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Reply #6: They did it before the lawyers memo's! [View All]

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flyarm Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Apr-18-09 10:00 AM
Response to Original message
6. They did it before the lawyers memo's!
We know from the ICRC report this technique had been used, three years before Bradbury wrote his OLC memos, with Abu Zubaydah.

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Scott Horton on Democracy Now! today:

Theres a very strange factual issue here. President Obama says that we shouldnt prosecute them because they relied on these memos. But a factual review is going to show that the CIA was using these techniques from April 2002, and these memos were commissioned and written, the first of them, in August of 2002. So its quite clear in fact that CIA agents were out in the field doing these things, not relying on these memos, with the memos not even being in contemplation.

There is no statue of limitations on murder..and some of these interrogators committed murder..or Homicide whatever way you want to frame it!


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See Scott Horton's April 10 article at Harper's online He referenced the Army's investigation into the death and the finding that the death was a murder. They turned the investigation over to the DOJ for prosecution in 2004 and to this day, no one has been tried for the crime.


April 10, 8:43 AM
Licensed to Kill

Yesterday CIA Director Leon Panetta emailed thousands of subordinates his hearty greetings for Passover and Easter. Appropriate to the season, perhaps, his message was filled with talk of torture, foreign captivity, and doubtful acts of contrition. CIA officers do not tolerate, and will continue to promptly report, any inappropriate behavior or allegations of abuse, he wrote. And this rule was not to be evaded by proxies, either: That holds true whether a suspect is in the custody of an American partner or a foreign liaison service.

He also spoke about the decommissioning of the system of black sites constructed in the Bush era to hold prisoners outside of any form of accountability. I have directed our Agency personnel to take charge of the decommissioning process, he wrote. It is estimated that our taking over site security will result in savings of up to $4 million. Some of these black sites are now the subject of criminal investigations seeking to ascertain whether crimes were committed there. One wonders what sort of care Panettas agents will take to preserve evidence of what transpired there, and what the criminal investigators think about the CIA taking charge of the process.

Panetta also provided assurances that No CIA contractors will conduct interrogations. Many of the most serious cases of abuse of prisoners involve CIA contractors. I am aware of a single case in which a CIA contractor was actually prosecuted. Remember Abu Ghraib? The Defense Departments investigation concluded that the most serious offenses against detainees there were committed by contractors. As Major General Antonio Taguba noted, several of these individuals had clear-cut and continuing high-level connections to the intelligence community. Some purported to be contractors for the Interior Department, but the facts strongly suggested a relationship to the shop Panetta now heads. This group of contractors were investigated by the military, which turned over a full portfolio of evidence to federal prosecutors in the Eastern District of Virginia, recommending prosecution. What happened? Nothing. In the meantime, however, a group of young NCOs and enlisted personnel who acted under the influence of the contractors were court-martialed. Another demonstration of the Bush Administrations total perversion of our justice system.

Or consider what Congressional Quarterlys Jeff Stein calls The Mysterious Case of Mark Swanner. The Armys Criminal Investigation Detachment studied the death of Manadel al-Jamadi (photo left), who died in Swanners custody, and concluded that he had been murdered. Swanner, a long-time CIA officer, was fingered as the perpetrator, and the case was referred to the U.S. Attorney in the Eastern District of Virginia for prosecution. That was 2004. So five years later, what has happened? Nothing happened.

http://www.harpers.org/subjects/NoComment


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http://www.msnbc.msn.com/id/6988054 /

Reports detail Abu Ghraib prison death; was it torture?
By Seth Hettena

updated 4:57 p.m. ET, Thurs., Feb. 17, 2005
Iraqi had been suspended by his handcuffed wrists, guards tell investigators
SAN DIEGO - An Iraqi whose corpse was photographed with grinning U.S. soldiers at Abu Ghraib died under CIA interrogation while in a position condemned by human rights groups as torture suspended by his wrists, with his hands cuffed behind his back, according to reports reviewed by The Associated Press.

The death of the prisoner, Manadel al-Jamadi, became known last year when the Abu Ghraib scandal broke. The U.S. military said back then that it had been ruled a homicide. But the exact circumstances of the death were not disclosed at the time.

The prisoner died in a position known as Palestinian hanging, the documents reviewed by The AP show. It is unclear whether that position was approved by the Bush administration for use in CIA interrogations.


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America admits suspects died in interrogations

By Andrew Gumbel in Los Angeles


Friday, 7 March 2003

http://www.independent.co.uk/news/world/politics/americ...


American military officials acknowledged yesterday that two prisoners captured in Afghanistan in December had been killed while under interrogation at Bagram air base north of Kabul reviving concerns that the US is resorting to torture in its treatment of Taliban fighters and suspected al-Qa'ida operatives.


American military officials acknowledged yesterday that two prisoners captured in Afghanistan in December had been killed while under interrogation at Bagram air base north of Kabul reviving concerns that the US is resorting to torture in its treatment of Taliban fighters and suspected al-Qa'ida operatives.

A spokesman for the air base confirmed that the official cause of death of the two men was "homicide", contradicting earlier accounts that one had died of a heart attack and the other from a pulmonary embolism.

The men's death certificates, made public earlier this week, showed that one captive, known only as Dilawar, 22, from the Khost region, died from "blunt force injuries to lower extremities complicating coronary artery disease" while another captive, Mullah Habibullah, 30, suffered from blood clot in the lung that was exacerbated by a "blunt force injury".

US officials previously admitted using "stress and duress" on prisoners including sleep deprivation, denial of medication for battle injuries, forcing them to stand or kneel for hours on end with hoods on, subjecting them to loud noises and sudden flashes of light and engaging in culturally humiliating practices such as having them kicked by female officers.

