The end of the Golden Shield

The NY Times reports on newly leaked emails from within the Department of Justice.

http://www.nytimes.com/2009/06/07/us/politics/07lawyers.html?_r=1&hp

Discussed further by Glenn Greenwald.

http://www.salon.com/opinion/greenwald/2009/06/07/torture_memos/index.html

These leaks further support and strengthen various arguments already made by those calling for accountability, including ourselves --- and of course, the arguments made against other Bush administration officials as well.

In various discussions on Rice's culpability, we have dealt with the possibility that, on trial for war crimes, Rice would point to the "torture memos" for exoneration, as supposedly independent legal advice. In response, we (and the prosecution) would argue that that is not a proper characterization of the facts. We have argued, based on previous revelations, that the memos were written as "get out of jail free" cards. According to reports of National Security Council Principals Committee meetings in 2002, chaired by Rice, the memos were regarded as a "Golden Shield" for officials who feared prosecution. One can even make the case that the relevant lawyers and officials at the Department of Justice were complicit, in a conspiracy to torture.

So, in court, there would be a question to establish which narrative is accurate:

(1) Rice and others request disinterested legal advice; legal advice allows waterboarding etc. In this case, Rice and others might have a viable defence. After all, they are not lawyers, and deference ought to be accorded to the opinions of qualified lawyers within the government.

(2) Rice and others want to perform, have performed, waterboarding etc but need their "golden shield" of legal advice. They want, perhaps expect, administration lawyers in the department of justice to provide all necessary justifications. They request "get out of jail free" cards, crucially involving waterboarding. Despite the clear legal precedents that waterboarding is torture etc, obedient, perhaps complicit, lawyers provide justification. Where the justification is insufficient or not forthcoming, pressure is applied until the requisite degree of legal backing is given. In this case, the defence is not viable. The legal opinions are not in good faith, or created under pressure/duress, or dishonestly, or in complicity to torture. Rice and others (maybe including lawyers) go to jail.

How could a judge or jury choose between these narratives? There are crucial matters of fact that could help distinguish them.

Plainly, words like "golden shield" in Principals Committee meetings support narrative #2. The fact that waterboarding had happened prior to the memos, also. But clearly, much turns upon the communications between lawyers and the principals like Rice. In this regard, these emails are crucial new pieces of evidence. In particular:

A. Chronology and retrospectivity.

If interrogations happen before the legal justifications, that suggests they were written as retrospective justification. In general, lawyers (and the law) abhor retrospectivity. Lawyers do not like to write retrospective justifications, and if they do, they prefer to write them in general terms. Importantly, these emails reveal that the memos, although written in general terms, were effectively retrospective, and were regarded that way.

B. Evidence of pressure/reluctance.

The details of communications between the principals like Rice, and the lawyers, are crucial. The more reluctant lawyers are to provide these justifications, or disagree with them, the more narrative #1 sounds preposterous. As far as the individual lawyers are concerned, the reluctant ones are less likely to be found complicit, although perhaps the more likely their seniors are. These emails are the incarnation of one lawyer's reluctance and reveal extraordinary pressure from the White House, and policy-makers in general.

I should add that Comey's reluctance appears to be on extremely narrow and legally indefensible grounds; he also seems to neglect the mountain of precedent that waterboarding is torture and so on; he seems to be somewhere between gross dereliction of professional duty and complicity in torture. But the point remains.

These are not petty matters. They are crucial findings of fact which would probably be the central issue in a war crimes prosecution. And I think we have crucial evidence here which demolishes any remaining possibility of viability for the "get out of jail free card" defence for Rice and others.

Jeremy and Reyna on CBS!

Stanford Student Speaks Out On Confronting Rice

http://cbs5.com/politics/condoleezza.rice.confronted.2.999686.html

A follow up to their story from Thursday

Stanford Student Confronts Rice On Interrogations
http://cbs5.com/politics/condoleezza.rice.confronted.2.998771.html

Rice's nonsense on torture

Oh wow, I only got around to watching this video now, and from some of the comments I thought she must have been making some half-convincing arguments... nope!

http://www.youtube.com/watch?v=ijEED_iviTA&feature=channel_page


Well, first we upgrade al Qaeda to tyrants, okay. Then one gets the impression that the US homeland was not attacked in WWII. Those little incidents at Pearl Harbor and on the Aleutian islands are called bombing and occupation, to most people.

Then we are informed that 500,000 deaths in WWII is "no!" Why? Perhaps we should have got the figure correct to the precise soldier?



The problem with the internet is that you can actually find obscure references instantaneously. In this case, the Organization for Security and Cooperation in Europe (OSCE) report on Guantanamo. Turns out, with ten seconds of google:

* the OSCE people were only allowed in on the condition of not actually interviewing any detainees! These same conditions were rejected by other human rights organisations, like Amnesty.

* and, the guy who led the OSCE team, Alain Grignard, with the Belgian federal police, thought detaining prisoners for years with trial was a form of "psychological torture".

http://intelligence-summit.blogspot.com/2006/03/osce-guantanamo-better-than-belgian.html

"Did you know that? Alright, no, well wait a second, if you didn't know that, maybe before you make allegations about Guantanamo, you should read."




But it gets better!

CR: "The ICRC also had access to Guantanamo, and they made no allegations about inerrogations about Guantanamo. What they did say is that they beleived indefinite detention..."

What sort of access did the ICRC have? Does anybody remember? Like, there were some prisoners that were deliberately kept away from the ICRC? And, like, this was such an official policy that it was actually written into the operating manual for the prison, there was an official level given to each prisoner, and the top level were kept away from the ICRC?

In fact, you can read various versions of the manual online.

http://wikileaks.org/wiki/Chaplain,_Red_Cross_Muzzled_at_Gitmo_in_2004

In any case, with its access, the ICRC did write a detailed report, which was leaked recently. Perhaps you might actually like to read what the ICRC *did* have to say.

http://www.nybooks.com/icrc-report.pdf

From the introduction, the very first paragraph:

"The International Committee of the Red Cross (ICRC) has consistently expressed its grave concern over the humanitarian consequences and legal implications of the practice by the United States (US) authorities of holding persons in undisclosed detention in the context of the fight against terrorism. In particular, the ICRC has underscored the risk of ill-treatment, the lack of contact with the outside world as a result of being held incommunicado, the lack of a legal framework, and the direct effect of such treatment and conditions on the persons held in undisclosed detention and on their families."

