Thai Thi Nga, 16, 2nd-generation viction of US Agent Orange use in the Vietnam War

On Oct. 13, the New York Times ran a news story headlined, “Door Opens to Health Claims Tied to Agent Orange,” which was sure to be good news to many American veterans of the Indochina War. It reported that 38 years after the Pentagon ceased spreading the deadly dioxin-laced herbicide/defoliant over much of South Vietnam, it was acknowledging what veterans have long claimed: in addition to 13 ailments already traced to exposure to the chemical, it was also responsible for three more dread diseases—Parkinson’s, ischemic hedart disease and hairy-cell leukemia.

Under a new policy adopted by the Department of Veterans Affairs, the VA will now start providing free care to any of the 2.1 million Vietnam-era veterans who can show that they might have been hurt by exposure to Agent Orange.

This is another belated step forward in the decades-long struggle by Vietnam War veterans to get the Defense Department and the VA to acknowledge the American government’s responsibility for poisoning them and causing permanent damage to them and often to their children and grandchildren. Dioxin, one of the most poisonous substances known to man, is known to cause many serious systemic diseases, autoimmune illnesses, cancers and birth defects. (It is also a warning about the general Pentagon and government approach to other hazards caused by its battlefield use of toxins—most significantly the increasingly common use of depleted uranium projectiles in bombs, shells and bullets—an approach which features lack of concern about health effects on troops and civilians, denial of information to troops, and denial of care to eventual victims.)

Missing from the Times article, written by military affairs reporter James Dao, which did include mention of the obstructionist role the government has played through this whole sorry saga, was a single mention of the far larger number of victims of Agent Orange in Vietnam—the people on whose heads and lands the toxic chemical was actually dropped, or of the adamant refusal by the US government to accept any responsibility for what it did to them.

According to the article, the VA estimates that there may be as many as 200,000 US veterans who are suffering from Agent Orange-related illnesses. But according to a court case brought on behalf of Vietnamese victims, which was dismissed by a US Federal District Judge who ruled that there was “no basis for the claims,” there are at least three million Vietnamese, and possibly as many as 4.8 million, who are suffering the same Agent Orange-related illnesses as American veterans and their children.

It is estimated that as many as 800,000 Vietnamese in the country’s south currently suffer from chronic health problems due to Agent Orange exposure, either to themselves, or to a parent or grandparent. Most of these victims, some of whom are retarded, and others of whom cannot walk or have no use of their arms, need constant care.

Veterans for Peace, an organization whose membership includes a large number of Vietnam War veterans, has issued a call for the US to provide funds for health care, education, vocational education, chronic care, home care and equipment to clean up hotspots of dioxin in Vietnam—a call which Congress and the White House have consistently ignored. Tests have found dioxin levels around the sites of the three main former US bases in what was South Vietnam to be 300-400 times recognized safe levels. The US dumped huge amounts of Agent Orange for miles around those bases to kill off jungle cover that Vietnamese fighters could use to approach the bases, but it was never cleaned up when the US pulled out.

One organization that includes a number of American veterans of the way, including former military doctors or soldiers who later became physicians, is the Vietnam Friendship Village Project USA Inc., which raises funds to help establish communities in Vietnam to care for the victims of Agent Orange.

It may seem a pathetic stab at principle given America’s use of two nuclear weapons against civilian targets in Japan a few years later, but back in World War II, in the midst of the most brutal island-to-island fighting during the Pacific War, a US Judge Advocate General in the Pentagon ruled that a military request for permission to use herbicides against the Japanese on Pacific islands would be illegal under the Hague Convention (forerunner of what are now called the Geneva Conventions).

He ruled that trying to destroy the crops of civilians on those islands to deny food to the Japanese troops would be a war crime. The US went ahead and used the herbicides anyway, arguing that even though it was illegal, the US was free to go ahead, since the Japanese had already broken the laws of war by using strychnine to kill military guard dogs in Siberia. Under the rules of war, if one side breaks a rule, the other side is no longer bound by it.

But the Viet Cong and North Vietnamese never used toxic materials against US forces or against South Vietnamese forces. And the Pentagon in the Vietnam War never even considered whether spraying a highly toxic herbicide over 1.4 million acres—12 percent of the total land area of Vietnam and almost 25 percent of the southern half of the country—might be a war crime.

Moreover, the Pentagon knew, before it began its massive defoliation campaign, about studies showing that Agent Orange was heavily laced with deadly dioxin, but covered up those studies, some by the chemical’s makers, Dow Chemical and Monsanto, and never even warned the troops who handled the material daily, or who were sent out to fight in areas that had been heavily sprayed.

The ongoing medical disaster in Vietnam caused by America’s criminal use of Agent Orange to defoliate a nation would be a good place for President Obama to start earning his just-awarded Nobel Peace Prize. He could kick off his peace campaign by finally honoring President Richard Nixon’s immediately broken promise to provide several billion dollars in reconstruction aid to Vietnam at the conclusion of peace talks at the end of the war. Not a dollar of such aid was ever given.

Dao says he didn’t mention significance for Vietnamese dioxin victims of the VA’s decision to recognize three new diseases as being Agent Orange-linked, because “my beat is veterans,” and because he only had 800 words in which to cover his story. That may be true (though surely the Vietnamese at least deserved a one-sentence mention). But back on July 25, when the Times ran a story (by Janie Lorber, not by Dao) about the finding by an expert panel of the National Institute of Medicine linking Parkinsons, ischemic heart disease and leukemia to Agent Orange, upon which the latest VA decision was based, it also failed to mention the Vietnamese victims. In that case, the lapse was simply journalistically inexcuseable, since it was about a new medical finding, not a policy decision regarding the treatment of veterans.

At this point, the only way the New York Times can salvage a bit of its journalistic reputation on this topic would be by having Dao, Lorber or some other reporter write a piece about the impact of America’s Agent Orange use on the people of Vietnam. They could start by calling a veteran at Veterans for Peace or the Vietnam Friendship Village Project USA.

Dave Lindorff is a Philadelphia-based journalist. He is author of Killing Time: An Investigation into the Death Penalty Case of Mumia Abu-Jamal (Common Courage Press, 2003) and The Case for Impeachment (St. Martin’s Press, 2006). His work is available at thiscantbehappening.net

The new ruling brushes off the charges by 212 Iraqis who said they or their late husbands were abused by U.S. personnel at Abu Ghraib. The suit charged private security firm CACI International Inc., of Arlington, Va., of crimes inside the Baghdad hellhole.

But in a 2-1 ruling, the D.C. Court of Appeals said CACI “is protected by laws barring suits filed as the result of military activities during a time of war,” the Associated Press reported. This opinion was written by Judge Laurence Silberman, a Reagan appointee, and supported by Judge Brett Kavanaugh, a Bush appointee.

“During wartime, where a private service contractor is integrated into combatant activities over which the military retains command authority, a tort claim arising out of the contractor’s engagement in such activities shall be pre-empted,” Silberman wrote.

If so, with about as many U.S.-led contract mercenaries as regular army involved in the Iraq conflict, this decision preposterously exempts some 150,000 fighters from legal action for any crimes they commit. It gives a shoot-to-kill pass to privateers such as Blackwater, whose operatives on one occasion are said to have gunned down 17 unarmed Iraqi civilians.

“This abuse and torture of these prisoners detained during war time constituted war crimes and torture in violation of the Geneva Conventions of 1949, the U.S. War Crimes Act, the Convention against Torture, and the U.S. Federal Anti-torture Statute—felonies, punishable by death if death results as a violation thereof,” said Francis Boyle, an international law authority at the University of Illinois, Champaign-Urbana.

“Judges Silberman and Kavanaugh have now become Accessories After the Fact to torture, war crimes and felonies in violation of United States federal law and international criminal law,” Boyle asserted. (See if they are ever prosecuted!)