While the US claims this still constitutes "humane" treatment, human rights groups including Amnesty International and Human Rights Watch have denounced it as torture as defined by international treaty. The US has also come under heavy criticism for its reported policy of handing suspects over to countries such as Jordan, Egypt or Morocco, where torture techniques are an established part of the security apparatus. Legally, Human Rights Watch says, there is no distinction between using torture directly and subcontracting it out.




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EDIT TO ADD:
The Eichmann defense has long since been accepted as providing no excuse.
http://emptywheel.firedoglake.com/2009/04/17/the-cia-ig ...

The CIA IG Report and the Bradbury Memos
By: emptywheel Friday April 17, 2009 12:08 pm



In May 2004, CIA's Inspector General, John Helgerson, completed a report that found that the CIA's interrogation program violated the Convention Against Torture. By understanding the role of that report in the March 2005 Bradbury memos, we see just how weak Bradbury's memos are.



As Jane Mayer described, the report strongly influenced Jack Goldsmith shortly before he withdrew the August 1, 2002 Bybee memo in June 2004.

The 2004 Inspector General's report, known as a "special review," was tens of thousands of pages long and as thick as two Manhattan phone books. It contained information, according to one source, that was simply "sickening." The behavior it described, another knowledgeable source said, raised concerns not just about the detainees but also about the Americans who had inflicted the abuse, one of whom seemed to have become frighteningly dehumanized. The source said, "You couldn't read the documents without wondering, "Why didn't someone say, 'Stop!'"

Goldsmith was required to review the report in order to settle a sharp dispute that its findings had provoked between the Inspector General, Helgerson, who was not a lawyer, and the CIA's General Counsel, Scott Muller, who was. After spending months investigating the Agency's interrogation practices, the special review had concluded that the CIA's techniques constituted cruel, inhuman, and degrading treatment, in violation of the international Convention Against Torture. But Muller insisted that every single action taken by the CIA toward its detainees had been declared legal by John Yoo. With Yoo gone, it fell to Goldsmith to figure out exactly what the OLC had given the CIA a green light to do and what, in fact, the CIA had done.

As Goldsmith absorbed the details, the report transformed the antiseptic list of authorized interrogation techniques, which he had previously seen, into a Technicolor horror show. Goldsmith declined to be interviewed about the classified report for legal reasons, but according to those who dealt with him, the report caused him to question the whole program. The CIA interrogations seemed very different when described by participants than they had when approved on a simple menu of options. Goldsmith had been comfortable with the military's approach, but he wasn't at all sure whether the CIA's tactics were legal. Waterboarding, in particular, sounded quick and relatively harmless in theory. But according to someone familiar with the report, the way it had been actually used was "horrible."


SNIP:
Yet in arguing against the IG Report, Bradbury reveals much of what the IG Report finds so problematic. It reveals:

CIA interrogators were not performing waterboarding as it had been approved in the August 2002 Bybee Memo; in particular, they were repeating the process more frequently (90 times for AZ and 183 for KSM) and using much more water than described in the Bybee Memo
By CIA's own admission, they used waterboarding with Abu Zubaydah at a time when he was already completely compliant with interrogators
No "objective" doctors had been involved in the interrogation sessions (the CIA subsequently added them to its program)
It appears that after the CIA integrated doctors into the program, they lowered, by three and a half days, the length of time a detainee could be kept awake


SNIP:

In other words, the Bradbury memos basically prove that waterboarding, as practiced by the CIA (as distinct from how they were describing it), was out of control in several ways (and therefore probably illegal even according to Yoo's descriptions). They also suggest that the CIA recognized they were using sleep deprivation far more than was safe, even according to their own complicit doctors. Both of the most problematic aspect of the CIA program, the Bradbury memos suggest, had been deemed unsafe as practiced.

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As someone else has pointed outthere is no rule of law when laws are selectively enforced only when it is to the advantage of tortures. Article 2 of Geneva is very clearthere is no excuse, none, for torturing anyone who falls under the jurisdiction of a signatoryunder any circumstance. There are no excuses under Geneva.

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Nuremberg Defense

The Nuremberg Defense is a legal defense that essentially states that the defendant was "only following orders" ("Befehl ist Befehl", literally "order is order") and is therefore not responsible for his crimes. The defense was most famously employed during the Nuremberg Trials, after which it is named.

Before the end of World War II, the Allies suspected such a defense might be employed, and issued the London Charter of the International Military Tribunal (IMT), which specifically stated that this was not a valid defense against charges of war crimes.

Thus, under Nuremberg Principle IV, "defense of superior orders" is not a defense for war crimes, although it might influence a sentencing authority to lessen the penalty. Nuremberg Principle IV states:

"The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."

The United States military adjusted the Uniform Code of Military Justice after World War II. They included a rule nullifying this defense, essentially stating that American military personnel are allowed to refuse unlawful orders. This defense is still used often, however, reasoning that an unlawful order presents a dilemma from which there is no legal escape. One who refuses an unlawful order will still probably be jailed for refusing orders (and in some countries probably killed and then his superior officer will simply carry out the order for him or order another soldier to do it), and one who accepts one will probably be jailed for committing unlawful acts, in a Catch-22 dilemma.

All US military personnel are supposed to receive annual training in the Law of Armed Conflict, which delineates lawful and unlawful behaviors during armed conflicts, and is derived from the Geneva Conventions, a subset of international law. This training is designed to ensure that US military personnel are familiar with their military, ethical and legal obligations during wartime but proof of military personnel receiving this training is difficult to substantiate and is often not received.


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