It's clearly a glowing report, with sections entitled "Suffocation by water", "Prolonged stress standing", "Beatings by use of a collar", "Beating and kicking", "Confinement in a box", "Prolonged nudity", and so on. And clearly none of this involves any allegations about interrogations, surely.

And here is an example of non-allegations about interrogations, from the summary, section 1, page 5:

"as outlined in Section 4 below, and as concluded by this report, the ICRC clearly considers that the allegations of the fourteen [detainees interviewed] include descriptions of treatment and interrogation techniques --- singly or in combination --- that amounted to torture and/or cruel, inhuman or degrading treatment."

Can't you see there are no allegations about interrogation?



And this is fantastic:

CR: "By definition, if it was authorised by the President, it did not violate our obligations under the Convention Against Torture."

I didn't know we had monarchists left in this country!

Hmm, I wonder which article of the Convention has the "President said so" defence? Dang, that could have come in handy for Pinochet's lawyers when he was being extradited for torture under the same convention! Pity he didn't notice that provision, having been President of Chile and all, since by definition anything he authorises doesn't violate the convention!

Rice references in recently released reports

This is reference material. I have gone through the two reports

"OLC Opinions on the CIA Detention and Interrogation Program" , the timeline released by the Senate Intelligence Committee on April 22,
http://intelligence.senate.gov/pdfs/olcopinion.pdf

and

"Inquiry into the Treatment of Detainees in U.S. Custody", the Report of the Senate Armed Services Committee
http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf

and copied the significant references to campus faculty. Some of the text may be a little strange: lifted from PDF by character recognition.

Enjoy. Or not. Much of the substance regarding Rice has been reported, e.g.

"Rice gave early approval for CIA waterboarding, Senate report reveals"
http://www.guardian.co.uk/world/2009/apr/23/condoleezza-rice-cia-waterboarding

but primary source material is very powerful.

References to Rice and NSC Principals Committee in

OLC OPINIONS ON THE CIA DETENTION AND INTERROGATION PROGRAM

RELEASE OF DECLASSIFIED NARRATIVE DESCRIBING
THE DEPARTMENT OF JUSTICE OFFICE OF LEGAL COUNSEL'S OPINIONS ON
THE CIA'S DETENTION AND INTERROGATION PROGRAM

April 22, 2009

pp. 2-4

The capture of Abu Zubaydah and the initiation of the CIA detention and interrogation program

In late March 2002, senior Al-Qa'ida operative Abu Zubaydah was captured. Abu Zubaydah was badly injured during the firefight that brought him into custody. The CIA arranged for his medical care, and, in conjunction with two FBI agents, began interrogating him. At that time, the CIA assessed that Abu Zubaydah had specific information concerning future Al-Qa'ida attacks against the United States.

CIA records indicate that members of the National Security Council (NSC) and other senior Administration officials were briefed on the CIA's detention and interrogation program throughout the course of the program.1 In April 2002, attorneys from the CIA's Office of General Counsel began discussions with the Legal Adviser to the National Security Council and OLC concerning the CIA's proposed interrogation plan for Abu Zubaydah and legal restrictions on that interrogation. CIA records indicate that the Legal Adviser to the National Security Council briefed the National Security Adviser, Deputy National Security Adviser, and Counsel to the President, as well as the Attorney General and the head of the Criminal Division of the Department of Justice.

According to CIA records, because the CIA believed that Abu Zubaydah was withholding imminent threat information during the initial interrogation sessions, attorneys from the CIA's Office of General Counsel met with the Attorney General, the National Security Adviser, the Deputy National Security Adviser, the Legal Adviser to the National Security Council, and the Counsel to the President in mid-May 2002 to discuss the possible use of alternative interrogation methods that differed from the traditional methods used by the U.S. military and intelligence community. At this meeting, the CIA proposed particular alternative interrogation methods, including waterboarding.

The CIA's Office of General Counsel subsequently asked OLC to prepare an opinion about the legality of its proposed techniques. To enable OLC to review the legality of the techniques, the CIA provided OLC with written and oral descriptions of the proposed techniques. The CIA also provided OLC with information about any medical and psychological effects of DoD's Survival, Evasion, Resistance and Escape (SERE) School, which is a military training program during which military personnel receive counter-interrogation training.

On July 13, 2002, according to CIA records, attorneys from the CIA's Office of General Counsel met with the Legal Adviser to the National Security Council, a Deputy Assistant Attorney General from OLC, the head of the Criminal Division of the Department of Justice, the chief of staff to the Director of the Federal Bureau of Investigation, and the Counsel to the President to provide an overview of the proposed interrogation plan for Abu Zubaydah.

On July 17, 2002, according to CIA records, the Director of Central Intelligence (DCI) met with the National Security Adviser, who advised that the CIA could proceed with its proposed interrogation of Abu Zubaydah. This advice, which authorized CIA to proceed as a policy matter, was subject to a determination of legality by OLC.

On July 24, 2002, according to CIA records, OLC orally advised the CIA that the Attorney General had concluded that certain proposed interrogation techniques were lawful and, on July 26, that the use of waterboarding was lawful. OLC issued two written opinions and a letter memorializing those conclusions on August 1, 2002.

pp. 6-9

Events after issuance of August 1, 2002 OLC opinion

According to CIA records, after receiving the legal approval of the Department of Justice and approval from the National Security Adviser, the CIA went forward with the interrogation of Abu Zubaydah and with the interrogation of other high-value Al-Qa'ida detainees who were then in, or later came into, U.S. custody. Waterboarding was used on three detainees: Abu Zubaydah, Abd al-Rahim al-Nashiri, and Khalid Sheikh Muhammad. The application of waterboarding to these detainees occurred during the 2002 and 2003 timeframe.

...

In the spring of 2003, the DCI asked for a reaffirmation of the policies and practices in the interrogation program. In July 2003, according to CIA records, the NSC Principals met to discuss the interrogation techniques employed in the CIA program. According to CIA records, the DCI and the CIA's General Counsel attended a meeting with the Vice President, the National Security Adviser, the Attorney General, the Acting Assistant Attorney General for the Office of Legal Counsel, a Deputy Assistant Attorney General, the Counsel to the President, and the Legal Adviser to the National Security Council to describe the CIA's interrogation techniques, including waterboarding. According to CIA records, at the conclusion of that meeting, the Principals reaffirmed that the CIA program was lawful and reflected administration policy.