Dissenter Judge Merrick Garland, appointed by President Bill Clinton, argued the law does not protect independent contractors, particularly when they are accused of acting outside the rules or instructions of their military overseers. But where Silberman said most of the claims were limited to “abuse” or “harm,” not war crimes or torture, according to Courthouse News Service, Garland “found the claims much more alarming.”

“The plaintiffs in these cases allege they were beaten, electrocuted, raped, subjected to attacks by dogs, and otherwise abused by private contractors working as interpreters and interrogators at Abu Ghraib prison,” Garland said.

“No act of Congress and no judicial precedent bars the plaintiffs from suing the private contractors—who were neither soldiers nor civilian government employees,” he wrote.

“Neither President Obama nor President Bush nor any other Executive Branch official has suggested that subjecting the contractors to tort liability for the conduct at issue here would interfere with the nation’s foreign policy or the Executive’s ability to wage war,” Garland pointed out.

“To the contrary, the Department of Defense has repeatedly stated that employees of private contractors accompanying the Armed Forces in the field are not within the military’s chain of command, and that such contractors are subject to civil liability,” he wrote.

Judge Silberman was named to the Federal bench in 1985 by President Ronald Reagan and in 2008 received the Presidential Medal of Freedom, the nation’s highest civilian award, from (surprise!) President George W. Bush, the man who launched the Afghan and Iraq aggressions.

Silverman was supported in his opinion by Kavanaugh, a former legal aide to President Bush who was later appointed by Bush to the Federal bench. In July, 2007, Senators Patrick Leahy, D-Vt., and Dick Durbin (D-Ill.) accused Kavanaugh of “misleading” the Senate during his nomination.

In a statement issued at the time opposing the appointment, Sen. Durbin prophesied, “By every indication, Brett Kavanaugh will make this judgeship a gift that keeps on giving to his political patrons who have rewarded him richly with a nomination coveted by lawyers all over America.” And that, of course, is exactly what happened. Here’s what aroused Durbin’s concern:

“For example, he (Kavanaugh) would not tell us his views on some of the most controversial policy decisions of the Bush administration–like the issues of torture and warrantless wiretapping. He would not comment. He would not tell us whether he regretted the role he played in supporting the nomination of some judicial nominees who wanted to permit torture as part of American foreign policy… It would have been so refreshing and reassuring if Brett Kavanaugh could have distanced himself from their extreme views. But a loyal White House counsel is not going to do that. And that is how he came to this nomination.” And that is how he came to dismiss the torture charges against contractor CACI. Surely, Kavanaugh’s decision in the CACI case is proof he misled the Senate and merits impeachment.

In Jan., 2005, The New York Times reported testimony suggesting that guards and/or interrogators at Abu Ghraib were urinating on detainees, pouring phosphoric acid on them, sodomizing them with a baton, tying ropes to their penises and dragging them across the floor, and jumping on their wounds. Some prisoners were hung with their hands tied behind their back until they died. It should be remembered that the Abu Ghraib inmates were suspects, imprisoned without due process or trials. Abu Ghraib’s commanding officer Brig. General Janis Karpinski estimated that 90 percent of them were innocent.

According to an article by Jeffrey Toobin in the September 21 issue of The New Yorker, President Obama already has the chance to nominate judges for 21 seats on the federal appellate bench—more than 10 percent of the 179 judges on those courts, and at least half a dozen more seats should open in the next few months.

In an interview with the editorial board of the Detroit Free Press last year, Obama said the role of our courts “is to protect people who don’t have a voice…the vulnerable, the minority, the outcast, the person with the unpopular idea, the journalist who is shaking things up…And if somebody doesn’t appreciate that role, then I don’t think they are going to make a very good justice.”

Surely, hundreds of foreign prisoners tortured in an illegal war made by the U.S., or their survivors, are supplicants entitled to a fair hearing, not non-persons to be brushed aside as judges Silberman and Kavanaugh have done this past week. Their ruling that, essentially, injured parties cannot sue the Warfare State and its contractors, drives a tank through the Constitution. Americans had better pray Obama’s judicial choices will aspire to a higher standard.

Sherwood Ross formerly worked for The Chicago Daily News and other major dailies and as a columnist for wire services. He currently runs a public relations firm for “worthy causes”. Reach him at sherwoodr1@yahoo.com

The Washington Post's David Broder.

David Broder, the senior op-ed writer at the Washington Post, has joined his colleagues (Fred Hiatt, David Ignatius, and Richard Cohen) in condemning Attorney General Eric Holder’s decision to name a special counsel to examine possible law-breaking by CIA interrogators. And like his colleagues, Broder has put forth a list of irrelevant reasons for turning away from the abuses and violations of law during the eight years of the Bush administration.

Although Holder’s inquiry will only target those who acted beyond so-called legal guidelines, Broder is concerned that we will ultimately see Vice President Dick Cheney “standing in the dock.” Broder should be concerned with the need to explicitly repudiate the policies and actions of President George Bush and Cheney that violated domestic and international law. These actions require a public hearing and an open record of some kind.  Holder’s inquiry is the first step in what Mark Danner of the New York Review of Books called a “complicated political process.”

Broder’s lamest and most disingenuous reasons deal with CIA director Leon Panetta and the methodology of the Post’s news staff.  Broder calls Panetta a “conscientious director” of the CIA, but Panetta has surrounded himself with the ideological drivers of the policies of detention and interrogation, Steve Kappes and Michael Sulick, and has fought every effort of the Obama administration to bring transparency and accountability to the Bush-Cheney policies.

Broder adds that Panetta’s “judgment” is supported by the reporting of Ignatius and others with “excellent sources inside the CIA.” Their sources, of course, are Kappes and Sulick, the very officers who seek to cover-up their own activities and have the freedom to talk to reporters. Good reporting and journalism require an honest effort to seek all sources and not merely those who reify one’s own positions.

Broder echoes Panetta when he argues that any investigation will have a “harmful effect on the morale and operations of his agency.” No, morale was compromised by high-level CIA officials such as George (“slam dunk”) Tenet, who tailored intelligence to go to war against Iraq, and Porter Goss and Michael Hayden, who used outside contractors to build secret prisons, conduct extraordinary renditions, and engage in torture and abuse.

The CIA Inspector General (IG) responsible for the 2004 report on interrogations and torture told Der Spiegel this week that he decided on preparing a report because “some agency employees involved with the program…were uneasy about it; he told the Washington Post last week that he “could not walk through the cafeteria without people walking up to me, not to complain but to say ‘More power to you.’”

CIA torture and abuse as well as extraordinary renditions also compromised valuable liaison relations with European intelligence services that are needed to combat international terrorism and the proliferation of weapons of mass destruction. As a result of CIA’s illegal activities, intelligence services in Germany, Italy, and Spain were refusing to cooperate with their CIA counterparts.  Nevertheless, the CIA is still resisting the release of hundreds of pages of internal documents on detentions and interrogations, arguing that national security is at stake. No, national embarrassment is involved and not national security.

At some point, Broder and his colleagues should be forced to read the 2004 IG Report on detentions and interrogations; the 2004 CIA report on interrogation techniques; the 2004 Taguba report on military abuse of detainees; the 2005 collection of “secret” documents by Karen Greenberg and Joshua Dratel in their The Torture Papers: The Road to Abu Ghraib; the 2007 International Committee of the Red Cross Report on CIA’s treatment of detainees; the 2008 Senate Armed Services report on U.S. treatment of detainees; and Jane Mayer’s book The Dark Side.

Then, they need to compare the treatment of the detainees, some of whom were totally innocent or erroneously detained, with what the Justice Department memoranda on interrogations permitted.  Of course, Broder believes that the Justice Department torture memoranda demonstrate that the Bush administration engaged in a “deliberate, and internally well-debated policy decision, made in the proper places…by the proper officials.” Meanwhile, the Post has presented no evidence of policy debates on torture and abuse, extraordinary renditions, and secret prisons.

