In effect, Judge Eloy Velasco sent the case back to the U.S. at the request of the Department of Justice, who argued in their March 1, 2011 letter to the judge that the U.S. is plenty interested in investigating and prosecuting torture and other war crimes. Besides the cases of CIA contractors David Passaro and Don Ayala (Marcy Wheeler discusses the Passaro case here), assorted Defense Department prosecutions of “bad apple” abusers, and the lingering Durham investigation, the U.S. representation cannot dredge up any significant criminal investigations — except one (if it is one).

The letter rogatory to the Spanish court refers to “pending federal investigations by the United States Attorneys’ Office for the Eastern District of Virginia” on “various allegations of abuse of detainees.” (p. 3-4 of letter) In addition the letter refers to “pending status and legal restrictions on the disclosure of investigative information, including rules of grand jury secrecy”. Since there has been no previous reports on current grand jury proceedings in the Eastern District on detainee abuse that I know of, is this a reference to the former cases since sent from the Eastern District by Attorney General Holder in 2009 for review by special prosecutor John Durham? Or is this something new? Have some of the cases under preliminary review by Mr. Durham now reached full investigation status?

DoJ Keeps Mum on Virginia “Pending” Investigation

In response to such questions, Dean Boyd, spokesman for the National Security Division at the Department of Justice replied to me today, “There is nothing further I can provide to you on this matter beyond what is in the document.”

Since the U.S. representation to the Spanish court was meant to convince the judge that the U.S. was serious about seeking investigations and prosecutions regarding torture, it is important to know whether a new stage in the otherwise dilatory investigations by the Obama administration, who famously has announced it would rather look forward and not backwards when it comes to investigating torture, has been hereby announced, or whether this was a con job by DoJ, describing the Eastern District grand jury as somehow still in play, when in reality, its actions on detainee abuse are non-existent, waiting for some determination of the review by Durham and his office.

Durham’s review has also been going on for over a year and a half now. But it was last June when, according to an article at Main Justice, Attorney General Holder said in remarks at the University of the District of Columbia Law School, that Durham was near the end of his preliminary review, and ”close to the end of the time that he needs and will be making some recommendations to me.” Did those recommendations include a referral back to the Eastern District for investigation and prosecution of those cases? According to the article, “several Justice officials cautioned that although Durham is nearing completion, it may take weeks or months to absorb his findings and decide what steps, if any, to pursue next.”

In a rebuttal letter to the U.S. response, the Center for Constitutional Rights (CCR), which has been championing the Spanish prosecution, appears to believe the entire episode as written up in the recent March 1 letter is a smokescreen for a whole lot of nothing. CCR wrote, “The U.S. Submission tries to hide behind the secrecy aspects of the grand jury proceedings to suggest that this investigation is a robust investigation into detainee abuse. It is notable, however, that the United States government has not spoken of any investigation in Virginia when discussing US investigations into US torture…” (PDF).

It must be galling to those looking to the Spanish court, and the hard workers at CCR especially, to see Judge Velasco so quickly take U.S. guarantees of sincerity as good coin. The U.S. had told the court, “The United States will continue to address allegations of abuse by its personnel, at home and abroad, and therefore believes it is appropriate for the Spanish courts to refer complaints related to such matters to the United States for appropriate review and action.”

CCR responded, noting the Obama administration policy of impunity for torture among mid-level and high-ranking government figures:

Through its actions and inactions, the U.S. clearly has demonstrated its unwillingness to exercise its jurisdiction to investigate and prosecute the named defendants for serious violations of international law. To refer this investigation from Spain to the United States would be to knowingly transfer this case to be closed.

Those following the torture scandal will find high irony in the U.S. claims that the DoJ Office of Public Responsiblity (OPR) and Senate Armed Services Committee (SASC) investigations, into DoJ Office of Legal Counsel malfeasance on the torture memos and on the origins and spread of the DoD torture program, respectively, are somehow indicative of U.S. good faith on investigations. The OPR report found government attorneys John Yoo and Jay Bybee to be guilty of “professional misconduct,” only to have DoJ Associate Deputy Attorney General David Margolis downgrade the OPR decision. The SASC investigation found the torture at Abu Ghraib, Guantanamo and elsewhere to be the responsibility not of “bad apples” in the military, but of high officials who promoted a program of torture and detention abuse.

It seems unlikely that the Durham investigation is actually going to bear any fruit, or that a grand jury investigation on detainee abuse is actually underway in Virginia. Sooner or later, we will know the truth. But whatever it is, the actions and policy of the Obama administration won’t fundamentally change, as high officials, such as those identified in the Spanish case — David Addington, Jay S. Bybee, Douglas Feith, Alberto R. Gonzales, William J. Haynes, and John Yoo — are not in any danger of prosecution. The U.S. has made that clear numerous times, and most lately in the response to the Spanish judge.

Update, Thursday morning, 7:25 PDT,: Center for Constitutional Rights released a statement today regarding Velasco’s dismissal of “this politically charged case,” noting that the U.S. made it clear in it’s statement that “the Department of Justice has concluded that it is not appropriate to bring criminal cases with respect to any other executive branch officials, including those named in the complaint, who acted in reliance on [Office of Legal Counsel] memoranda during the course of their involvement with the policies and procedures for detention and interrogation.”