According to CIA records, pursuant to a request from the National Security Adviser, the Director of Central Intelligence subsequently briefed the Secretary of State and the Secretary of Defense on the CIA's interrogation techniques on September 16, 2003.

References to Rice and NSC Principals Committee
in

Inquiry into the Treatment of Detainees in U.S. Custody
Report of the
Committee on Armed Services
United States Senate

November 20, 2008
Released 23 April, 2009

p. xv

(U) Mr. Haynes was not the only senior official considering new interrogation techniques for use against detainees. Members ofthe President's Cabinet and other senior officials attended meetings in the White House where specific interrogation techniques were discussed. Secretary of State Condoleezza Rice, who was then the National Security Advisor, said that, "in the spring of 2002, CIA sought policy approval from the National Security Council (NSC) to begin an interrogation program for high-level al-Qaida terrorists." Secretary Rice said that she asked Director of Central Intelligence George Tenet to brief NSC Principals on the program and asked the Attorney General John Ashcroft "personally to review and confirm the legal advice prepared
by the Office of Legal Counsel." She also said that Secretary of Defense Donald Rumsfeld participated in the NSC review ofthe CIA's program.

(U) Asked whether she attended meetings where SERE training was discussed, Secretary Rice stated that she recalled being told that U.S. military personnel were subjected in training to
"certain physical and psychological interrogation techniques." National Security Council (NSC) Legal Advisor, John Bellinger, said that he was present in meetings "at which SERE training was discussed."

p. xx-xxi

(U) NSC Legal Advisor John Bellinger said that, on several occasions, Deputy Assistant
Attorney General Bruce Swartz raised concerns with him about allegations of detainee abuse at
GTMO. Mr. Bellinger said that, in tum, he raised these concerns "on several occasions with DoD officials and was told that the allegations were being investigated by the Naval Criminal Investigative Service." Then-National Security Advisor Condoleezza Rice said that Mr. Bellinger also advised her "on a regular basis regarding concerns and issues relating to DoD detention policies and practices at Guantanamo." She said that as a result she convened a "series of meetings of NSC Principals in 2002 and 2003 to discuss various issues and concerns relating to detainees in the custody ofthe Department of Defense."

(U) Between mid-December 2002 and mid-January 2003, Navy General Counsel Alberto Mora spoke with the DoD General Counsel three times to express his concerns about interrogation techniques at GTMO, at one point telling Mr. Haynes that he thought techniques that had been authorized by the Secretary of Defense "could rise to the level of torture." On January 15, 2003, having received no word that the Secretary's authority would be withdrawn, Mr. Mora went so far as to deliver a draft memo to Mr. Haynes's office memorializing his legal concerns about the techniques. In a subsequent phone call, Mr. Mora told Mr. Haynes he would sign his memo later that day unless he heard definitively that the use of the techniques was suspended. In a meeting that same day, Mr. Haynes told Mr. Mora that the Secretary would rescind the techniques. Secretary Rumsfeld signed a memo rescinding authority for the techniques on January 15, 2003.

(U) That same day, GTMO suspended its use of aggressive techniques on Khatani. While key documents relating to the interrogation remain classified, published accounts indicate that military working dogs had been used against Khatani. He had also been deprived of adequate sleep for weeks on end, stripped naked, subjected to loud music, and made to wear a leash and perform dog tricks. In a June 3, 2004 press briefing, SOUTHCOM Commander General James Hill traced the source oftechniques used on Khatani back to SERE, stating: "The staff at Guantanamo working with behavioral scientists, having gone up to our SERE school and developed a list of techniques which our lawyers decided and looked at, said were OK." General
Hill said "we began to use a few ofthose techniques ... on this individual."

(U) On May 13, 2008, the Pentagon announced in a written statement that the Convening Authority for military commissions "dismissed without prejudice the sworn charges against Mohamed al Khatani." The statement does not indicate the role his treatment may have played in that decision.

p. xxvi

Conclusion 2: Members of the President's Cabinet and other senior officials participated in meetings inside the White House in 2002 and 2003 where specific interrogation techniques were discussed. National Security Council Principals reviewed the CIA's interrogation program during that period.

pp. 16-19

II. Development of New Interrogation Authorities (U)

A. CIA's Interrogation Program and the Interrogation of Abu Zubaydah (U)

(U) Abu Zubaydah was captured by Pakistani and CIA forces on March 28, 2002. According to former CIA Director George Tenet, once Zubaydah was in custody, the CIA "got into holding and interrogating high-value detainees" (HVDs) "in a serious way."uo Then­ National Security Advisor Condoleezza Rice said that "in the spring of 2002, CIA sought policy approval from the National Security Council to begin an interrogationprogram for high-level al­-Qaida terrorists."lll Then-NSC Legal Advisor John Bellinger said that he asked CIA to have the proposed program reviewed by the Department of Justice and that he asked CIA to seek advice not only ~om DoJ's Office of Legal Counsel (OLC) but also from the Criminal Division. 112 Ms. Rice said that she asked Director of Central Intelligence George Tenet to brief NSC Principals on the proposed CIA program and asked Attorney General Ashcroft "personally to review the legality of the proposed program. ll3 She said that all ofthe meetings she attended on the CIA's interrogation program took place at the White House and that she understood that DoJ's legal advice "was being coordinated by Counsel to the President Alberto Gonzales.,,114

(U) According to President Bush, the agency developed an "alternative set" of ,"tough" interrogation techniques, and put them to use on Zubaydah and other HVDs. 115 Though virtually all of the techniques that were used on Zubaydah remain classified, CIA Director Michael Hayden confirmed that waterboarding was used on Zubaydah. 116 Assistant Attorney General for the Office of Legal Counsel (OLC) Steven Bradbury testified before Congress that the "CIA's use ofthe waterboarding procedure was adapted from the SERE training program.,,117 When asked whether she was present for discussions about physical and/or psychological pressures used in SERE training, Secretary Rice recalled "being told that U. S. military personnel were subjected in training to certain physical and psychological interrogation techniques." 118 Mr. Bellinger, the NSC Legal Advisor, stated that he was "present in meetings at which SERE training was discussed.,,119

(U) Public reports have identified a retired U.S. Air Force SERE psychologist, Dr. James Mitchell, as having participated in the CIA's interrogation of Zubaydah. 120 Dr. Mitchell, who retired from the Air Force in 2001, agreed to speak to the Committee about his time at DoD.