Broder and his colleagues could also try to interview those individuals who watched some or all of the 92 torture tapes before they were destroyed by high-ranking officials from the CIA’s National Clandestine Service. This destruction of evidence has been investigated for the past two years by John Durham, who will conduct the current inquiry for Attorney General Holder.

Broder, Ignatius, Hiatt, and Cohen have relied entirely on those CIA operatives who are trying to put the best possible face on CIA transgressions; the ethics of good journalism requires that they seek sources to learn about the details of the sordid and sadistic activities that put the nation at risk. President Barack Obama should be credited with closing the secret prisons and ending the practice of torture and abuse, but the nation still needs to confront and understand the evidence and the events of the past six years.

Finally, the news and editorial reporters of the Washington Post need to compare their findings of the evidence with the laws that govern the illegalities that have taken place. They could start with the 8^th amendment of the Constitution against “cruel and unusual punishments” (it has the virtue of being short); the War Crimes Act of 1996; the Convention against Torture of 1984 (yes, the United States is a signatory); and of course Common Article Three of the Geneva Conventions.

Broder and his colleagues do not understand that the stature of international and domestic law is diminished when a nation violates it with impunity. The stature of a nation is diminished when it commits crimes against humanity.  And the national leadership and the nation itself are diminished when it ignores the need for accountability and explicit repudiation. Sen. Patrick Leahy, D-Vt., had it right when he called for a “truth commission” to gather information on the CIA programs that the Bush administration endorsed and protected.

This would represent a good start in restoring our moral compass on the crimes of the post-9/11 era. The judgment of history will be harsh if we choose not to do so.

Melvin A. Goodman, a senior fellow at the Center for International Policy and adjunct professor of government at Johns Hopkins University, is The Public Record’s National Security and Intelligence columnist. He spent 42 years with the CIA, the National War College, and the U.S. Army. His latest book is Failure of Intelligence: The Decline and Fall of the CIA.

According to even the Pentagon’s own reckoning, for example, probably 85% of the captives being held at Guantanamo over the past eight years were not terrorists at all, and a fair number–probably the majority–weren’t even fighting anyone when they were captured. I’m sure that the averages at Bagram Air Base in Afghanistan, or at the secret prison in Iraq are no better. The military was offering bounties in Iraq and Afghanistan for alleged terrorists, you see, and probably still is, but in both of those lawless, tribal countries, many people have used the offer to settle old feuds, turning in people they wanted to punish or dispose of, and many others just turned in random people to get the reward money.

Remember this when you hear about torture tactics that we are learning were used by our side–things that make waterboarding sound like a walk in the park. We’re now getting confirmation of things that we journalists were hearing rumors of earlier: faked executions using blanks, faked executions in neighboring rooms, followed by threats of the same to a person who had just heard the screams and a shot in the cell next to him, threats with an electric drill, and now perhaps the worst yet–the threat to kill a captive’s children. And of course there is the already disclosed case of a captive who had his genitals cut with a razor, and generous use of tasers in places on the body designed to cause maximum pain. That, and of course there are a lot raped captives (including young boys), and a lot of bodies yet to be dug up of captives who were simply killed during torture.

We’ve got a litany of horror and abuse here that sounds like the worst kind of stories that used to come out of Saddam Hussein’s Iraq, or the Argentine Junta or Idi Amin’s Uganda. About the only thing missing is word that the military and CIA torturers were eating their victims, or feeding them their own genitals, but who knows? Maybe we’ll get there yet. It’s hard at this point to rule anything out.

What has become of the U.S.? We started out the victims of an attack in 2001, with the whole world rallying to our side, and within a matter of weeks, our government, acting in our name, had secretly embarked on a wholly unnecessary and totally criminal descent into the barbarity of Middle Ages.

And now? The new administration has claimed to have put a stop to the atrocities, but it remains adamant that it is not going to root out the evil that was already done to hundreds, perhaps thousands of people.

President Barack Obama says he does not want to look back at any crimes that were committed. He wants to go “forward.” This is not the voice of justice, though. This is the voice of political gutlessness and of big power exceptionalism. The same America that demands the prosecution of war criminals in little countries like Cambodia or Serbia or Sudan, considers itself exempt from criminal liability for its own crimes.

Attorney General Eric Holder says he may be ready to appoint a prosecutor to investigate cases where CIA or private contract torturers “overstepped” the rules set by the White House and Justice Department, but he has said he will not allow the investigation to go beyond that to pursue the people who enabled those acts of torture–people like Secretary of Defense Donald Rumsfeld who personally instructed torturers in Afghanistan to “take the gloves off” in one case, or Assistant Attorney Generals John Yoo and Jay Baybee (now a federal judge), who ruled that anything short of the destruction of bodily organs or of a pain level equivalent to death was okay. Nor will he allow any investigation to look at acts of torture that were authorized, like waterboarding, if they had the sanction of the Bush/Cheney White House.

This position taken by the new administration should sicken us all. Worse, it should be broadly condemned, because if the descent into barbarity which occurred with the highest White House sanction is not investigated thoroughly, and punished fully, there is no way we can say it will not happen again. In fact, it’s safe to say that it will happen again, the next time another charlatan gets into office and uses fear to blind the American people to all that is right and decent, and to the importance of maintaining the rule of law.

I know there are terrible things happening right now which demand our attention and action–an escalating, endless war in Afghanistan that increasingly resembles Vietnam in 1966 or 1967, a presidential cave-on on health care reform, a sell-out on real action against climate change, and on and on–but this particular crime–the crime of failing to act to punish violations of the Geneva Conventions on treatment of prisoners of war, which is being committed today by the Obama administration–is so obscene, so directly in our faces, and is such a stain on the whole nation, that it demands action.

We will probably never know how many innocent lives have been destroyed by America’s eight years of officially sanctioned torture, but we can at least see to it that the people who sanctioned it, and not just those who engaged in it (and that goes right up through the chain of command to the Commander in Chief and to the real power behind the throne, Dick Cheney), are put in the dock like the criminals at Nuremberg, to face the charge of war crimes. and crimes against humanity.

As the citizens of what we call a democracy, we can demand nothing less.

Dave Lindorff is a Philadelphia-based journalist. He is author of Killing Time: An Investigation into the Death Penalty Case of Mumia Abu-Jamal (Common Courage Press, 2003) and more recently of The Case for Impeachment (St. Martin’s Press, 2006). His work is available at www.thiscantbehappening.net

His announcement was made shortly before the CIA released a declassified version of a 2004 inspector general’s report that was sharply critical of the agency’s detention and torture program. The long-awaited report contains shocking details about the treatment of detainees and says in no uncertain terms that high-level CIA officials in Langley micromanaged the torture of detainees.

The report said CIA interrogators and contractors used “unauthorized, improvised, inhumane and undocumented detention and interrogation techniques” that exceeded the legal guidelines for interrogation cited in Justice Department memoranda.

But the investigation Holder authorized will be limited in scope and will focus on whether CIA contractors and agency interrogators violated anti-torture laws and not on the Bush administration officials who created and implemented the policies.

Holder named John Durham, a federal prosecutor from Connecticut who was appointed in early 2008 to investigate whether crimes were committed related to the destruction of more than 90 interrogation tapes, to lead the inquiry.

“Mr. Durham has gained great familiarity with much of the information that is relevant to the matter at hand,” Holder said. “Accordingly, I have decided to expand his mandate to encompass this related review. Mr. Durham, who is a career prosecutor with the Department of Justice and who has assembled a strong investigative team of experienced professionals, will recommend to me whether there is sufficient predication for a full investigation into whether the law was violated in connection with the interrogation of certain detainees.”

In a statement, Holder said he “closely” reviewed a report prepared by the Justice Department’s Office of Professional Responsibility related to legal memoranda prepared by agency attorneys John Yoo, Jay Bybee and Steven Bradbury that authorized the torture of high-level detainees before deciding to move forward in naming a special counsel.