“This decision is a cowardly political act by a judge afraid to pursue justice under his country’s own laws. He is hiding behind the fig leaf of the U.S.’s scant seven-page response, but the submission made clear the U.S. has no intention of investigating these crimes or holding higher-level officials accountable for torture. As we saw from the WikiLeaks cables, the U.S. has been pressuring Spain to drop the case and interfering with the independence of judges. A second U.S. torture case remains open in Spain after a higher court ruled it should continue on February 25. Judge Velasco asked for opposing views but then issued his decision without even looking at our detailed submission refuting the U.S. claims. We will fight this decision and continue to demand accountability for torture.”

Photo/redstarphoto.net

The weather in the Bay Area is radiant — hot, sunny, and astonishing for mid-October — and, although a ten-hour flight from London and my usual paranoia about Homeland Security could hardly be described as constituting the best recipe for a relaxing welcome to the United States, I got off the plane at Los Angeles International Airport at 2.30 pm on Saturday (while my body was telling me it was 10.30 pm) with something of a spring in my step.

I’m here for a week to take part in “Berkeley Says No to Torture” Week, an extraordinary series of events to raise awareness of the United States’ use of torture in the “War on Terror” — and, specifically, to highlight how its use is illegal, morally corrosive, unnecessary and counter-productive. The entire week is taking place in Berkeley not just because of its historical reputation as a place where people understand the difference between right and wrong, but also because one of the architects of the Bush administration’s torture program — the unapologetic John Yoo, who wrote the notorious “torture memos,” which sought to redefine torture and approved its use on prisoners in the “War on Terror” — is a law professor at UC Berkeley.

My presence here is entirely due to the fundraising efforts of the World Can’t Wait, who put together “Berkeley Says No to Torture” Week with the National Lawyers Guild (San Francisco), Progressive Democrats of America, Meiklejohn Civil Liberties Institute, National Accountability Action Network, Code Pink, FireJohnYoo.org, Berkeley Fellowship of Unitarian Universalists Social Justice Committee and the Rev. Kurt Kuhwald, and I’m delighted that the week was approved by Berkeley City Council on September 21, when a Resolution was adopted to hold a week of public educational events to educate the community about torture.

With the American public divided into those who oppose the use of torture and believe that those who authorized it should be held accountable, those who have bought the lie that it is necessary and makes us safer, and those who prefer not to think about it at all, this is an extremely important week of events, and should have a resonance that reaches far beyond the Bay Area, especially as so many excellent activists, journalists, authors, artists and psychologists are involved, including Adrianne Aron, Shahid Buttar, Marjorie Cohn, Barry Eisler, Larry Everest, Ruth Fallenbaum, Clinton Fein, Jeffrey Kaye, Mimi Kennedy, Jason Leopold, devorah major, Ray McGovern, Rita Maran, Kathy Roberts, Renee Saucedo, Peter Selz, Justine Sharrock, Cindy Sheehan, Abdi Soltani, Debra Sweet, Fr. Louis Vitale and Ann Wright.

Yesterday evening, “Berkeley Says No to Torture” Week kicked off at Revolution Books with an author event featuring myself (as the author of The Guantánamo Files) and Justine Sharrock, author of Tortured: When Good Soldiers Do Bad Things. With a very lively crowd in attendance, Justine and I ran through various aspects of the “War on Terror” — in particular, its effects on those subjected to arbitrary detention and torture in the cages of Guantánamo and elsewhere, and, through Justine’s account, its effect on the US soldiers required to implement this torture and cruelty by their political masters, who, as the Abu Ghraib scandal showed, then tried to pretend that it was the work of “a few bad apples.”

It was not, of course. The dehumanization and torture of the men and boys detained in the “War on Terror” — in Afghanistan and Iraq, at Guantánamo and in secret prisons — was directed from the highest levels of the Bush administration — by George W. Bush, Dick Cheney, Donald Rumsfeld and others — and in refusing to thoroughly address and repudiate these actions, and to hold accountable those who authorized America’s slide into barbarity, President Obama continues to send out a message that it is OK for the nation’s most senior officials to break the law so long as they leave the White House after two terms. He has also, sad to say, perpetuated many of the Bush administration’s crimes, and added some of his own, and, as part of the bigger picture, has presided over what appears to be nothing less than a battle for the soul of America, between those who embrace endless war, barbarity and torture, and those who do not.

The Bush administration talked of the “War on Terror” as a war that might last for generations. Those of us who oppose it must be aware that our struggle may also be generational, but I am pleased to note that this seemed to be appreciated by the audience at Revolution Books yesterday evening, and it was noticeable that the spirit that burns against injustice appeared to be burning more brightly than it was nearly a year ago, when I last visited the US to promote the documentary film, “Outside the Law: Stories from Guantánamo” (which I co-directed with Polly Nash), which, not coincidentally, is showing this evening, at 7 pm, at Berkeley Fellowship of Unitarian Universalists Fellowship Hall, at 1924 Cedar Street.