[redacted]

(U) An unclassified version of a May 2008 report by the Department of Justice (DoJ) Inspector General (IG) confirmed that FBI agents "initially took the lead in interviewing Zubaydah at the CIA facility," but that "CIA personnel assumed control over the interviews" when they arrived at the facility. 125

[redacted]

(U) The FBI Special Agent told the DoJ Inspector General that he also "raised objections to these techniques to the CIA and told the CIA it was 'borderline torture. ",130 According to the unclassified DoJ Inspector General's report, a second FBI agent present did not have a "'moral objection'" to the techniques and noted that he had "undergone comparable harsh interrogation techniques as part of the U.S. Army Survival, Evasion, Resistance and Escape (SERE) training.,,131

(U) According to the DoJ Inspector General's report, FBI Counterterrorism Assistant Director Pat D' Amuro gave the instruction to both FBI agents to "come home and not participate in the CIA interrogation." The first FBI Special Agent left immediately, but the other FBI agent remained until early June 2002. 133 The report said that around the time of Zubaydah's interrogation, FBI Director Robert Mueller decided that FBI agents would not participate in interrogations involving techniques the FBI did not normally use in the United States, even though the OLC had determined such techniques were legal. 134 Then-National Security Advisor Condoleezza Rice said that she had a "general recollection that FBI had decided not to participate in the CIA interrogations" but "was not aware that FBI personnel objected to
interrogation techniques used or proposed for use with Abu Zubaydah." 135

pp. 31-35

E. The Department ofJustice Changes the Rules (U)

(U) On August 1,2002, less than a week after JPRA sent the DoD General Counsel's Office its memoranda and attachments, the Department of Justice issued two legal opinions signed by then-Assistant Attorney General for the Office of Legal Counsel (OLC) Jay Bybee.

(U) Before drafting the August 1,2002 opinions, Deputy Assistant Attorney General for the OLC John Y 00 had met with Counsel to the President Alberto Gonzales and Counsel to the Vice-President David Addington to discuss the subjects that he intended to address. 224 Then­ National Security Advisor Condoleezza Rice said that she understood that the Department of Justice's legal advice to the CIA "was being coordinated by Counsel to the President Alberto Gonzales.,,225

(U) The first ofthe two August 1,2002 OLC memoranda, known to many as the "First Bybee" memo, presented OLC's narrow interpretation of what constituted torture under U.S. law. The memo stated that the federal anti-torture statute of 1994 prohibited "only extreme acts" and that in order to constitute torture, physical pain would have to be equivalent in intensity to that accompanying "serious physical injury, such as organ failure, impairment of bodily functions or even death.,,226 For mental pain to rise to the level of torture, according to the memo, it would have to result in "si~flcant psychological harm of significant duration, e.g., lasting for months or even years.,,22 The First Bybee memo also found that the federal anti­torture statute may not be applicable to interrogations ordered by the President if he acted pursuant to his Constitutional commander-in-chief powers. Further, the memo argued that even if the federal anti-torture statute could be construed to apply to such interrogations, the defenses of necessity and self-defense could potentially eliminate criminal liability under the statute. 228

(U) The First Bybee memo also effectively dispensed with the "specific intent" requirement of the federal anti-torture statute by narrowly defining that requirement. The federal anti-torture statute states that, in order to constitute torture, an act must be "specifically intended to inflict severe physical or mental pain or suffering.,,229 The First Bybee memo stated that in order "for a defendant to have acted with specific intent, he must expressly intend to achieve the forbidden act.,,230 Under that interpretation, to violate the law, a person must expressly intend to commit torture and the memo stated that "knowledge alone that a particular result is certain to occur does not constitute specific intent."

(U) Jack Goldsmith, who succeeded Jay Bybee as Assistant Attorney General of the OLC
in 2003, described the First Bybee memo's conclusions and their effect:

[V]iolent acts aren't necessarily torture; if you do torture, you probably have a
defense; and even if you don't have a defense, the torture law doesn't apply if you
act under color of presidential authority. CIA interrogators and their supervisors,
under pressure to get information about the next attack, viewed the opinion as a
'golden shield,' as one CIA official later called it, that provided enormous
comfort. 231

(U) The second August 1,2002 OLC legal opinion was also signed by Assistant Attorney General Jay Bybee. 232 According to a declaration made to the United States District Court for
the Southern District ofNew York. by the Information Review Officer for the CIA, the so-called "Second Bybee" memo is an I8-page legal memorandum from the OLC to the Office of General
Counsel of the CIA containing "information relating to the CIA's terrorist detention and interrogation program" and "advice to' the CIA regarding potential interrogation methods." 233 According to the filing, the CIA requested the legal guidance from the Department of Justice. 234 A February 1, 2005 letter from the Justice Department to Senator Arlen Specter, then-Chairman of the Senate Judiciary Committee, stated that the Second Bybee memo gave the CIA "specific advice concerning specific interrogation practices, concluding that they are lawful." 235 And the unclassified report of the Department of Justice Inspector General explained that the opinion analyzed "specific techniques approved for use on Zubaydah includ[ing] waterboarding ... ,,236

[redacted]

John Bellinger, the NSC Legal Adviser, said that he "expressed concern that the proposed CIA interrogation techniques comply with applicable u.s. law, including our international obligations. 238

(U) The Committee has been denied the Second Bybee memo and does not know which specific interrogation practices, other than waterboarding, were analyzed in the memo. A heavily redacted version ofthe Second Bybee memo, released on July 24, 2008, provides no further details about the specific interrogation practices that were analyzed by the OLC. 239 The unredacted sections only make clear that the OLC applied its analysis in the First Bybee memo to a set of (redacted) facts at issue in the Second Bybee memo.240 And while public sources have suggested that the OLC's analysis applied to Zubaydah, then-Deputy Assistant Attorney General John Yoo suggested in recent testimony that it "perhaps" applied to others "similarly situated.,,241