He said the report recommended that the Justice Department “reexamine previous decisions to decline prosecution in several cases related to the interrogation of certain detainees.”

“I have reviewed the OPR report in depth,” Holder said. “Moreover, I have closely examined the full, still-classified version of the 2004 CIA Inspector General’s report, as well as other relevant information available to the Department. As a result of my analysis of all of this material, I have concluded that the information known to me warrants opening a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.

“The Department regularly uses preliminary reviews to gather information to determine whether there is sufficient predication to warrant a full investigation of a matter. I want to emphasize that neither the opening of a preliminary review nor, if evidence warrants it, the commencement of a full investigation, means that charges will necessarily follow.”

Holder said he is well aware that his decision will likely be seen as “criticizing the work of our nation’s intelligence community.”

“I could not disagree more with that view,” Holder said. “The men and women in our intelligence community perform an incredibly important service to our nation, and they often do so under difficult and dangerous circumstances. They deserve our respect and gratitude for the work they do. Further, they need to be protected from legal jeopardy when they act in good faith and within the scope of legal guidance.

“That is why I have made it clear in the past that the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. I want to reiterate that point today, and to underscore the fact that this preliminary review will not focus on those individuals.”

Earlier Monday, CIA Director Leon Panetta issued a statement saying the contents of a CIA inspector general’s report on the systematic torture of “war on terror” detainees is an “old story.”

“The outlines of prior interrogation practices, and many of the details, are public already,” Panetta said. “The use of enhanced interrogation techniques, begun when our country was responding to the horrors of September 11th, ended in January.”

Panetta’s statement was disseminated to reporters hours after ABCNews.com reported that he got into a “profanity-laced screaming match” with a senior White House staff member over reports that  Holder was considering the appointment of a special counsel to probe the CIA’s use of torture against “war on terror detainees.”

According to intelligence officials, Panetta erupted in a tirade last month during a meeting with a senior White House staff member. Panetta was reportedly upset over plans by Attorney General Eric Holder to open a criminal investigation of allegations that CIA officers broke the law in carrying out certain interrogation techniques that President Obama has termed “torture.”

Holder added that he also realizes that his decision to authorize an inquiry “will be controversial.” But he said his “duty” as the nation’s chief law enforcement officials “is to examine the facts and to follow the law.”

“In this case, given all of the information currently available, it is clear to me that this review is the only responsible course of action for me to take,” he said.

The White House said in a statement Monday that President Obama “has said repeatedly that he wants to look forward, not back, and the President agrees with the Attorney General that those who acted in good faith and within the scope of legal guidance should not be prosecuted. Ultimately, determinations about whether someone broke the law are made independently by the Attorney General.”

The Center for Constitutional Rights said in a statement that an investigation sharply limited in scope is unacceptable

“Responsibility for the torture program cannot be laid at the feet of a few low-level operatives. Some agents in the field  may have gone further than the limits so ghoulishly laid out by the lawyers who twisted the law to create legal cover for the program, but it is the lawyers and the officials who oversaw and approved the program who must be investigated.

“The Attorney General must appoint an independent special prosecutor with a full mandate to investigate those responsible for torture and war crimes, especially the high ranking officials who designed, justified and orchestrated the torture program. We call on the Obama administration not to tie a prosecutor’s hands but to let the investigation go as far up the chain of command as the facts lead. We must send a clear message to the rest of the world, to future officials, and to the victims of torture that justice will be served and that the rule of law has been restored.”

House Judiciary Committee Chairman John Conyers and Rep. Jerrold Nadler, chair of the panel’s Constitution and Civil Rights subcommittee, applauded Holder’s decision. Both Democratic lawmakers have lobbied the Justice Department for more than a year to appoint a special counsel to probe the CIA’s use of torture. They also renewed their calls for a truth commission to probe the Bush administration policies that lead to the abuses.

They said the details of the CIA inspector general’s report were “truly disturbing.” The report concluded that the interrogation program used “‘unauthorized, improvised, inhumane, and undocumented detention and interrogation techniques” against detainees and that interrogators staged mock executions and threatened to kill the children of self-professed 9/11 mastermind Khalid Sheikh Mohammed’s children if further attacks were carried out against the United States.

Conyers and Nadler said with that in mind it would be unfair if an investigation focused on rogue interrogators as opposed to the high-level Bush administration officials who implemented the policies and micromanaged the torture of detainees.

“The gruesome acts described in today’s report did not happen in a vacuum,” Conyers and Nadler said in a statement. “It would not be fair or just for frontline personnel to be held accountable while the policymakers and lawyers escape scrutiny after creating and approving conditions where such abuses were all but inevitable to occur…an independent and bipartisan commission should also be convened to evaluate the broader issues raised by the Bush Administration’s brutal torture program.”

They also called for Durham to be given a broad mandate to probe Bush administration officials and to prosecute those individuals who broke the law.

“This must be a robust mission to gather any and all evidence without predetermination of where it may lead. Seeking out only the low-level actors in a conspiracy to torture detainees will bring neither justice nor restored standing to our nation.”

Panetta issued a statement in advance of the release later Monday of a critical 2004 inspector general’s report on the agency’s torture program. Panetta says the horrific details of torture and abuse contained in the report “is in many ways an old story” and that the interrogation methods used against detainees were approved in Justice Department legal memoranda.

The outlines of prior interrogation practices, and many of the details, are public already,” Panetta said. “The use of enhanced interrogation techniques, begun when our country was responding to the horrors of September 11th, ended in January. For the CIA now, the challenge is not the battles of yesterday, but those of today and tomorrow. It is there that we must work to enhance the safety of our country. That is the job the American people want us to do, and that is my responsibility as the current Director of the CIA.

I make no judgments on the accuracy of the 2004 IG report or the various views expressed about it. Nor am I eager to enter the debate, already politicized, over the ultimate utility of the Agency’s past detention and interrogation effort. But this much is clear: The CIA obtained intelligence from high-value detainees when inside information on al-Qa’ida was in short supply. Whether this was the only way to obtain that information will remain a legitimate area of dispute, with Americans holding a range of views on the methods used. The CIA requested and received legal guidance and referred allegations of abuse to the Department of Justice. President Obama has established new policies for interrogation.

His statement was disseminated to reporters hours after ABCNews.com reported that Panetta got into a “profanity-laced screaming match” with a senior White House staff member over reports that Attorney General Eric Holder was considering the appointment of a special counsel to probe the CIA’s use of torture against “war on terror detainees.”

According to intelligence officials, Panetta erupted in a tirade last month during a meeting with a senior White House staff member. Panetta was reportedly upset over plans by Attorney General Eric Holder to open a criminal investigation of allegations that CIA officers broke the law in carrying out certain interrogation techniques that President Obama has termed “torture.”

ABCNews.com added that Panetta had threatened to resign over the possibility of a criminal investigation involving agency interrogators.

Panetta’s about-face stands in stark contrast to statements he made in a series of op-eds in the Monterey County Herald and other publications last year. In a March 8, 2008, column titled, “Americans Reject Fear Tactics,” Panetta wrote that “all forms of torture have long been prohibited by American law and international treaties respected by Republican and Democratic presidents alike.”

“Our forefathers prohibited ‘cruel and unusual punishment’ because that was how tyrants and despots ruled in the 1700’s. They wanted an America that was better than that. Torture is illegal, immoral, dangerous and counterproductive. And yet, the president is using fear to trump the law.”

Here is Panetta’s statment in full hours before the Justice Department released the CIA IG torture report and other documents.

Message from the Director: Release of Material on Past Detention Practices

Today, as part of a number of Freedom of Information Act cases, the government is responding to court orders to release more documents related to the Agency’s past detention and interrogation of foreign terrorists. The CIA materials include the 2004 report from our Office of Inspector General and two papers-one from 2004 and the other from 2005-that discuss the value of intelligence acquired from high-level detainees. The complete package is hundreds of pages long. The declassification process, a mandatory part of the proceedings, was conducted in accord with established FOIA guidelines.