If you’re in the area, come along, and please see here for the full list of events this week.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

That torture has been pervasive I am persuaded of. That the bizarre torture memos crafted by John Yoo and Jay Bybee and their gang differ less than we might think from previous legal memos, laws, and treaties I accept to some extent. That the US prison and immigration systems fed into the new torture regime is beyond dispute. But Parry could have picked out many times and places to describe that did not use torture to the same extent. The racist and colonialist attitudes that Parry sees as a major support for torture are not constant. The fact that someone can make a twisted legalistic argument for torture does not make it legal beyond serious dispute. The new public acceptance and mainstreaming of torture in the United States has been a dramatic change, at least in awareness; and a dramatic change in a different direction, even as a reaction to this one, is possible.

As Parry notes, the International Covenant on Civil and Political Rights bans both torture and cruel, inhuman, or degrading treatment. If we need to clarify that this ban allows no exceptions based on time or place or citizenship or any other factor, then let us clarify that and put it into our Constitution, our treaties, and our statutes, with a requirement to prosecute every act of conspiracy to engage in any such behavior. The world order will not collapse, at least not in a bad way.

But there is a more serious problem, I think. Namely, murder seems to be advancing in the U.S. toolkit as a replacement for torture. Both tools, murder and torture, produce exactly the same amount of useful intelligence. Both tools scare the hell out of people abroad and at home. Both tools serve to teach a domestic audience that certain types of people are not fully people and cannot be dealt with humanely. Both tools help to advance the further stripping away of civil liberties through fear and terror. The goals of torture that the CIA has advanced for decades of eliminating a person’s entire consciousness and identity, the mission of placing barbarians completely under control of the empire, what accomplishes this better than murder?

Look at all the hassle our government has been through trying to legalize and justify torture, not to mention the kidnappings and imprisonments necessary to engage in torture. We’ve seen CIA agents indicted in Italy and prosecutions of high level Americans opened in Spain. Former officials are facing civil suits in the United States for damages. Who needs the headaches? The Director of National Intelligence legalized the assassination of Americans abroad, and by implication any non-Americans as well, by going to Congress in February and announcing that such crimes would henceforth be legal. Easy peasey. No fuss, no muss. And if you want some future al-Libi to tell you that some future Iraq has scary scary weapons, don’t torture him; announce that he manages the stockpile and then put a bullet in his head.

President Obama has ordered the murder of American citizen Anwar al-Awlaki. Like the innocent but tortured Abu Zubaydah (innocent at least of any of the crimes he was accused of), Awlaki is now the mastermind terrorist of the universe. And once he’s dead, who’s to say he wasn’t? Who can demand a trial or access to documents? He’ll be dead. See the beauty of it?

If the top mastermind is in Yemen, what the hell are we doing building a quagmire in Afghanistan? Don’t ask. But notice this: we have dramatically increased the use of missile strikes to assassinate in Afghanistan and Pakistan. And we have increased the use of murderous night-time raids to such an extent that we now kill more civilians in that way than we do with drones. They’re the “wrong people,” or neighbors who came to help, or family members clinging to loved ones. Sometimes they’re young students with their hands tied behind their backs. Accidents will happen. But no U.S. officials’ future book tours are going to be interrupted by protesters, since there’s no torture involved. Civilization is on the march!

David Swanson is the author of the new book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union by Seven Stories Press.  You can order it and find out when tour will be in your town: http://davidswanson.org/book

I gave Yoo every opportunity I could to place a limit on presidential power.  Can a president shoot missiles in the United States?  Can a president drop nukes in the United States?  Yoo refused to concede any limits.

Yoo used the example of shooting down one of the airplanes on 9-11 to assert that a president could indeed use drones to shoot missiles at suspected enemies within the United States, assuming of course that the president proclaims it to be “wartime.”

So, can a president drop nukes in the United States?  Yoo refused to deny a president even that power.  He chose to respond by focusing on the example of Hiroshima, arguing for Truman’s rightful power to do what he did, but my question had involved dropping nukes in the United States, and Yoo’s answer made clear that he acknowledged no limitation on that power.  Watch the video below.

David Swanson is co-founder of AfterDowningStreet.org and author of the new book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union by Seven Stories Press. You can order it and find out when tour will be in your town by visiting davidswanson.org/book.

Photo/Wikimedia

Sunshine Week, according to its website, is “a national initiative to open a dialogue about the importance of open government and freedom of information. Participants include print, broadcast and online news media, civic groups, libraries, nonprofits, schools and others interested in the public’s right to know.”

The University of Virginia here in Charlottesville is doing its part by hosting book tour stops for the chief author of the worst secret laws ever established. John Yoo will be speaking at the Miller Center and at an event hosted by the Federalist Society. Yoo will be speaking in support of unlimited presidential power, including the power to create secret laws.

When we think of government openness, we usually think in terms of allowing the public to verify that the government is properly executing the laws. There are no provisions for allowing the public to request access to know what the laws are, because laws are by definition public. Unless, that is, the laws are memos written by people like John Yoo at the request of a president.

Why would such memos be kept secret? Because sometimes the purpose of the memos is to legalize blatant crimes, to overturn actual laws with secret laws — something a U.S. president does not have a constitutional right to do, no matter whether it’s “wartime” or not. News of presidential “laws” legalizing obvious crimes could stir up concerns. Better to keep them in reserve as a legal defense if needed. In fact, Yoo wrote memos to legalize some crimes that had already occurred. But who was going to know which came first, the crime or the “law”, as long as it all stayed secret?

