U.S. Officials who authorized and sanctioned brutal torture Exonerated by Obama Administration- Double Standards?

The Obama administration’s Justice Department ‘clearing’ or exonerating two Bush administration officials who wrote legal memoranda to the Bush White House authorizing and sanctioning brutal interrogation techniques is a one month old story.

This Online Daily did not carry this breaking story but decided to give the whole story of United States’ moral retreat when the State Department in its annual human rights report sat on judgment on other nation’s human rights practices.

The exoneration of the two Justice Department officials was announced on February 19; the State Department Country Reports on Human Rights Practices were released March 11.

The exoneration of the Bush administration lawyers whose secret memos justified waterboarding and other forms of torture by CIA interrogators took the outside world startled when candidate Barack Obama had pledged to reverse the trend of the Bush administration which violated national and international laws and covenants that prohibited degrading treatment of ‘enemy combatants’ or foreign prisoners under its custody.

The Obama White House has explicitly defended the Bush administration policies of indefinite detention, extraordinary rendition and military tribunals.

The ethics report of the Office of Professional Responsibility (OPR) in the U.S. Justice Department said that John C. Yoo, and Jay S. Bybee, authors of the August 2002 and March 2003 “torture memos,” had used “poor judgment” and flawed legal reasoning. However, the report concluded they were not guilty of “professional misconduct” and would face no sanctions. Yoo and Bybee worked in the Justice Department’s Office of Legal Counsel (OLC), advising the White House.

Yoo is now a law professor at University of California Berkeley and Bybee is a 9th Circuit Appeals Court judge.

As Yoo and Bybee walk free, the Obama administration is also blocking the prosecution of those at the highest levels of the Bush administration who authorized and sanctioned brutal torture methods in violation of international law.

In the OPR report, Yoo was found to have "committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice" in five legal memoranda he prepared for the Bush administration.

Bybee was found to have "committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice" in two legal memoranda he signed.

Karl Rove, former senior political adviser to President George W. Bush, says he is "proud" the U.S. used waterboarding to gain information from terror suspects.

"I'm proud that we used techniques that broke the will of these terrorists," he said in a BBC interview March 12 adding that he did not consider waterboarding to be torture.

The practice, considered by many to violate the terms of the Geneva Convention on the conduct of war, was sanctioned in a series of memos by the White House lawyers in 2002 who were exonerated by the Obama Justice Department. It involves pouring water into a captive's breathing passages, simulating a sensation of drowning.

The John Yoo/Bybee memos laid the groundwork for the torture of an unknown numbers of prisoners captured in the wars in Iraq and Afghanistan and held at US secret prison sites around the world. In additional to waterboarding, “enhanced interrogation techniques” have included threats of death, sleep deprivation, extreme variations of light, temperature and sound, and the use of psychotropic drugs.

The Asian Tribune quotes below how the Obama administration’s State Department report released March 11 (2010) Country Reports on Human Rights Practices sit on judgment editorializing what happened in Sri Lanka.

Under the sub-title Torture and Other Cruel, Inhuman, or degrading Treatment or Punishment the report says:

(Begin Quote): The law makes torture a punishable offense and mandates a sentence of not less than seven years' imprisonment. Human rights groups alleged that some security forces believed torture to be allowed under specific circumstances. Following a 2007 visit, UN Special Rapporteur (UNSR) on Torture Manfred Nowak concluded that "torture is widely practiced in Sri Lanka." No accurate, publicly released statistics on reported torture cases were available.

Civil society groups and former prisoners reported on several torture cases. For example, former detainees of the Terrorist Investigation Division (TID) at Boosa Prison in Galle confirmed earlier reports of torture methods used there. These included beatings, often with cricket bats, iron bars, or rubber hoses filled with sand; electric shock; suspending individuals by the wrists or feet in contorted positions, abrading knees across rough cement; burning with metal objects and cigarettes; genital abuse; blows to the ears; asphyxiation with plastic bags containing chili pepper mixed with gasoline; and near drowning. Detainees reported broken bones and other serious injuries as a result of their mistreatment.

“In the east and conflict-affected north, military intelligence and other security personnel, sometimes working with armed paramilitaries, carried out documented and undocumented detentions of civilians suspected of LTTE connections. The detentions reportedly were followed by interrogations that frequently included torture. There were cases reported of detainees being released with a warning not to reveal information about their arrests and threatened with rarest or death if they divulged information about their detention. There were also reports of secret government facilities where suspected LTTE sympathizers were taken, tortured, and often killed.” (End Quote)

In the report issued February 19, David Margolis, assistant deputy attorney general and a career lawyer at the Justice Department, rejected the conclusions of an earlier report issued by the OPR, which had concluded that Yoo and Bybee had demonstrated “professional misconduct” and provided legal advice on torture to the White House in possible violation of international and federal laws on torture. The December 2008 report had recommended referral of their cases to state bar associations, which could have revoked their law licenses.