(U) According to Acting CIA General Counsel John Rizzo, the techniques that the OLC analyzed in the Second Bybee memo were provided by his office. In his testimony before the Senate Select Committee on Intelligence, Mr. Rizzo stated that his office was "the vehicle" for getting the interrogation practices analyzed in the Second Bybee memo to the Department of
Justice.,,242

[redacted] Lt Col Baumgartner, the JPRA Chief of Staff, recalled sending a copy of the same information that he had sent to the DoD General Counsel - including the list of SERE techniques and Dr. Ogrisseg's memo on the pS1.;chological effects of Air Force SERE training and on waterboarding -- to [redacted] attorney. 43 Mr. Haynes, the DoD General Counsel, recalled that in the context of reviewing the list of SERE techniques provided to his office, that he may have been "asked that information be given to the Justice Department for something they were working on.,,244

(U) With respect to the issues addressed in Dr. Ogrisseg's memo relating to the psychological effects of resistance training, Mr. Haynes said that he knew that there was a government interest in that subject, but that he did not know if that information was used as support in any OLC legal analysis, and ifhe did know, he did not recall. 245

(U) Then-NSC Legal Advisor John Bellinger said that some of the legal analysis of proposed interrogation techniques prepared by the DeEartment of Justice referred to ''the psychological effects of military resistance training." 46 In fact, Jay Bybee, the Assistant Attorney General who signed the two August 1,2002 opinions, said that he saw an assessment of the psychological effects of military resistance training in July 2002 in meetings in his office with John Y 00 and two other OLC attorneys. Judge Bybee said the assessment - which to the best of his recollection had been provided by the CIA - informed the August 1, 2002 OLC legal opinion that has not been released publicly.247 In his June 26, 2008 testimony before the House Judiciary Committee, John Y00 refused to say whether or not he ever discussed or received information about SERE techniques as the August 1, 2002 memos were being drafted. 248

(U) While Judge Bybee said that he did not recall "any written advice provided to any governmental agency prior to August 1, 2002, on the meaning of the standards of conduct required for interrogation under the federal anti-torture statute or on specific interrogation methods," the August 1,2002 memos were not the only occasion on which DOJ provided legal
advice on the CIA's interrogation program. 249 John Bellinger, the NSC Legal Advisor, said that
he understood that in 2002 and 2003, the OLC provided "ongoing advice to CIA regarding CIA's
interrogation program.,,250 And then-National Security Advisor Condoleezza Rice said that she
was present at "several" meetings in the White House at which Mr. Yoo provided legal advice. 251 Ms. Rice said that she asked Attorney General John Ashcroft "personally to review and confIrm" DoJ's legal guidance. 252

pp. 109-110

E. National Security Council (NSC) Principals Discuss DoD Interrogations

(U) In a June 9, 2008 letter to the DoJ Inspector General, John Bellinger the former NSC Legal Advisor, stated that he "repeatedly asked the Defense Department about conditions and
detention policies at Guantanamo Bay" and that he "specifically raised concerns about interrogations practices used at Guantanamo, including concerns raised by the Department of
Justice. ,,851

(U) Mr. Bellinger told the Committee that Deputy Assistant Attorney General Bruce Swartz raised concerns with him "about allegations of abuse of detainees at Guantanamo.,,852 Mr. Bellinger said that Mr. Swartz called him on "several occasions" to express his concerns and that, in response, he "raised these concerns on several occasions with DoD officials and was told that the allegations were being investigated by the Naval Criminal Investigative Service.,,853 He said that then-National Security Advisor Condoleezza Rice "convened a series of meeting of NSC Principals in order to ensure that concerns about conditions and other issues relating to Guantanamo were fully discussed with the Department of Defense and other agencies.,,854

(U) Secretary Rice confirmed Mr. Bellinger's account, stating that he advised her "on a regular basis" regarding concerns and issues relating to Department of Defense detention policies and practices at Guantanamo. 855 She said that, as a result she "convened a series of meetings of NSC Principals in 2002 and 2003 to discuss various issues and concerns relating to detainees in the custody of the Department ofDefense.,,856

Remarks at dinner

These are my prepared remarks, what I said was some approximation to these.

Hi, I'm Dan. I'm a grad student here in the mathematics department. Thanks for coming.

We are here today because we're concerned.

We're here today to make a peaceful and nonviolent statement that we are deeply concerned about what's going on at this university, and more broadly what's going on in this country and the world.

I would ask everybody here to treat everybody else, including people who disagree with us, with the respect they are entitled to.

But our concern today is not any ordinary concern. It's a concern that goes to the heart of what it means to live in a humane society.

Some things are so morally abhorrent that no society can condone them and call itself civilized.

Some actions amount to crimes. But some actions go beyond mere crimes.

Such as torture. Such as the waging of aggressive war.

Some actions so shock the conscience, they so strike at the heart of what it means to be human, that we consider them crimes not just against the victim, not just against the law, but against every human being. Torture, war, they ruin the human soul, they break lives, they lessen us all.

And I think what brings us here today is our concern that there is substantial evidence – growing by the day, with every newly released report and memo – that a tenured faculty member here at Stanford has been:

firstly, a principal participant in the planning and propaganda efforts of an aggressive war waged in supreme violation of international law;

and secondly, an explicit authorizer of brutalities which have long been widely understood as torture.

War and torture. Hundreds of thousands, millions of ruined lives. A tenured faculty member. That is the situation which confronts us here today.

* * *

Let me tell you what this is not about.

This is not personal. Maybe, if you live here at Roble, you might take this personally. But I have nothing personal against anybody, here at Stanford, or anywhere; and I hope that you don't either. We are not attacking anyone on a personal basis, but we do want to see accountability where there is evidence of involvement in extremely serious crimes.

Second, this is not about beliefs; this is about actions. If there's a faculty member who makes a statement I disagree with, well, we can respectfully and politely disagree. If there's a faculty member who makes a statement that is shocking and offensive – we might respectfully but not politely disagree. Maybe we might even be moved to protest. Freedom of speech protects unpopular views, as it protects protest; academic freedom protects intellectual inquiry.

But here, today, we are in a different category. We have a professor who did not merely advocate for brutalities like waterboarding – but authorised them. A professor who did not merely cheerlead for war, but was involved in official planning and propaganda efforts of that war, at the highest levels. These are not things to respectfully disagree about. These are not experiences to learn from. These are crimes to be prosecuted.