Yoo legalized aggressive war at the whim of any president, brushing aside the US Constitution, the War Powers Act, and the UN Charter, creating a new (secret) law in their place. Yoo legalized imprisoning people without any due process, tossing out habeas corpus and half the Bill of Rights. He legalized warrantless spying and torture, in blatant violation of real laws, public laws, laws passed by the legislative branch of the government and placed in the US Code of Law.

Yoo used shoddy scholarship, amateurish lawyering, and absurd reasoning to “legalize” just about whatever the president wanted legalized. Yoo explains now that he was hurried and pressured. Yet he does not retract any of his claims of presidential power. In fact, Yoo has made clear that he wants no limits whatsoever on presidential power. A president, in Yoo’s view, can nuke a city if he is so inclined, and another and another until the world is gone. That’s his right. So, of course, he can spy without warrants, torture, and anything else he likes, regardless of how many precedents the memos overlook or misconstrue.

Bush might not have attacked Iraq without Yoo’s work to secretly “legalize” that invasion. A million Iraqis could still be alive if not for what Yoo and his colleagues did. And had the public been permitted to see what they were doing, we would not have allowed it.

Friday will be Yoo’s second appearance at the Miller Center, which claims they invite him to balance out those who speak against him. Yet the Miller Center has never, to my knowledge, invited a member of the ANTI-war movement to speak.

On Friday Cindy Sheehan (Peace of the Action), Susan Harman (National Accountability Network), Ray McGovern (Veteran Intelligence Professionals for Sanity), Charlotte Dennett (Robert Jackson Steering Committee), Mike Ferner and Ann Wright (Veterans for Peace), Debra Sweet (World Can’t Wait), Shahid Buttar (Bill of Rights Defense Committee), Nancy Mancias (CODE PINK: Women for Peace), Dahr Jamail (journalist), and Mark Lane (attorney), will be leading an anti-war march and a rally to protest John Yoo’s defiance of the rule of public law. We think we’ll be adding more to Sunshine Week than Yoo will. Join us: http://hoosagainstyoo.org

David Swanson is co-founder of AfterDowningStreet.org and author of the new book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union by Seven Stories Press. You can order it and find out when tour will be in your town by visiting davidswanson.org/book.

Of course, it’s almost taboo among the most serious peace and justice advocates to cite positive precedents from Jefferson, because he was a slave owner. But Jefferson’s views on the structure of a government don’t actually become less admirable (or more) when we remember the horrors he inflicted on the people at Monticello.

On the other hand, protesting someone like John Yoo (a march and rally are planned) is almost verboten among the comfortable liberals in Charlottesville, because of a Jeffersonian view of free speech as absolutist as the ACLU’s defense of campaign bribery. “We are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it,” quoth Jefferson.

Yet this admirable line of thought came from the same enlightenment that gave us this one: “Man will never be free until the last king is strangled with the entrails of the last priest.” In fact, the author of the Declaration of Independence, that lengthy list of crimes committed by King George, would not have approved of the College of William and Mary inviting the King to lecture on law. Jefferson and his fellow revolutionaries would have sought to kill or imprison such a lecturer. Translated into an age of nonviolence, they would have PROTESTED him.

John Yoo’s book “Crisis and Command” discusses Jefferson at length and devotes a chapter to his presidency. Yoo finds much to lament in Jefferson’s opposition to expanded presidential power, and much to praise in Jefferson’s expansions and abuses. I would reverse Yoo’s attitudes, praising what he laments and denouncing what he praises. But I don’t argue with his basic outline of the facts of the matter. I argue with the further expansions Yoo assisted in during his employment at the Justice Department, expansions that went far beyond those of Jefferson and did so in violation of a body of laws and treaties that did not exist in Jefferson’s day.

Jefferson thought a president should only veto a bill if he believed it to be unconstitutional. Today presidents routinely veto bills they simply disagree with. Or they alter bills with signing statements or with memos drafted by people like John Yoo. Or they simply violate the law. While Jefferson did not casually veto or alter laws with signing statements or memos, he did choose to simply not enforce laws based on his interpretation of their unconstitutionality. He claimed equal power with the Supreme Court in making such interpretation, something presidents since him — including Bush — have not tended to assert.

Jefferson favored the frequent use of impeachment, but not purely to protect the legislative branch, rather to advance the interests of a political party led by a president. Jefferson refused to comply with a court subpoena. He launched military operations without Congress, including covertly. In some cases he took unconstitutional actions while Congress was not in session, a situation that does actually provide him with an excuse that presidents don’t have today. In other cases, Jefferson simply acted outside the constitution, claiming to represent the will of the nation. The action Yoo seems to admire most for its brazen lawlessness is Jefferson’s purchase of Louisiana. But Yoo also seems to recognize the immense impact Jefferson had in developing a two-party system and the notion of a president possessing a national policy mandate.

Yet Jefferson was no Dick Cheney. Claiming to act, and plausibly acting, on behalf of majority opinion (or majority wealthy white male opinion) is — at least in retrospect — a dangerous precedent for an official who was supposed to execute the will of Congress. But the Bush-Cheney White House claimed the power to act without even a pretense of acting on behalf of the nation’s people. They were acting simply on behalf of Bush and Cheney. Jefferson worked to limit or avoid a standing military.