This is in many ways an old story. The outlines of prior interrogation practices, and many of the details, are public already. The use of enhanced interrogation techniques, begun when our country was responding to the horrors of September 11th, ended in January. For the CIA now, the challenge is not the battles of yesterday, but those of today and tomorrow. It is there that we must work to enhance the safety of our country. That is the job the American people want us to do, and that is my responsibility as the current Director of the CIA.

My emphasis on the future comes with a clear recognition that our Agency takes seriously proper accountability for the past. As the intelligence service of a democracy, that’s an important part of who we are. When it comes to past detention and interrogation practices, here are some facts to bear in mind on that point:

· The CIA itself commissioned the Inspector General’s review. The report, prepared five years ago, noted both the effectiveness of the interrogation program and concerns about how it had been run early on. Several Agency components, including the Office of General Counsel and the Directorate of Operations, disagreed with some of the findings and conclusions.

· The CIA referred allegations of abuse to the Department of Justice for potential prosecution. This Agency made no excuses for behavior, however rare, that went beyond the formal guidelines on counterterrorism. The Department of Justice has had the complete IG report since 2004. Its career prosecutors have examined that document-and other incidents from Iraq and Afghanistan-for legal accountability. They worked carefully and thoroughly, sometimes taking years to decide if prosecution was warranted or not. In one case, the Department obtained a criminal conviction of a CIA contractor. In other instances, after Justice chose not to pursue action in court, the Agency took disciplinary steps of its own.

· The CIA provided the complete, unredacted IG report to the Congress. It was made available to the leadership of the Congressional intelligence committees in 2004 and to the full committees in 2006. All of the material in the document has been subject to Congressional oversight and reviewed for legal accountability.

As Director in 2009, my primary interest-when it comes to a program that no longer exists-is to stand up for those officers who did what their country asked and who followed the legal guidance they were given. That is the President’s position, too. The CIA was aggressive over the years in seeking new opinions from the Department of Justice as the legal landscape changed. The Agency sought and received multiple written assurances that its methods were lawful. The CIA has a strong record in terms of following legal guidance and informing the Department of Justice of potentially illegal conduct.

I make no judgments on the accuracy of the 2004 IG report or the various views expressed about it. Nor am I eager to enter the debate, already politicized, over the ultimate utility of the Agency’s past detention and interrogation effort. But this much is clear: The CIA obtained intelligence from high-value detainees when inside information on al-Qa’ida was in short supply. Whether this was the only way to obtain that information will remain a legitimate area of dispute, with Americans holding a range of views on the methods used. The CIA requested and received legal guidance and referred allegations of abuse to the Department of Justice. President Obama has established new policies for interrogation.

The CIA must also keep its focus on the primary responsibility of protecting the country. America is a nation at war. This Agency plays a decisive role in helping the United States meet the full range of security threats and opportunities overseas. That starts with the continuing fight against al-Qa’ida and its sympathizers. There, alongside all its other contributions, the CIA is helping our government chart a new way forward on interrogation, one in keeping with the President’s Executive Order of January 22nd. You, the men and women of this great institution, do the hard work and take the tough risks that intelligence and espionage demand.

I am very proud of what you do, here and abroad, to protect the United States. Your skill, courage, commitment, and focus on mission make the CIA indispensable to the nation. It is a privilege to serve with you.

Leon E. Panetta

“There simply is no legal, moral or principled reason to insulate those who authorized the torture of detainees, either through legal reasoning or other policy directive, from investigation,” Rep. Jerrold Nadler, a New York Democrat and chairman of the House Judiciary subcommittee on the Constitution, Civil Rights and Civil Liberties, said in a letter to Holder.

Nadler’s letter of Aug. 4 was followed on Sunday by a report in the Los Angeles Times that Holder was likely to sign off on a criminal probe, but would limit its scope to CIA interrogators who exceeded interrogation limits set in 2002 by Justice Department attorneys John Yoo and Jay Bybee in memos that authorized waterboarding and other brutal acts against suspected terrorists.

“A senior Justice Department official said that Holder envisioned an inquiry that would be narrow in scope, focusing on ‘whether people went beyond the techniques that were authorized’ in Bush administration memos that liberally interpreted anti-torture laws,” the Los Angeles Times reported.

Nadler’s letter reiterated his previous calls for a special prosecutor with broad authority to investigate violations of federal laws that prohibit torture. He also objected to any investigation limited to “activities by interrogators, working in bad faith, that fell outside the ‘four corners’ of the legal memos” provided by lawyers of the Justice Department’s Office of Legal Counsel, where Yoo and Bybee worked.

“First, such an investigation would fail to consider the possible violation of laws by high-ranking officials and lawyers who, through legal advice or otherwise, may have authorized torture,” Nadler wrote.

“This country has been instrumental in establishing the principle that high-ranking officials and lawyers who use legal reasoning to justify or otherwise authorize war crimes can, and should, be held legally accountable. The ban on torture is absolute and we have a legal obligation to investigate torture and all of those who may have been party to its use.”

Nadler’s letter was prompted by several news reports published over the past month indicating that Holder was leaning toward a limited criminal probe after reviewing a classified CIA inspector general’s report that reportedly called into question the legality of the Bush administration’s torture program.

The secret findings of CIA Inspector General John Helgerson led to eight criminal referrals to the Justice Department for homicide and other misconduct, but those cases languished as Vice President Dick Cheney is said to have intervened to constrain Helgerson’s inquiries.

Holder may reopen those cases, but if an investigation is narrowly focused on the CIA interrogators and outside contractors and does not include the Bush administration officials who authorized the policies then the probe would likely amount to a whitewash, much like the Abu Ghraib case.

Of the 12 investigations launched in the aftermath of the Abu Ghraib prison scandal, not one scrutinized the roles of Defense Secretary Donald Rumsfeld or any other senior Bush administration official. The inquiries concentrated instead on the military police identified in the photographs, like Private Lynndie England and Corporal Charles Graner Jr.

Such a limited approach would also ignore evidence that senior Bush administration officials and high-level officials at CIA headquarters in Langley micromanaged the torture of at least one high-level detainee.

As first reported by The Public Record, documents released earlier this year in a Freedom of Information Act lawsuit between the American Civil Liberties Union and the CIA showed that CIA interrogators provided top agency officials at Langley with daily “torture” updates of Abu Zubaydah, an alleged “high-level” terrorist detainee who was held at a secret “black site” prison and waterboarded 83 times in August 2002.

Additionally, alleged 9/11 mastermind Khalid Sheikh Mohammed was waterboarded 183 times in the span of a single month. CIA Inspector General Helgerson also “had serious questions about the agency’s mistreatment of dozens more,” according to Jane Mayer, a reporter for The New Yorker and author of the book The Dark Side.

Senior Bush administration officials were known to be closely following these developments and pressed the CIA for more and more results.

Last year, in several interviews prior to exiting the White House, Cheney admitted that he personally authorized the waterboarding of three so-called “high-value” prisoners.

“I signed off on it; others did, as well, too,” Cheney said.

In waterboarding, interrogators strap a person down to a board with a cloth covering his face and then pour water over the cloth, causing the victim to feel as if he is drowning. It is a torture technique dating back at least to the Spanish Inquisition.

“I thought that it was absolutely the right thing to do,” Cheney said of what he called the “enhanced interrogation” of the detainees. “I thought the [administration’s] legal opinions that were rendered [endorsing the harsh treatment] were sound. I think the techniques were reasonable in terms of what they [the CIA interrogators] were asking to be able to do. And I think it produced the desired result.

“Was it torture? I don’t believe it was torture,” Cheney said. “The CIA handled itself, I think, very appropriately. They came to us in the administration, talked to me, talked to others in the administration, about what they felt they needed to do in order to obtain the intelligence that we believe these people were in possession of.”

In his letter to Holder, Nadler suggested statements, like those uttered publicly by Cheney, needed a closer look to determine whether war crimes were committed.