What do we do, if the authorities are not prosecuting --- whether in US courts, overseas, or internationally?

What does it say about us, about our campus, if we let this pass?

What does it say about us, about our campus, if we ignore the evidence of these monstrous crimes and have a dinner party instead?

* * *

Let's just briefly review some of the evidence.

You probably all know that our professor was National Security Adviser and chair of the National Security Council's Principals Committee. We now know that this committee authorised specific instances of waterboarding – and the discussions there were so detailed they were "almost choreographed". Moreover, our professor was not a passive participant; according to the report, she was "decisive". She told the CIA: "This is your baby. Go do it."

Now, in the last week, a declassified narrative from the Senate Intelligence Committee reveals that our professor became on July 17, 2002, so far as we know, the first high-ranking US official explicitly to authorize the brutal drowning technique known as waterboarding.

Now, torture is a crime under international law, under US law, there's an international treaty about it. It's very clear. There's no defence of protecting national security. There's no defence of intelligence chatter. Read the convention. Article 2 says that "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture". There are some things that, if you are minimally civilized, if you respect minimal human rights, you just don't do. The evidence suggests that it also doesn't work very well, but that's not the point; it's just wrong, and it's a crime.

However, there are these "torture memos". More of these have come out last week. Our professor assures us that everything she authorized was legal, and these memos provide the legal argument. Well, just go and read these memos and see what you think about the reasoning. Don't be afraid of legalese, this stuff speaks for itself.

Take the memo of August 1, 2002, which was released last week. August 2002, just after our professor authorised waterboarding. The conclusion: waterboarding, and all other desired techniques, not torture.

So, how is waterboarding not torture? Well, there might be a bunch of legal precedents that it is, going right back to the Spanish-American war, 1898, but somehow the lawyers didn't find them.

Anyway, the reasoning is pretty good. The statute says that to be torture, waterboarding must "inflict severe physical or mental pain or suffering". But you see, waterboarding only – only! -- involves the panic of imminent death from drowning! That's not actual physical pain, you see. Okay, but what about actual physical suffering? The physiological response of drowning seems like physical suffering to me! But no, you see, we are informed, that's not how it works. The phrase "pain and suffering" in the defintion of torture must be understood as a single concept, not "pain", not "suffering", but "pain-and-suffering". So, there's no pain, might be suffering, but there's no "pain-and-suffering". Get it?

And so it goes on.

The requirement in the War Crimes act is for "specific intent". So, says the memo, you have to actually explicitly specifically intend to inflict severe pain or suffering! If you intend anything else, it can't be torture! You just have to believe in good faith of something other than that you are inflicting severe pain or suffering. Your belief doesn't even have to be reasonable. And --- and this is a key point --- your good faith belief that you didn't actually specifically intend to inflict severe pain or suffering can be established by reliance on experts. Like legal advice. Like this very memo.

And this is the way to regard these memos. They were regarded as a "Golden Shield". They were written to get torturers out of jail. And producing fallacious legal arguments, reinterpreting the law to justify conduct that was previously clearly torture, has another name: aiding and abetting torture.

And there's plenty more. Go and read it, I'm just scratching the surface. Especially read the bit about putting someone in a box with insects.

So every time our illustrious professor talks about how everything was assuredly legal, that is the reasoning it's based on. It's ridiculous, it's unbelievably bad, it has been rescinded as an embarrassment, and it is aiding and abetting torture

And, our professor can't claim any ignorance about this. We know from the recently released report of the Senate Armed Services Committee, that through 2002-2003, she was present at several meetings in the White House at which Mr. Yoo, her Berkeley colleague, provided legal advice. So she has heard it. She knows how bad it is. And yet, the evidence is that she was decisive regardless.

* * *

Torture is one thing, and it's terrible. But I'm sorry, my friends, there are worse things in the world than torture. A full-scale war is much, much worse.

War is generally illegal, has been illegal since 1928. It can only be justified, legally, in two circumstances: as self-defence from imminent attack, or with authorisation from the UN Security Council under Chapter VII of the UN Charter. That doesn't necessarily make it moral, or good, but makes it legal. That's international law. Very simple. And neither condition was satisfied in the case of Iraq. So it's illegal. It's aggressive war.

And the waging of aggressive war is not just a crime. It's a crime against the world, a crime against humanity, the same crime for which the Nazis were tried at Nuremberg. Countries don't invade other countries in the 21st century. That belongs to a world long past, that belongs in past ages of barbarism.

So the invasion of Iraq is not to be regarded as a mistake, or a blunder, but, to quote the Nuremberg tribunal, it is "the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole." That is the position at international law, reaffirmed ever since.

Well, what is the role of our illustrious professor?

She was one of the "five Administration officials most responsible for providing public information and shaping public opinion on Iraq", and central to policy formulation and execution. Here I'm quoting a Congressional Committee and leading reports. She was among the topofficials promoting, planning, and eventually perpetrating the war.

Smoking guns and mushroom clouds. That's our professor.

The Center for Public Integrity has calculated that, overall, the Bush administration made 935 public false statements about the national security threat posed by Iraq. Of those 935, our illustrious professor made 56 false statements.

Aggressive war, and a breathtaking tragedy. Hundreds of thousands have died as a result of the war – by some estimates, well over a million. Over 4 million refugees. Lives broken across an entire region of the planet. A humanitarian catastrophe, and still ongoing.

That's our professor, who's having dinner parties in dormitories.

* * *

In the end, for us here at Stanford, I think it comes down to asking –

What sort of a world do you want to live in? and

What sort of a campus do you want to study in?

The horrors are not over. Violence in Iraq continues. War in Afghanistan escalates. Bombings in Pakistan escalate. Foreign policy goes on with the new President, as it has gone on for a long time, and it is not pretty. Before Iraq and Afghanistan there were interventions, just to name a few – in Panama, El Salvador, Nicaragua, Libya, Grenada, Angola, Guatemala, Iran; the list goes on, and it's bipartisan.

There is plenty to push the President on. And on the question of prosecuting torture, he is possibly wavering, he's been hedging.

He needs some backbone. But we can help to give him some backbone. Imagine what a message a strong stand by Stanford students on campus could send.