He acquired territory by purchasing it. Yoo praises Jefferson for purchasing Louisiana because it was an act of presidential assertiveness. And Yoo blames President James Madison for allowing Congress to lead him into a disastrous invasion of Canada, because Madison was following Congress, just as the Constitution he’d played a central role in writing required him to do. What Yoo misses is that negotiations tend to work and wars tend to be catastrophes no matter who makes the decisions. In comparison with Bush and Cheney, Jefferson was an opponent of the greatest evil there is: war. The Congressional Research Service just released a list of hundreds of overt U.S. military actions. Most of them have been launched by presidents. Most of them have been murderous and criminal catastrophes.

Yoo wrote memos that were treated as secret laws by a president. His memos authorized aggressive war and torture, which have been banned by international treaty and domestic laws since Jefferson’s day. Jefferson honored treaties. Yoo does not. Jefferson made exceptions to his adherence to laws. Yoo proclaims presidential liberty to openly ignore all laws. Yoo has famously gone so far as to argue that a president can crush testicles, massacre villages, or nuke cities. Nuclear weapons and most other weapons of war did not, of course, exist when Jefferson went after pirates without congressional authorization. The level of destruction in war was as small then as the body of law restricting it. Yoo lives in an age of far more evil wars, yet allows no limits on presidential war making. A president could nuke city after city until none remained, according to John Yoo’s theories, which I find it very hard to imagine Jefferson accepting or even hypocritically acting upon.

When pressed, Yoo recognizes the power of Congress to stop a president through defunding or impeachment. But Yoo has never, to my knowledge, opposed Bush’s unconstitutional spending of funds for uses other than those for which they were appropriated. And crimes and abuses must be crimes and abuses even prior to an impeachment and conviction. The partisan system developed during Jefferson’s presidential election makes presidential impeachments very unlikely. In fact, they are only possible when the Congress is controlled by the other party and that other party has not become complicit in the president’s crimes or abuses. The same Justice Department that Yoo worked for argued that a president can violate a law until the Supreme Court says otherwise, even though the Supreme Court cannot possibly rule in a timely manner on every law passed by Congress, and even though the Supreme Court is also corrupted by the party system.

While Jefferson advanced the shift of power from Congress to the White House, not to mention that he owned slaves and held every power over them that the United States military holds over prisoners in Bagram, there is only one thing that it is clear to me Jefferson would have done upon learning that John Yoo had been invited to speak at the University of Virginia. Jefferson would have demanded the resignation of the university president.

David Swanson is co-founder of AfterDowningStreet.org and author of the new book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union by Seven Stories Press. You can order it and find out when tour will be in your town by visiting davidswanson.org/book.

This report was originally published on Truthout.org and is being republished here under a Creative Commons license.

The Department of Justice has not yet finished an internal review of the report prepared by an agency watchdog that probed several legal opinions John Yoo and two other former attorneys who worked at the DOJ’s Office of Legal Counsel (OLC) wrote for the Bush White House on torture, an agency spokeswoman said Wednesday.

“The [review] process is ongoing and we hope to have [the report] complete and released soon,” Justice Department spokeswoman Tracy Schmaler told Truthout.

The Office of Professional Responsibility (OPR) completed the report in December 2008 following a five-year investigation.

Adding to the delay in releasing the report (Attorney General Eric Holder testified before Congress last year that the report was complete and was expected be released by end of November), according to several legal sources knowledgeable about the review process, were additional responses to its conclusions that Yoo filed via his attorney, Miguel Estrada. The legal sources spoke on the condition of anonymity because the report is still classified.

If that’s true, the career prosecutor charged with reviewing the report would have to carefully review Yoo’s responses and, as Holder testified last November, “react to those responses” as well.

Estrada told Truthout he was bound by a confidentiality agreement he entered into with the Justice Department and could not comment on the claims that he submitted another set of responses on behalf of Yoo.

Schmaler said she could not comment on the rumors. But she pointed to the Office of Professional Responsibility’s “post investigation” guidelines, which details the process that takes place during the course of such investigations.

The big question is will the report be released on or before January 15?

That’s the date lawyers representing alleged “dirty bomb” plotter Jose Padilla are due to file a response to the government’s friend-of-the-court-brief, which recommended that a lawsuit Padilla filed aginst Yoo over the legal advice he gave to the Bush White House that resulted in Padilla being tortured be tossed out because the OPR report would address the issue that Yoo provided the White House with poor legal advice.

“In addition to potential discipline by a state bar, Department of Justice attorneys are also subject to investigation by the Office of Professional Responsibility (“OPR”)… OPR and the Office of the Inspector General have broad investigatory powers and can recommend discipline and even criminal prosecution, where appropriate, the government’s December 3, court filing states.

As blogger Marcy Wheeler pointed out earlier this week, “At the rate we’re going, Padilla’s lawyers will have to file their response to the boast that OPR can offer adequate discipline in cases like this, without yet learning what OPR did in this particular case.”

Believing that the report is being suppressed, a coalition of attorneys, journalists and activists to file a Freedom of Information Act request Thursday with the Justice Department to obtain a copy of the report and other documents.

Upcoming Hearings on Torture?