“The Geneva Conventions obligate High Contracting Parties such as the United States to investigate and bring before our courts those individuals ‘alleged to have committed, or to have ordered to be committed grave breaches of those Conventions.

“The War Crimes Act… specifically identifies torture and cruel or inhuman treatment, as well as the conspiracy to commit those acts, as punishable war crimes. The federal Torture Statute …  criminalizes torture and the conspiracy to commit torture.”

Nadler said if Holder decides to sign off on a criminal investigation a prosecutor must probe whether “federal criminal laws were violated by individuals who authorized or participated in the interrogation of detainees, including high-ranking officials and lawyers from the Department of Justice itself who allegedly approved or ordered the use of enhanced interrogation techniques that amounted to torture.”

Nadler added, “The ban on torture is absolute: ‘no exceptional circumstances whatsoever . . . may be invoked as a justification of torture,’ and ‘an order from a superior officer . . . may not be invoked as a justification of torture.’

“It may prove true that some interrogators faced difficult choices – pressure from superiors to obtain intelligence information from detainees coupled with directives or advice indicating that harsh interrogation methods were lawful – but limiting the scope of investigation to exclude individuals up front ignores the absolute bar on torture and our legal obligation to investigate torture, and is not necessary.

“If, indeed, laws were violated, the Detainee Treatment Act of 2005 provides a limited defense for those interrogators who show that they relied in good faith on legal advice in using interrogation methods that they did not know, and that a reasonable person would not know, were unlawful.
“These determinations are necessarily fact-based, and making ultimate decisions as to what the facts might prove or disprove, before any independent investigation has occurred, is unwarranted and would undermine the credibility of any investigation.”

In April, Holder declared that it “would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department.” That meant any possible criminal investigation would be limited to examining actions that went beyond what was sanctioned, such as repetitious use of waterboarding.

Last year, in the heat of the presidential campaign, Holder, who was a featured speaker at the American Constitution Society’s annual convention, told a packed crowd that the “American people are owe[d] a reckoning” as a result of the “abusive” and “unlawful” policies of the Bush administration.

“Our government authorized the use of torture, approved of secret electronic surveillance of American citizens, secretly detained American citizens without due process of law, denied the Writ of Habeus Corpus to hundreds of accused enemy combatants, and authorized the use of procedures that both violate international law and the United States Constitution,” Holder said in June 2008. “We owe the American people a reckoning.”

Obama, however, has been resistant to any investigation that would “look backward” and divert attention away from his domestic agenda.

Yet, Nadler said that can’t happen without a wide-ranging investigation.

“I appreciate and share the desire to put this unfortunate chapter in our nation’s history behind us, but we cannot do so without fulfilling our legal and moral obligation to investigate whether laws were broken by those who conducted and those who authorized the enhanced interrogation practices.”

It’s the second letter Nadler sent to Holder this year calling for a criminal investigation into the Bush administration’s torture policies. He also sent Holder a letter  on April 28 that was signed by other Democratic lawmakers who are members of the House Judiciary Committee. Nadler is chairman of the panel’s subcommittee on the Constitution, Civil Rights, and Civil Liberties Committee on the Judiciary.

That letter was sent a couple of weeks after the Obama administration released Justice Department memoranda which authorized CIA interrogators to torture “high-value” detainees and legalized domestic surveillance activities.

Tuesday’s letter comes on the heels of several news reports published last month stating that Holder is considering  the possibility of appointing a federal prosecutor.

But, as The Public Record reported last week, those same news reports, quoting unnamed sources, say that if Holder decides in the coming weeks to authorize a criminal investigation it would be limited to the “few bad apples” at the CIA who exceeded interrogation limits set by Justice Department attorneys in memos that authorized brutal acts of torture against suspected terrorists.

Nadler said he is “fundamentally concerned that the scope of the special counsel investigation will be too narrow.”

“There simply is no legal, moral or principled reason to insulate those who authorized the torture of detainees, either through legal reasoning or other policy directive, from investigation,” Nadler wrote. “This country has been instrumental in establishing the principle that high-ranking officials and lawyers who use legal reasoning to justify or otherwise authorize war crimes can, and should, be held legally accountable.

“The ban on torture is absolute and we have a legal obligation to investigate torture and all of those who may have been party to its use.”

Holder will likely make a decision if and when a CIA inspector general’s report is released that reportedly calls into question the legality of the agency’s torture of “high-value” detainees. The report is expected to be released at the end of August.

The secret findings of CIA Inspector General John Helgerson led to eight criminal referrals to the Justice Department for homicide and other misconduct, but those cases languished as Vice President Dick Cheney is said to have intervened to constrain Helgerson’s inquiries.

Holder may reopen those cases, but if an investigation is narrowly focused on the CIA interrogators and outside contractors and does not include the Bush administration officials who implemented the policies then the probe would likely amount to a whitewash, much like the Abu Ghraib case.

Of the 12 investigations launched in the aftermath of the Abu Ghraib prison scandal, not one scrutinized the roles of Defense Secretary Donald Rumsfeld or any other senior Bush administration official. The inquiries concentrated instead on the military police identified in the photographs, like Private Lynndie England and Corporal Charles Graner Jr.

Such a limited approach would also ignore evidence that senior Bush administration officials and high-level officials at CIA headquarters in Langley micromanaged the torture of at least one high-level detainee.

Documents released earlier this year in a Freedom of Information Act lawsuit between the American Civil Liberties Union and the CIA showed that CIA interrogators provided top agency officials at Langley with daily “torture” updates of Abu Zubaydah, the alleged “high-level” terrorist detainee, who was held at a secret “black site” prison and waterboarded 83 times in August 2002.

Additionally, alleged 9/11 mastermind Khalid Sheikh Mohammed was waterboarded 183 times in the span of a single month. CIA Inspector General Helgerson also “had serious questions about the agency’s mistreatment of dozens more, including Khalid Sheikh Mohammed,” according to Jane Mayer, a reporter for The New Yorker and author of the book The Dark Side.

Senior Bush administration officials were known to be closely following these developments and pressed the CIA for more and more results.

Last year, in several interviews prior to exiting the White House, Cheney admitted that he personally authorized the waterboarding of three so-called “high-value” prisoners.

“I signed off on it; others did, as well, too,” Cheney said.

Waterboarding, in which a person is strapped down to a board with a cloth covering his face and then water is poured over it, is a torture technique dating back at least to the Spanish Inquisition. The victim feels as if he is drowning.

“I thought that it was absolutely the right thing to do,” Cheney said of what he called the “enhanced interrogation” of the detainees. “I thought the [administration’s] legal opinions that were rendered [endorsing the harsh treatment] were sound. I think the techniques were reasonable in terms of what they [the CIA interrogators] were asking to be able to do. And I think it produced the desired result.

“Was it torture? I don’t believe it was torture,” Cheney said. “The CIA handled itself, I think, very appropriately. They came to us in the administration, talked to me, talked to others in the administration, about what they felt they needed to do in order to obtain the intelligence that we believe these people were in possession of.”

In his letter to Holder, Nadler said he has two “fundamental concerns” with any investigation that is limited to “activities by interrogators, working in bad faith, that fell outside the ‘four corners’ of the legal memos” provided by lawyers from the Office of Legal Counsel of the Department of Justice.”

“First, such an investigation would fail to consider the possible violation of laws by high-ranking officials and lawyers who, through legal advice or otherwise, may have authorized torture,” he wrote.

Additionally, as he wrote in an April 28 letter to Holder, any criminal investigation into the Bush administration’s torture policies must also determine whether war crimes were committed.

“The Geneva Conventions obligate High Contracting Parties such as the United States to investigate and bring before our courts those individuals ‘alleged to have committed, or to have ordered to be committed grave breaches of those Conventions.

