by the government on how we should close the prison at Guantanamo and bring the prisoners there to the United States with consistent opposition in Congress, including an interview with Spencer Ackerman (Danger Room senior reporter).
  • Guantanamo Bay Detainees: Facilities and Factors for Consideration If Detainees Were Brought to the United States defines a report by the GAO that says the Department of Justice has "the correctional expertise to safely and securely house detainees with a nexus to terrorism."
  • Drone strikes are ‘turning a whole population against us,’ says filmmaker Robert Greenwald in an interview with Cenk Uygur on Current TV, and notes that "double tap" strikes would be an international war crime.
  • Interview with former CIA analyst Lindsay Moran on The Young Turks on Current TV calls the use of torture at the CIA a dark period and notes that its use of torture probably made it harder to develop human sources.
  • Torture and the Death of Bin Laden on Up w/ Chris Hayes on MSNBC details how Hayes "was horrified by the film [0 Dark 30]", which is "objectively pro-torture... and colludes with evil" and the reaction of his panel. Interviews and discussion continue here, here and here.
  • The Press Erupts When Facebook Changes a Privacy Setting When Congress Reauthorizes FISA, Crickets byThe Troubadour quotes reason.com that the Senate has reauthorized FISA without removing the warrantless wiretapping provisions while most of the media ignores the issue.
  • Controversial film sparks Senate investigation on Hardball (MSNBC) (with substitute host Michael Smerconish) quotes Jose Rodriguez, former Director of the National Clandestine Service, admitting that he was intimately involved in setting up and administering torture in the CIA. It also quotes Dianne Feinstein saying "the CIA did not first learn about the existence of the Usama bin Laden courier from CIA detainees subjected to coercive interrogation techniques" and notes the Senate Intelligence Committee has asked Acting CIA Director Mike Morell to send all information provided to film makers. David Corn also points out that [Ibn al-Shaykh] al-Liby was rendered by the CIA to Egypt, where he gave false information that Saddam Hussein was working with al Qaeda (information that George W. Bush used to lead the U.S. into the war in Iraq).
  • Torture and Accountability on Up w/ Chris Hayes on MSNBC explores the nomination of John Brennan to head CIA considering his tenure as deputy executive director of the CIA from 2001 to 2003 when the torture and rendition program was created and his current role as one of the architects of drone strikes by the CIA. [Additional segments apply.]
  • 'Kill Anything that Moves' — the real American war in Vietnam by Meteor Blades provides an excerpt from Jonathan Schell review of Nick Turse's new book in The Real American War in Vietnam, which details how a continuous stream of atrocities were the norm.
  • Legality of Executive Branch's "Lethal Operations" Claimed By Obama Administration Deeply Troubling by Steven D examines details of a 15-page "white paper" that discusses the Obama Administration's legal basis for these killings obtained by Michael Isikoff.
  • The slow death of the 4th Amendment by Gjohnsit discusses a report from DHS that says travelers may have their electronics seized and examined for any reason whatsoever, in violation of the Fourth Amendment.
  • DHS Can Seize and Search Electronics Along Border "Just Because"?? by The Baculum King notes that DHS policy claims the Fourth Amendment doesn't apply within 100 miles of the border.
  • Answer the question, Mr. President by joanneleon explores in detail the question of whether the President has the legal ability to kill Americans on American soil without a trial and conviction.
  • British Press: US Conspires with UK & Saudis to Hold Detainee w/Evidence on Iraq War Lies by Valtin details information coming to light about the torture and indefinite detention of Shaker Aamer.
  • U.S. Engaged in Torture After 9/11, Review Concludes by Scott Shane of the New York Times reports that the Constitution Project report concludes that the U.S. engaged in torture and that the nation's highest officials bore ultimate responsibility for it.
  • All in With Chris Hayes 22 April 2013 (video) shows Jeremy Scahill reporting that the CIA has a secret prison in Mogadishu, Somalia, where they interrogate suspected members of al-Shabaab or other "high value targets" and that under the Obama Administration renditions have continued.
  • FBI may be reading emails without a warrant by Suzanne Choney reports on NBC News the FBI and U.S. Attorneys' offices may be reading emails without a warrant, according to documents obtained by the ACLU.
  • U.S. Government Targets Journalists, Happened to Me in 2003, Risen in 2006, AP in 2013 by Jesselyn Radack recounts how surveillance of journalists like Bill Binney, James Risen, and others is endangering the First Amendment.
  • Government collecting Americans' phone records under secret court order by Laura Clawson covers reports by The Guardian (NSA collecting phone records) and others that the FISA court has ordered Verizon to provide call information on an "ongoing, daily basis", including the phone numbers and location information without any prior evidence of a crime.
  • Up w/ Steve Kornacki has segments here, here and here about spying on calls and e-mails where former Obama Press Secretary Robert Gibbs assures us that if we could know what's going on it would be okay and Sen Dianne Feinstein, Sen Lindsey Graham, and Rep Mike Rogers try to defend the program (guests include Ginger Gibson, Liza Goitein, and Josh Barro).
  • Not your granddaddy's metadata: don't believe the PRISM anti-hype by Steve Masover explains why mere data mining of "metadata" is not minor or unimportant or non-invasive.
  • Snowden's Own Words by catilinus excerpts quotes from Edward Snowden why he reveal the NSA's secret program to intercept communications.
  • IC On the Record contains information released directly by the DNI to the public and provides access to what the government considers public information about its foreign spying programs.
  • Secret court scolded NSA over surveillance in 2011, declassified documents reveal by Kimberly Dozier and Stephen Braun of The Associated Press details new information provided by the Obama Administration on data collected on multiple occasions by the NSA which the FISA court found was illegal and required the NSA to destroy.
  • Federal judge says NSA's phone surveillance program is likely unconstitutional on RT covers an opinion by Judge Richard Leon (US District Court for the District of Columbia), who called NSA technology “almost Orwellian” in nature. (Further notes in this diary by jamess.)
  • What the MSM Did Not Report About Edward Snowden's Testimony Before the Council of Europe by Bobswern links to videos from Edward Snowden testimony to the Parliamentary Assembly of the Council of Europe (PACE) and notes the NSA spied on Human Rights Watch and Amnesty International, among other revelations.
  • Meet the Muslim-American Leaders the FBI and NSA Have Been Spying On by Glenn Greenwald and Murtaza Hussain examines the cases where the National Security Agency and FBI have covertly monitored the emails of prominent Muslim-Americans under secretive procedures intended to target terrorists and foreign spies.