In an interview last month, Christopher Anders, the ACLU’s senior legislative counsel, said Senate Judiciary Committee Chairman Patrick Leahy and his counterpart in the House, John Conyers, have both said they intend to hold hearings next year when the OPR report is released.

Leahy and Conyers “said a number of times that they would have hearings when the OPR report comes out,” Anders told me. “It would be a big surprise if they didn’t conduct hearings. We fully expect them to hold hearings.”

Erica Cabot, a spokeswoman for Leahy, said it would be premature to discuss any plans for possible future hearings until the report is released.

“Adverse Findings”

The Justice Department was prepared to publicly release the report last January. But it underwent revisions after then-Attorney General Michael Mukasey and his deputy, Mark Filip, demanded that Yoo, Bybee and Bradbury be given the chance to review and respond to the findings.

“In the past, former Department employees who were subjects of OPR investigations typically have been permitted to appeal adverse OPR findings to the Deputy Attorney General’s Office,” said Assistant Attorney General Ronald Weich’s May 4, 2008 letter to Democratic Senators Dick Durbin and Sheldon Whitehouse. “A senior career official usually conducted that appeal by reviewing submissions from the subjects and OPR’s reply to those submissions, and then reaching a decision on the merits of the appeal. Under this ordinary procedure, the career official’s decision on the merits was final. This appeal procedure was typically completed before the Department determined whether to disclose the Report of Investigation to the former employees’ state bar disciplinary authorities or to anyone else.”

Legal sources familiar with an early draft of the report said it concluded that some of Yoo and Bybee’s legal work for the Bush White House rose to the level of professional misconduct and therefore warranted a disciplinary referral state bar officials. These sources said they were unaware whether OPR reached the same conclusions about Bradbury’s legal work.

Weich’s letter noted that if the appeals filed by Yoo, Bybee and Bradbury resulted in a rejection of OPR’s findings by the “career official” reviewing the document then no such referral would occur.

“Department policy usually requires referral of OPR’s misconduct findings to the subject’s state bar disciplinary authority, but if the appeal resulted in a rejection of OPR’s misconduct findings, then no referral was made,” Weich’s letter said. “This process afforded former employees roughly the same opportunity to contest OPR’s findings that current employees were afforded through the disciplinary process.”

Weich added that the initial draft of the report was also shared with the CIA for a “classification review,” and the agency, having reviewed the findings, “requested an opportunity to provide substantive comment on the report.”

Durbin and Whitehouse, in a statement last May, said they “will be interested in the scope of the ‘substantive comment’ the CIA is providing, and the reasons why an outside agency would have such comment on an internal disciplinary matter.”

A CIA spokesperson did not return calls for comment about the agency’s response to the report.

Weich’s letter to Durbin and Whitehouse was sent in response to queries by the senators last March about revelations that Bradbury oversaw OLC’s review of the report in late 2008, despite the fact that he was a subject of OPR’s investigation and was also acting head of OLC at the time.

Three months before Bush exited the White House, Bradbury, in a “memorandum for the files,” renounced several legal opinions drafted by Yoo and Bybee.

Bradbury attempted to justify or forgive Yoo’s controversial opinion by explaining that it was “the product of an extraordinary period in the history of the Nation: the immediate aftermath of the attacks of 9/11.”

Bradbury wrote another memo five days before Bush left office last January, in which he once again repudiated Yoo’s legal opinions. It would appear that this memo was in response to the OPR report. Bradbury said in the Jan. 15 memo that the flawed theories by Yoo in no way should be interpreted to mean that Justice Department lawyers did not “satisfy” professional standards.

Durbin and Whitehouse said they believed Bradbury’s “memorandum for the files” made it a “conflict-of-interest” for him to participate in the formal review process.

But Weich said, “Because Mr. Bradbury’s participation in that process was transparent, OPR advised that it can evaluate the OLC response with the knowledge of Mr. Bradbury’s participation just as it would evaluate a response from anyone whose actions were within the scope of OPR’s investigation.

“Therefore, OPR does not believe that Mr. Bradbury’s participation in the OLC response was improper,” Weich said.

Rather, Bradbury wrote, “In the wake of the atrocities of 9/11, when policy makers, fearing that additional catastrophic terrorist attacks were imminent, strived to employ all lawful means to protect the Nation.”

An American guard walks along the exterior of a camp for Chinese Uighur detainees at the U.S. military prison in Guantanamo Bay, Cuba. (John Moore/Getty Images)

This story was reported by ProPublica’s Dafna Linzer

Much has occurred today with regards to Guantanamo Bay and many decisions are yet to come.

But there is another milestone worthy of note: Today marks the eighth anniversary of the creation of the legal foundation for the prison and the second-tier justice system established to try terrorism suspects there.

On Nov. 13, 2001, President George W. Bush signed what has become known as Military Order No. 1 in what he termed a Global War on Terrorism. Without informing his national security adviser, his secretary of state, his chief of staff or his communications director, Bush approved what would appear three days later in the Federal Register as: “Military Order of November 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.”

The few people inside the former administration who knew about the order were instrumental in its creation, including former Vice President Dick Cheney, his lawyer David Addington, former Secretary of Defense Donald Rumsfeld, former Attorney General John Ashcroft and a young, and then unknown, lawyer inside the Justice Department named John Yoo.