“The War Crimes Act… specifically identifies torture and cruel or inhuman treatment, as well as the conspiracy to commit those acts, as punishable war crimes. The federal Torture Statute.. criminalizes torture and the conspiracy to commit torture.”

Nadler said if Holder decides to sign off on a criminal investigation a prosecutor must probe whether “federal criminal laws were violated by individuals who authorized or participated in the interrogation of detainees, including high-ranking officials and lawyers from the Department of Justice itself who allegedly approved or ordered the use of enhanced interrogation techniques that amounted to torture.”

“The ban on torture is absolute: ‘no exceptional circumstances whatsoever . . . may be invoked as a justification of torture,’ and ‘an order from a superior officer . . . may not be invoked as a justification of torture.’

“It may prove true that some interrogators faced difficult choices – pressure from superiors to obtain intelligence information from detainees coupled with directives or advice indicating that harsh interrogation methods were lawful – but limiting the scope of investigation to exclude individuals up front ignores the absolute bar on torture and our legal obligation to investigate torture, and is not necessary.

“If, indeed, laws were violated, the Detainee Treatment Act of 2005 provides a limited defense for those interrogators who show that they relied in good faith on legal advice in using interrogation methods that they did not know, and that a reasonable person would not know, were unlawful. These determinations are necessarily fact-based, and making ultimate decisions as to what the facts might prove or disprove, before any independent investigation has occurred, is unwarranted and would undermine the credibility of any investigation.”

In April, Holder declared that it “would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department.” What that meant was that a possible criminal investigation would be limited to examining actions that went beyond what was sanctioned, such as repetitious use of waterboarding.

Last year, in the heat of the presidential campaign, Holder, who was a featured speaker at the American Constitution Society’s annual convention, told a packed crowd that the “American people are owe[d] a reckoning” as a result of the “abusive” and “unlawful” policies of the Bush administration.

“Our government authorized the use of torture, approved of secret electronic surveillance of American citizens, secretly detained American citizens without due process of law, denied the Writ of Habeus Corpus to hundreds of accused enemy combatants, and authorized the use of procedures that both violate international law and the United States Constitution,” Holder said in June 2008. “We owe the American people a reckoning.”

Obama, however, has been resistant to any investigation that would “look backward” and divert attention away from his domestic agenda.

Yet, Nadler said that can’t happen without a wide-ranging investigation.

“I appreciate and share the desire to put this unfortunate chapter in our nation’s history behind us, but we cannot do so without fulfilling our legal and moral obligation to investigate whether laws were broken by those who conducted and those who authorized the enhanced interrogation practices.”

The American Civil Liberties Union and the Geneva-based Alkarama for Human Rights have requested that two U.N. Special Rapporteurs investigate the circumstances of Abou Elkassim Britel’s forced disappearance, rendition, detention and torture, and raise his case with the governments of the United States, Morocco, Pakistan and Italy.

The requests were made to the U.N. Special Rapporteurs on Torture and the on the Promotion and Protection of Human Rights while Countering Terrorism.

“Victims of the ‘extraordinary rendition’ program detained at Guantánamo and other prisons around the world are being ignored by the U.S. government, whose unlawful program landed them there in the first place,” Steven Watt, staff attorney with the ACLU Human Rights Program, told us.

He said, “The U.S. has failed to take responsibility for its most egregious actions, leaving Mr. Britel and countless other victims of the ‘extraordinary rendition’ program with no choice but to turn to the international community for justice.”

Britel, who is also a plaintiff in the ACLU’s lawsuit against Boeing subsidiary Jeppesen DataPlan for its role in the rendition program, is one of the few victims of the program whose identity is known, and who is still detained outside of Guantánamo Bay.

Britel was initially apprehended and detained in Pakistan by Pakistani authorities on alleged immigration violations in February 2002. After a period of detention and interrogation there, he was handed over to U.S. officials.

The ACLU charges that in May 2002, U.S. officials stripped and beat Britel before dressing him in a diaper and overalls, shackling and blindfolding him and flying him to Morocco for detention and interrogation. Once in Morocco, they say U.S. officials handed him over to Moroccan intelligence officials who detained him incommunicado at the Temara detention center, where he was interrogated, beaten, deprived of sleep and food and threatened with sexual torture.

Britel was released from custody by Moroccan authorities in February 2003, but was again arrested and detained in May 2003 as he attempted to leave Morocco for his home in Italy. While detained incommunicado in the same detention facility where he had been tortured months earlier, Britel falsely confessed under torture to his involvement in terrorism. He was later tried and convicted by a Moroccan court on terrorism-related charges and is currently serving a nine-year sentence in a Moroccan prison.

In 2006, an Italian investigating judge dismissed a six-year long investigation into Britel’s alleged involvement in terrorism after the judge found a complete lack of evidence linking him with any terrorist-related or criminal activity.

In a related development, the U.N.’s top human rights advocate, Navanethem Pillay, this week called on the Obama administration to release Guantanamo Bay inmates or try them in a court of law.

The U.N. High Commissioner for Human Rights said that officials who authorized the use of torture must be held accountable for their crimes. She called for a probe into officials who participated in torture sessions or provided its legal justification.

The South African lawyer was also critical of President Obama’s decision to hold some suspected terrorists in detention indefinitely without trial.

“People who order or inflict torture cannot be exonerated, and the roles of certain lawyers, as well as doctors who have attended torture sessions, should also be scrutinized,” she said.

While praising the Obama administration for banning many of the harshest interrogation techniques, she said it needed to go further, providing victims of U.S. abuses with an opportunity to rebuild their lives.

“I believe we are finally starting to turn the page on this extremely unfortunate chapter of recent history, with counter-terrorism measures starting to move back in to line with international human rights standards,” Pillay said.

“But there is still much to do before the Guantanamo chapter is truly brought to a close.”

Pillay’s remarks challenged Obama’s decision to limit investigation into past abuses and to continue to hold some detainees who have not been charged with a crime. In May, Obama said some detainees deemed too dangerous to release might have to be held indefinitely.

“There should be no half-measures, or new creative ways to treat people as criminals when they have not been found guilty of any crime,” Pillay said.

“Guantanamo showed that torture and unlawful forms of detention can all too easily creep back in to practice during times of stress, and there is still a long way to go before the moral high ground lost since 9/11 can be fully reclaimed.”

But Pillay did not address the Obama administration’s decision to use reformed military commissions to try suspected terrorists. Human rights groups have criticized the commissions, particularly that terror suspects could be convicted and executed based on evidence obtained by torture.

Pillay said that detainees who are not prosecuted and potentially face torture if they are sent back to their own countries “must be given a new home, where they can start to build a new life, in the United States or elsewhere. I welcome the fact that in recent weeks a number of countries have agreed to take in a few people in this position, and urge others to follow suit, including first and
foremost the United States itself.”

Earlier this month, the first Guantanamo detainee, Ahmed Ghailani, was flown to the United States to face death-pentalty  charges for his alleged role in the 1998 bombing of two U.S. embassies in East Africa. He is in custody in New York City.

But huge majorities of both Republican and Democratic lawmakers have resisted allowing any more of the remaining 229 detainees at Guantanamo into the United States. Republicans, in particular, have said they do not want GITMO detainees “wandering around in their neighborhgoods.”

As a result, the Senate voted 90 to 6 in May to withhold funding for the closure of Guantanamo until the Obama Administration submits a plan for doing so.

Pillay was also highly critical of the administration of George W. Bush. She charged that the Bush administration’s counterterrorism policies had undermined international efforts to end torture. “The terrorist acts that shook the world on 11 September 2001 had a devastating impact on the fight to eliminate torture,” she wrote. “Some states that had previously been careful not to practice or condone torture became less scrupulous.”

Pillay called for “leadership” to end “this grotesque practice.” She welcomed Obama’s decision to close Guantanamo by next January and to ban waterboarding and other extreme interrogation techniques.