What Progressives Value and Want

Sustainability. Official criminal behavior is not sustainable in a democracy. It puts certain people or groups above the law, undermining the legitimacy of the government and invalidating democratic elections. Fairness. Western standards of due process were developed over centuries to ensure fairness. Would you want to be tortured to see if you have any information that might be useful to the government? Is it okay for the government to spy on you without any independent review (by the judiciary) of whether you may have committed a crime? The kind of illegal behavior exemplified by the Bush Administration creates an inherently unfair society that abuses the official power of the government for private ends. Consistency. It is inconsistent to allow government officials to break the law while requiring citizens to follow it. It is inconsistent to allow members of the executive branch to decide what behavior is criminal while requiring the other two branches to follow the law.

Notes

Remember: What’s at stake is our democracy. The common theme of lawlessness in the Bush Administration was to act without the consent of Congress or the people. Their policy was to operate in secret because they knew that in the open the American people would not approve their behavior. Spying without warrants opens up the possibility of spying on opposition politicians and private citizens funding opposition ends. Reserving the right to keep people in prison indefinitely without trial is a proven method of instituting dictatorship. Torturing captives is intended to create fear in those who might oppose government action, and is a proven method of terror. This is a critical moment in our history, one in which we have the option to decide whether to return to traditional democratic values or allow our government to be swept away into a form that facilitates dictatorship.

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