The order created a separate track of justice for any foreign citizen picked up on a global battlefield with the Pentagon serving as jailer, prosecutor and judge.

The findings, drafted in secret, also laid the way for many of the asserted war powers that the Bush administration later relied on.

“It was a foundational building block of the war on terror’s legal architecture,” said Matthew Waxman, a professor at Columbia Law School who worked on detainee issues during the Bush administration.

But those blocks began to crumble — under legal challenge, political opposition and global outrage over a prison that President Obama would come to describe as a stain on America’s “moral authority.”

Detainees began arriving in Guantanamo two months after Bush signed the order and almost immediately world leaders lined up to condemn the facility. In a landmark 2006 ruling, the Supreme Court ruled that the military commission system that had been in place for Guantanamo Bay violated U.S. and international law, and that the Geneva Conventions applied to the detainees.

Detainees now have rights to challenge their detention and the military commissions have been revamped.

All told, since Military Order No. 1 came into effect, the prison at Guantanamo has ballooned in size and notoriety. Nearly 800 detainees have been housed there. Six have died there; more than 500 have gone home. More than 200 are still there, in limbo.

So, when I read that the Georgetown University law school prof had a new book out, I quickly got my copy. I wasn’t disappointed, and you won’t be either.

Cole’s new book is two things: First, a collection of six of the previously-published “torture memos” written between 2002 and 2006 by lawyers at the Bush-era Office of Legal Counsel. Yes, the ones that used law to justify the “enhanced interrogation techniques” now so well known. And, second, Cole’s commentary on this distortion of the law and its implications for our society

This book is a must-read for the latter alone. In chillingly uncomplicated prose, Cole argues that these memos are the real “smoking gun” in the torture controversy because they demonstrate that the culpability lies not merely with the CIA interrogators who may have exceeded Justice Department legal guidance, but with the legal guidance itself – the “incredible arguments advanced to give them a green light.”

As we all now know, that sloppy and craven legal analysis  contorted the law to authorize clearly illegal CIA tactics. And it continued to do so in secret even after the Bush Administration sought to assure the public that it was abiding by the very laws it was breaking.

Yet, at about the same time as the torture memos were being published – and the nation prepared to mark the eighth anniversary of the 9/11 attacks –those who ordered and wrote these memos were busily defending themselves.

Or, more accurately perhaps, using the straw-man of an investigation of the CIA to deflect attention away from their conduct.

Exhibit A is John Yoo, now a law professor at the University of California’s law school, who was the Bush Administration’s go-to guy for legal justifications. In a recent op-ed, Yoo warns us about the dire consequences that await the nation as the Justice Department pursues its investigation of CIA operatives.

Yoo invokes Jimmy Carter, who he describes as “a young fresh face” campaigning for the presidency by attacking the CIA: “Our government should justify the character and moral principles of the American people, and our foreign policy should not short-circuit that for temporary advantage,” Carter says. He promises to never “do anything as president that would be a contravention of the moral and ethical standards that I would exemplify in my own life as an individual.”

“He wins the election and begins to decimate the intelligence agencies,” Yoo writes, and then recalls, “The Carter administration’s national-security record should not serve as a model for any president. But unless Obama changes course, he risks duplicating the intelligence disasters of the ’70s, and endangering the nation.”

Yoo reminds us that several of the detainees the CIA tortured “were directly involved with the planning and execution of the attacks on Sept. 11, 2001. They were captured at a time when our government feared a second wave of attacks.”

“Our nation’s leaders made the difficult decision to use coercive interrogation methods to learn as quickly as possible what these hardened al-Qaida operatives knew,” he writes, adding:

“As one of many government lawyers who worked on these counterterrorism programs, I can attest to the terrible pressure of time and events in the months after the Sept. 11 attacks. Knowledgeable officials expected that al-Qaida would try again — soon — and in a more devastating fashion.”

And, then, in true Dick Cheney mode, he admonishes: “As we pause to remember the Sept. 11 attacks eight years later, fair-minded people should take heart that there has been no follow-up attack in the United States. To the contrary, several plots have been foiled and the terrorists are on the run. This was not the result of luck — it is because of the hard work of members of the military and our intelligence agencies.”

“Their reward,” he laments, “is an open-ended investigation, and in some instances the disturbing reopening of cases closed by career prosecutors.”

“Even the most fervent antiwar activists should welcome an effective intelligence service. If the CIA had accurately judged Iraq’s lack of WMD in 2003, the war might not have occurred. If the CIA had decapitated al-Qaida’s leadership in the 1990s (the plans were vetoed by President Bill Clinton), the 9/11 attacks may have been headed off and the invasion of Afghanistan rendered unnecessary,” he writes.

“Persecuting the CIA risks another (Pearl Harbor) or major intelligence failure,” Yoo concludes.

But, hold on now, this is not about an investigation of the CIA. That’s John Yoo’s smoke-screen. This is about a bunch of highly-educated but ideologically-challenged lawyers who exploited our post-9/11 hysteria to try to rewrite the Constitution.

Paradoxically, it is precisely during times of such hysteria that we most urgently need the Constitution and its principles of fairness and equity. Resisting – not caving to — the temptation to compromise those principles would have been the benchmark for discovering those who truly believe.