The Obama Justice Department has now determined that the composition of such rationalization of torture and violation of constitutional rights did not even rise to the level of “professional misconduct.”

The memo also argued that the Constitution’s prohibition against “cruel and unusual punishment” does not apply to “alien combatants held abroad” and that US law cannot restrict the interrogation of any “enemy combatant” held by the military, since interrogation is part of the president’s commander in chief powers. Many of the memo’s arguments are further structured to apply to anyone, including American citizens held in the US.

During Jay Bybee’s tenure at the OLC, the CIA requested legal advice on detainee interrogation. That request was routed to the OLC by then White House General Counsel Alberto Gonzalez who desired the "ability to quickly obtain information from captured terrorists and their sponsors." The CIA inquired whether, after the terrorist attack on September 11 (2001), it could aggressively interrogate suspected high-ranking Al-Qaeda members captured outside the United States. In effect, the CIA was asking for an interpretation of the statutory term of "torture" as defined in 18 U.S.C. s.2340.That section implements, in part, the obligations of the United States under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.

The OLC drafted a memo in response to the CIA request. Reportedly, the memo was principally authored by OLC lawyer John Yoo with aid from David Addington, legal counsel to then Vice President Dick Chaney. The memo describes the limitations on the behavior of U.S. government interrogators outside the United States as governed by the United Nations Convention Against Torture. The Convention's provisions are implemented in the United States by 18 U.S.C s. 2340. After surveying the history of 18 USC § 2340, the Convention itself, court decisions regarding the Torture Victims Protection Act (28 U.S.C. s. 1350) and the Commander-in-Chief Powers of the President, the memo concludes that torture is defined as "acts inflicting...severe pain or suffering, whether mental or physical." Physical pain "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Mental pain “must result in significant psychological harm of significant duration, e.g., lasting for months or even years," as well as be the result of one of the specific causes of mental pain contained in 18 USC § 2340, "namely: threats of imminent death; threats of infliction of the kind of pain that would amount to physical torture; infliction of such physical pain as a means of psychological torture; use of drugs or other procedures designed to deeply disrupt the senses, or fundamentally alter an individual's personality; or threatening to do any of these things to a third party."

The memo also concluded that even though an act is "cruel, inhuman, or degrading," it does not necessarily inflict the level of pain that 18 USC § 2340 prohibits, and thus does not subject an interrogator to criminal prosecution. Additionally, it stated that a defense of “necessity or self-defense may justify interrogation methods" that violate 18 USC § 2340.

A second memo signed by Jay Bybee and dated August 1, 2002, entitled "Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency: Interrogation an al Qaeda Operative", was released on April 16, 2009 after years of litigation. It goes into great detail on ten techniques, a number of which have been referred to as torture, and why they are legal to apply to CIA prisoner Abu Zubaydah, who at the time was held in a covert CIA ‘black site". This memo's legal analysis has been repudiated by the new management of the Office of Legal Counsel, which simultaneously promised to defend and indemnify any government employee who ever relied on that advice to commit violations of domestic and/or international law.

The attorney who succeeded Bybee as head of the Office of Legal Council OLC at Justice Department) Jack Goldsmith who revoked the ‘infamous’ memoranda wrote in his book The Terror Presidency: "How could this have happened? How could OLC have written opinions that, when revealed to the world weeks after the Abu Ghraib scandal broke, made it seem as though the administration was giving official sanction to torture, and brought such dishonor on the United States, the Bush administration, the Department of Justice, and the CIA? How could its opinions reflect such bad judgement, be so poorly reasoned, and have such terrible tone? . . . . The main explanation is fear [of a new attack]. Fear explains why OLC pushed the envelope. And in pushing the envelope, OLC took shortcuts in its opinion-writing procedures.”

The Center for Constitutional Rights (CCR), which represents several detainees at Guantanamo and others who were tortured by military and CIA interrogators, called for Bybee to be impeached as a federal judge and for Holder to order a criminal probe headed by a special prosecutor.

CCR said the report makes it "makes it abundantly clear that the decisions about the torture program took place at the highest level, and the damning description of the program further show that the torture memos were written to order by the lawyers from the Office of Legal Counsel who played a key role in creating the program."

Jameel Jaffer, director of the ACLU's National Security Project, which is largely responsible for bringing to light many of the revelations about the torture program described in the report, said, “The OPR report confirms the central role that the Office of Legal Counsel played in developing the Bush administration’s torture program, and it underscores once again that the decision to endorse torture was made by the Bush administration’s most senior officials.”

(Media and agency reports too used in this report)

- Asian Tribune -