“Equally importantly, victims of torture must be helped to recover from one of the worst ordeals that a human being can face. The physical and mental scars of torture are excruciating, the effect on families devastating, and there are often long-term socio-economic effects, including a stigma that can be extremely hard to erase. Victims of torture must be compensated and cared for — for as long as it takes to enable them once again to lead a relatively normal life,” she said.

The legislation will now be sent to the House, but it’s unclear whether Democratic lawmakers will support it. The photo ban was previously included as an amendment in a $106 billion Iraq/Afghanistan supplemental spending bill, which the Senate approved Thursday. The House passed the supplemental spending bill Tuesday and stripped the amendment that sought to block the release of the images.

The amendment was sponsored by Senators Joe Lieberman, I-Conn., and Lindsey Graham, R-SC. For the past month, Graham and Lieberman have waged a public campaign to force President Barack Obama to block the release of the photos by appealing to the case to the Supreme Court. The 2nd Circuit Court of Appeals rejected previous efforts by the Bush administration to keep the photos classified. Graham and Lieberman had vowed to filibuster the supplemental spending bill if their measure was not passed by the Senate. [Please see The Public Record's exclusive report for a detailed description of the photographs.].

Graham said Wednesday he removed his hold on the spending bill for Iraq and Afghanistan and other legislation after he received assurances from Rahm Emanuel, Obama’s chief of staff, that if the House refuses to back the legislation banning the release of the photos President Obama will issue an executive order prohibiting the Department of Defense from turning over the images to the American Civil Liberties Union. The civil rights group sued to gain access to photos and videos related to the treatment of detainees in U.S. custody.

“I wanted to be assured by the administration that if the Congress fails to do its part to protect these photos from being released, the President would sign an Executive order which would change their classification to be classified national security documents that would be outcome determinative of the lawsuit,” Graham said Wednesday before his measure was sent to the floor for a vote. “Rahm Emanuel has indicated to me that the President is committed to not ever letting these photos see the light of day, but they agree with me that the best way to do it is for Congress to act.”

In a joint statement Thursday, Graham and Lieberman said, “Passing this bill is essential to protecting our fighting men and women.”

“Each one of these photos would be tantamount to a death sentence to those serving our nation in the most dangerous and difficult spots like Iran, Afghanistan and elsewhere.”

Graham and Lieberman’s bill prohibits the release of the abuse photos for three years. Either the Secretary of Defense or Obama has authorization to extend the ban for an additional three years. Graham said he has not seen the photos at issue in “years” but he intends to view them again next week.

Gabor Rona, International Legal Director of Human Rights First, said, “Sen. Lieberman and Graham’s claims might carry more weight had the US government been consistently honest about the mistreatment it authorized. But as long as the American people are kept in the dark about what crimes were committed in their name, they cannot intelligently exercise their democratic right and obligation to call for corrective measures.”

ACLU executive director Anthony Romero said “the Obama administration’s adoption of the stonewalling tactics and opaque policies of the Bush administration flies in the face of the President’s stated desire to restore the rule of law, to revive our moral standing in the world and to lead a transparent government. …

“It is true that these photos would be disturbing; the day we are no longer disturbed by such repugnant acts would be a sad one. In America, every fact and document gets known – whether now or years from now. And when these photos do see the light of day, the outrage will focus not only on the commission of torture by the Bush administration but on the Obama administration’s complicity in covering them up.”

By opposing the release of photographic and other evidence of prisoner abuse, Obama is furthering a long-running cover-up that has protected senior Bush administration officials who set the harsh interrogation policies that led to torture and other misconduct.

In effect, Obama’s reversals on his earlier pledges of openness regarding alleged U.S. war crimes means that he is shutting the door on new internal investigations that might go beyond the truncated inquiries allowed by President George W. Bush and his top aides.

Retired Lt. Gen. Ricardo Sanchez, who was commander of U.S. forces in Iraq at the time of the Abu Ghraib scandal, confirmed in a recently published paperback version of his book, Wiser in Battle, that the prisoner-abuse investigations were constrained for political reasons.

“A meaningful and unlimited investigation, which the Bush administration adamantly opposed, would result in an unmitigated disaster,” Sanchez wrote. “It would open up Pandora’s box and let out a world of evil.”

Sanchez added, “It’s now clear the Bush administration did not tell the truth about the use of torture at Guantanamo Bay, or in Afghanistan and Iraq. … In the aftermath of Abu Ghraib, administration officials worked diligently to deflect responsibility away from them and down to military leadership on the ground. …

“It is also apparent that the White House and the Department of Defense consistently attempted to minimize any further exposure of their actions and, specifically, to prevent a serious investigation into their executive-decision making process.”

Sanchez wrote that “to prevent this [disgrace] from ever happening again” and “to restore America’s moral authority,” the Obama administration and Congress “must conduct more comprehensive investigations across all involved agencies, learn from the findings, and implement permanent changes.”

But it’s becoming increasingly clear that after deciding in April to disclose four Justice Department memos rationalizing torture, Obama was stung by the backlash from former Vice President Dick Cheney and other Bush administration defenders. Since then, the President has opposed release of the abuse photos and other documents related to the interrogations.

Obama claims that further disclosures would only inflame the Muslim world and endanger American troops in Iraq and Afghanistan, but he also has adopted Bush’s long-discredited claim that the mistreatment of detainees was the work of few miscreant MPs.

“The individuals who were involved [in prisoner abuses] have been identified, and appropriate actions have been taken,” Obama said in a statement last month. “It’s therefore my belief that the publication of these photos would not add any additional benefit to our understanding of what was carried out in the past by a small number of individuals.”

Also pushing Obama to keep the photos secret were two military holdovers from the Bush administration – Gen. Ray Odierno, Bush’s last commander of U.S. forces in Iraq who remains there under Obama, and Defense Secretary Robert Gates. Pentagon spokesman Geoff Morrell said it was Odierno who convinced Gates to make a fight over the photo release.

Change of Course

Obama’s decision to fight to conceal the photos marks an about-face on the open-government policies that he proclaimed during his first days in office.

On Jan. 21, he signed an executive order instructing all federal agencies and departments to “adopt a presumption in favor” of Freedom of Information Act requests and promised to make the federal government more transparent.

“The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears,” Obama’s order said. “In responding to requests under the FOIA, executive branch agencies should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.”

Last September, in upholding a lower court ruling ordering the release of the photos, the U.S. Court of Appeals for the 2nd Circuit noted that past U.S. administrations had championed the release of photos that showed prisoners of war being abused and tortured.

Notably, after World War II, the U.S. government publicized photos of prisoners in Japanese and German prisons and concentration camps, which the court noted “showed emaciated prisoners, subjugated detainees, and even corpses. But the United States championed the use of the photos as a means of holding the perpetrators accountable.”

The Bush administration’s legal arguments for withholding the photographs were rife with examples of hypocrisy, including an argument that release of the photos – even with the personal characteristics of detainees obscured – would violate their privacy rights under the Geneva Conventions.

The irony was that the Bush administration — with the help of legal opinions drafted by Justice Department lawyers — had maintained that detainees from the war in Afghanistan and the larger “war on terror” were not entitled to prisoner of war protections under the Geneva Conventions.

The ACLU argued that the Bush administration’s legal strategy was “surprising because there would be no photos of abuse to request had the government cared this much about the Geneva Conventions before the abuses occurred and the photos were taken.”

In disputing the administration’s selective application of these international standards, the ACLU noted that “the Geneva Conventions were designed to prevent the abuse of prisoners, not to derail efforts to hold the government accountable for those abuses.”

Federal courts agreed with the ACLU’s arguments. The 2nd Circuit Court of Appeals deemed the Bush administration’s position legally flawed and added that releasing “the photographs is likely to further the purposes of the Geneva Conventions by deterring future abuse of prisoners.”

The appeals court also shot down the Bush administration’s attempt to radically expand Freedom of Information Act exemptions for withholding the photos, stating that the Bush administration had attempted to use the FOIA exemptions as “an all-purpose damper on global controversy.”