I first came across David Cole several years ago, when he was doing a lot of advocating on behalf of donors to Muslim-oriented charities whose organizations were shut down by our Treasury Department with virtually no legal due process on vaguely-defined suspicions that they were supporting terrorist causes.

Cole likened that situation to the guilt-by-association tactics of the McCarthy era. He never weighed in on the guilt or innocence of those charities. But he was downright bulldoggish in his insistence that this was precisely the time we should apply the rule of law – not the law of the Wild, Wild, West soundbite. A position the Obama Administration has now also embraced.

For me, that defines a lawyer’s lawyer. For our country, it defines the future of our Constitution and the sacred legal structures that keep us from flying apart.

John Yoo is far from any lawyer’s lawyer.

William Fisher is a regular contributor to The Public Record. He has managed economic development programs for the U.S. State Department and the U.S. Agency for International Development in the Middle East, Latin America and elsewhere for the past 25 years and served in the administration of President John F. Kennedy. He reports on a wide-range of issues for numerous domestic and international newspapers and online journals. He blogs at The World According to Bill Fisher.

Judge Baltasar Garzón

The Spanish newspaper Público reported exclusively on Saturday that Judge Baltasar Garzón, who sits on the Criminal Court of Spain, is pressing ahead with a case against six senior Bush administration lawyers for implementing torture at Guantánamo.

Back in March, Judge Garzón announced that he was planning to investigate the six prime architects of the Bush administration’s torture policies — former Attorney General Alberto Gonzales; John Yoo, a former lawyer in the Justice Department’s Office of Legal Counsel, who played a major role in the preparation of the OLC’s notorious “torture memos”; Douglas Feith, the former undersecretary of defense for policy; William J. Haynes II, the Defense Department’s former general counsel; Jay S. Bybee, Yoo’s superior in the OLC, who signed off on the August 2002 “torture memos”; and David Addington, former Vice President Dick Cheney’s Chief of Staff.

In April, on the advice of the Spanish Attorney General Cándido Conde-Pumpido, who believes that an American tribunal should judge the case (or dismiss it) before a Spanish court even thinks about becoming involved, prosecutors recommended that Judge Garzón should drop his investigation. As CNN reported, Mr. Conde-Pumpido told reporters that Judge Garzón’s plans threatened to turn the court “into a toy in the hands of people who are trying to do a political action.”

On Saturday, however, Público reported that Judge Garzón had accepted a lawsuit presented by a number of Spanish organizations — the Asociación Pro Dignidad de los Presos y Presas de España (Organization for the Dignity of Spanish Prisoners), Asociación Libre de Abogados (Free Lawyers Association), the Asociación Pro Derechos Humanos de España (Association for Human Rights in Spain) and Izquierda Unida (a left-wing political party) — and three former Guantánamo prisoners (the British residents Jamil El-Banna and Omar Deghayes, and Sami El-Laithi, an Egyptian freed in 2005, who was paralyzed during an incident involving guards at Guantánamo). The newspaper reported that all these groups and individuals would take part in any trial.

It is, at present, uncertain whether another attempt to stifle Judge Garzón will derail him, as he is not known for letting adversaries stand in his way. At the end of June, the Spanish Parliament pointedly passed legislation aimed at “ending the practice of letting its magistrates seek war-crime indictments against officials from any foreign country, including the United States,” on the basis that no Spanish Court should be able to judge officials of foreign countries except when the victims are Spanish or the crimes were committed in Spain.

However, on Sunday, when Público spoke to Philippe Sands, the British lawyer, and author of Torture Team, which provided much of the first-hand evidence for Garzón’s case, Sands explicitly stated that there was “no legal barrier” to prevent Judge Garzón’s prosecution from proceeding. He explained that he believed the recent decision by US Attorney General Eric Holder to appoint a special investigator to investigate cases of torture by the CIA is related to the Spanish lawsuit and the importance it has acquired because of its instigation by Judge Garzón. Sands told Público, “The recent decision by Eric Holder emphasizes how appropriate the Spanish investigation is. Many commentators believe that this decision has had a significant and direct impact in the United States, reminding people that there is an obligation to investigate torture.”

He added, “Judge Garzón’s actions have acted like a catalyst, and are supported by many people in the United States, including some members of Congress. He has reminded everybody that a blind eye cannot be turned to these actions and that there are people who are not going to let that happen.” He also explained that Eric Holder’s gesture is only a first step, “limited to cases in which interrogators may have exceeded the limits formally approved by lawyers in the Justice Department’s Office of Legal Counsel,” that the architects of the “legal decisions that purported to justify the use of torture are not in immediate danger in the United States,” and that there is, therefore, “no legal barrier to the continuation of the Spanish investigation.”

He concluded by stating that it was “important” that Judge Garzón proceeds with the case in Spain, because, although Eric Holder “has confirmed the importance of the Convention Against Torture, he has taken only a first step that “does not really address the actions of those who were truly responsible for its violation.”

Note: I wish to extend my thanks to Carlos Sardiña Galache for alerting me to the latest developments in this important story, which was not mentioned in the English-speaking press, and for translating crucial passages.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to Mr. Worthington’s RSS feed, and also see his definitive Guantánamo prisoner list, published in March 2009.