Because for us, this is not an abstract question. For us, this question has come home – today, it has come home for dinner.

I think it's important to realise that, in calling for prosecutions, we are not looking for retribution. The most important thing is to make sure that the horrible episodes we have seen – war, torture, aggression, violations of international law – do not happen again. How do you ensure they do not happen again? By letting anybody who is thinking of doing it again know that if they do it again, they will be prosecuted. And how do you ensure that? By prosecuting those who did it this time. The best way to put the past behind us is for people to face accountability now.

It's also the law – article 12 of the Convention Against Torture requires investigations, whenever there is reasonable ground to believe torture has been committed.

But we have to ask ourselves some questions:

How can we change a culture where such a professor considers herself able to invite herself over to dinner, where dozens will sign up adoringly?

Somehow we have to grow up. We have to realise that not every adult around here, not every authority figure, is someone to look up to.

Somehow we have to get people to think about their place in the world, their place at this university, and the place of this university in the world. Considering the role of this university in the power structures of society, what do we want it to be? And how can we make it so?

So I invite you to join with us, work with the coalition that is coming together to work on this issue, to work for justice, for accountability, and for peace.

After all, we all live here. It is the responsibility of all of us.

War Criminals of Tomorrow

An awesome video by a friend.

http://www.youtube.com/watch?v=6O2KeDPTh3o

"Condoleezza Rice is back at Stanford University. What does it mean for the Stanford community to accept an alleged war criminal on their campus? What does the pipeline of war criminals to universities mean for students everywhere? Please read about Rice's alleged crimes during the past 8 years: http://www.stanford.edu/group/antiwar/cgi-bin/mediawiki/index.php?title=Condi_coalition_letter_draft and support the movement on Stanford's campus to hold Rice and former Bush administration officials accountable..."

This is your pizza. Go eat it.

I think this is amazingly good --- at least to my own aesthetics. Just the right mix of seriousness and hilariousness, gravity and spirit, light and heavy, yin and yang.

http://www.stanford.edu/group/antiwar/cgi-bin/mediawiki/images/d/da/NoMoreTorture.png

This is your pizza. Go eat it.

Are you allergic to illegal wars? Do you think torture sucks? Can't stomach a dinner with Rice? Well then, come to our

Dinner for Human Rights and International Law

Condoleezza Rice will be having a dinner with students at Roble at the same day & time. This event is meant to peacefully show to the campus that the Stanford community will not ignore evidence that Condoleezza Rice violated international and domestic laws against aggressive war and torture, and that we must confront our own institutional role in enabling and even honoring this behavior. We want accountability!

Why are we having dinner parties with an authorizer of waterboarding in Roble Hall? History will not judge this kindly.

Articles about torture in today's NY Times

In Adopting Harsh Tactics, No Inquiry Into Their Past Use
http://www.nytimes.com/2009/04/22/us/politics/22detain.html

Report Gives New Detail on Approval of Brutal Techniques
http://www.nytimes.com/2009/04/22/us/politics/22report.html

Obama Won't Bar Inquiry, or Penalty, on Interrogations
http://www.nytimes.com/2009/04/22/us/politics/22intel.html

Another relevant regulation

This is a document I had not seen before.

"As members of the Stanford University community, all faculty, staff, students, members of the Board of Trustees, University Officers and affiliates are responsible for sustaining the highest ethical standards of this institution, and of the broader community in which we function. The University values integrity, honesty and fairness....
"Stanford recognizes that it must earn and maintain a reputation for integrity.... Even the appearance of misconduct or impropriety can be very damaging to the University. Stanford must strive at all times to maintain the highest standards of quality and integrity."
-- http://adminguide.stanford.edu/1.pdf

I guess we've had plenty of discussion of the disciplinary procedures, which (taken literally) limit themselves to "academic" misconduct and (again, if taken literally) would permit serial killers, rapists, and mass murderers, war criminals on campus, as long as they did not plagiarize, harass students or such things.

There is a procedure in this code of conduct, excerpted below. Mind you, it looks like it leads to the same highly flawed disciplinary procedures.

Perhaps there could be a working group to carry it out?

"
9. REPORTING SUSPECTED VIOLATIONS
a. Reporting to Management — Members of the Stanford community should report suspected violations of applicable laws, regulations, government contract and grant requirements or this Code. This reporting should normally be made initially through standard management channels, beginning with the immediate supervisor, instructor or advisor. If for any reason it is not appropriate to report suspected violations to the immediate supervisor (e.g., the suspected violation is by the supervisor) individuals may go to a higher level of management within their school or department.
b. Other Reporting — All violations of laws or regulations should be reported internally to the Institutional Compliance Helpline (compliance@stanford.edu or 650/725-0076) or to the Office of the General Counsel (650/723-9611). Any suspected violations of rules regarding federal funds may also be reported to the Department of Defense Fraud, Waste, and Abuse Hotline at 800/424-9098. In addition, any suspected violations of state or federal statutes, rules or regulations may also be reported to the California Attorney General's whistleblower Hotline at 800/952-5225.
c. Confidentiality — Such reports may be made confidentially, and even anonymously, although the more information given, the easier it is to investigate the reports. Raising such concerns is a service to the University and will not in itself jeopardize employment.
d. Cooperation — All employees are expected to cooperate fully in the investigation of any misconduct.
"

Rose fawns

http://www.charlierose.com/view/interview/10154

This was a terrible fawning interview by Mr. Rose. I was not impressed. The only thing he appeared to push her on was whether or not to "talk to Iran". This is the "debate" in US doctrine; what goes assumed is that it is right for the US to intervene in Iranian afairs, that it is right to remake the Iranian government however the US government (rather than the Iranian population) sees fit; that the United States has the right to rule the world.

Going unmentioned, unspeakable, unthinkable, as usual in standard US doctrine, was the long-standing bipartisan US policy of intervening in Iranian affairs, overthrowing the democratically elected government in 1953; installing the vicious and repressive Shah; sending commandos in in 1979 or so for which it was condemned by the International Court of Justice; and the repeated threats of force, including nuclear weapons, against Iran throughout the Bush administration; the threat of force alone in international relations is itself a breach of the UN Charter.

Not to mention that this interview seemed to involve a pretty clear distortion of the historical record, disregarding numerous assessments by the IAEA as to the status of Iran's nuclear program, and the obvious point about this program --- it is something developed *because* Iran feels threatened, and threatened primarily by the US. And Iran's efforts to assure a "grand bargain" for regional security has been wiped from the historical record: Rice just doesn't remember it , in this interview. And of course, in general, repressive tendencies in the Iranian government are only enhanced by US threats.

So, international criminality is the assumed position, and then Rose and Rice can discuss the best standover tactics; and in the process, the journalist can prostrate himself as "the naive journalist", looking up to the great statesperson for advice and direction. Journalism on its knees, and authority being worshipped, even when thrown out of office in disgrace.

More Rice-related horror

Mark Danner on Democracy Now today talking about his recent articles
on the ICRC reports.
http://www.democracynow.org/2009/3/18/mark_danner_bush_lied_about_torture

"
You know, I suppose one could argue that he really believed what he
said. You know, but at a certain point, as children find out at a very
young age, courtesy of their parents, simply believing something
doesn't make it true. You know, these things happen in objective
reality. They happen as a result of orders high up in the
administration. These activities were monitored very closely as they
happened, not only by CIA officials in Langley, Virginia, who were in
close contact with the interrogators from the beginning and hourly,
but by officials across the river in the White House. There's a clear
record of briefings by the then-CIA Director George Tenet of the
Principals Committee in the White House. The Principals Committee
includes the Vice President, then Dick Cheney; the then-Secretary of
State Colin Powell; then-Secretary of Defense Donald Rumsfeld;
then-National Security Adviser Condoleezza Rice...
"

In other Rice-related-horror news:

Recall that Blackwater (now Xe), the notorious private military
contractor / mercenary company, were contractors under Condoleezza
Rice's State Department, which not only did not restrain Blackwater
through its various massacres --- Rice's state department quite
arguably enabled them, accessories after the fact. Recall the December
2006 shooting of the Iraqi Vice President's guard, allegedly by a
drunk Blackwater mercenary --- within 36 hours, Rice's state
department had allowed him to flee the country, and shortly paid off
the guard's family.

Moreover, after the Nissour Square massacre of September 2007, Rice's
State Department granted the mercenaries immunity --- and she promoted
the staffers who oversaw Blackwater operations.

And then, in April 2008, despite Iraqi government efforts, Rice's
State Department renewed Blackwater's contract. Not until January 2009
did Iraq revoke Blackwater's license. See SSNW's letter, linked from
the main page of antiwar.stanford.edu, for the details and references.

Anyway, the most recent news is that none of this has stopped Obama
from renewing Blackwater's contract anyway.

New deal for Blackwater
http://washingtontimes.com/news/2009/mar/17/new-deal-for-blackwater-bucks-decision-by-iraq/
Obama disses Blackwater - then Renews their Contract
http://www.opednews.com/articles/Obama-disses-Blackwater--by-Josh-Mitteldorf-090318-657.html

Voices from the Black Sites

From the most recent (post-dated!) NY Review of Books, on the ICRC report on US detainees and more. Absolutely damning. Also mentions (but does not focus on) Condoleezza Rice's role --- "decisive" in the NSC Principals committee, according to the ABC News report of April 2008. Heavily sourced, powerful conclusions.

US Torture: Voices from the Black Sites
By Mark Danner
http://www.nybooks.com/articles/22530

What do you want your university to be?

An unpublished letter to the editor of the Stanford Daily

To the editor:

Thank you for reporting on the community meeting held Wednesday night to discuss courses of action in response to the return of Condoleezza Rice. It is welcome to hear the voices of Stanford students and community who are are concerned about Condoleezza Rice's actions while in high government office, including actions which have given rise to extremely serious allegations of war crimes and crimes against humanity, in this newspaper.

We would, however, like to point out some inaccuracies in this article.

First, there is a clear misquote of Professor Todd Davies. As a faculty member, Professor Davies is always careful in his language in regard to fellow faculty members. It is no light matter to raise concerns about criminal behavior by colleagues. Not only do none of us recall Todd making the attributed quote, we know that Davies does not speak in that way. Therefore, we are certain it is a misquote or misattribution.

Second, there is an open letter to the Stanford community in response to the return of Condoleezza Rice, which Stanford Says No to War has prepared and circulated. It is, however, not a petition. A petition was one of many courses of action raised at the meeting on Wednesday, but this letter is not one.

Third, the coalition that met Wednesday night does not yet have an official name. A working title of "Condi Un-Welcoming Committee" was used on the proposed agenda, but no decision has been made on a name yet.

In any case, we look forward to reading more articles in the Daily which raise these extremely serious concerns that many Stanford students, faculty and community members have with regard to Condoleezza Rice. We invite people to read our open letter, which is available at Stanford Says No to War's website, antiwar.stanford.edu. We invite people who share our concerns to join an email list such as iraq_coalition@ or action_condi@lists.stanford.edu for notifications
and information.

We also invite the Daily and other publications to publish the letter,
or an abridged version of it.

Yours sincerely,

Adam Hudson
Daniel Mathews
Ekin Kocabas
Daniel Weissman

on behalf of Stanford Says No to War

A not-very-impressive editorial

In response to a not-very-impressive editorial in the Stanford Daily...

This argument is amazing:

"rescinding tenure or failing to welcome Rice back will send a message to all Stanford professors who are now in or considering public service: do so at your own risk."

Since the "public service" involved in the allegations against Rice is the commission of major war crimes, with this substitution, with this substitution, the argument becomes:

"failing to welcome Rice back will send a message to all Stanford professors who are now committing or are considering committing major war crimes: do so at your own risk."

And that, I think, is precisely correct.

That the Daily then draws the opposite conclusion, and that "Stanford professors who are now" committing or are "considering" major war crimes should not be given a message of "do so at your own risk", speaks for itself.

Our new intelligence agency

From the Ultimate File, press clippings over the course of many years.

We are promulgating this knowledge, through the wiki.

http://www.stanford.edu/group/antiwar/cgi-bin/mediawiki/index.php?title=Condoleezza_Rice.

Edits welcome, wikis are the way of the future. There is no mistake on a wiki that can't be reversed, so don't worry!

Except by a big multinational corporation... or a court order... nope, even a court order can be reversed and a multinational corporation can be defeated, heh heh heh.