DailyKos let me down yesterday. This is important!

( – promoted by buhdydharma )

Cross-posted at dkos.

Special intro for docudharma version

This diary is written for the dKos audience in hopes of achieving a wide readership.  I had not intended to post it here, as it began as a fairly straightforward plagiarization of tahoebasha3’s diary, Overlooked by Media, Important Torture Testimony.  I was frustrated that the issue had not received more attention, so I wanted to point it out again on dKos.  In the process, the diary expanded to the point that I really want to post it here.  And I do so confident in the knowledge that what all of us care about is stopping our government from torturing.  Yet I don’t want to pull energy away from the great diary which inspired me to stay up most of the night creating this.  If this post pulls attention away from where it is deserved, or if it is in any way offensive to do this, please let me know so I can delete it.  Please save your comments pertinent to the original essay for that essay and only comment here with respect to what has been added.

dKos diary starts here  

I have come to rely on dailyKos for almost all of my news.  In fact, I’m downright smug about it.  When someone offers up an item from the news, I usually say something along the lines of “I know.  What really happened is . . .”  When someone dismisses something I’ve read here as propaganda or wild speculation, I just sigh at their ignorance.  I have learned that if I read something here which has gone unchallenged or uncorrected, then it is virtually always accurate.  And I usually learn it somewhere between a day and six months before any non-Kossack.  But yesterday the great orange glow was dimmer than it should have been.

Fortunately, I have recently begun spending more time at docudharma.  It was there that I learned of important developments which I had not seen reported here.  As a result of encouragement there, tahoebasha’s diary was cross-posted here on dailyKos, garnering little attention.  In searching for it here, I discovered another important diary on the same issue.  This is my attempt to support those diarists, and decent people everywhere, in calling for attention to these matters. Please read on.

Cross-posted at docudharma.

How important was the testimony of three distinguished legal scholars before a subcommittee of the US Congress to the effect that leaders and lawyers at the highest level of our government are guilty of war crimes?  Their straightforward testimony was unequivocal.  Is this an important development for our country, one worthy of our attention?  Remember this?

For me, I can’t imagine anything more important.  If we don’t get this story before the American people, we all know that no one will.

In addition, the National Lawyers Guild has called for the prosecution and dismissal from their jobs of lawyers for their actions in advising the highest ranking officials in our government.  I repeat this information here, even though it has been diaried, because humanity cries out for our attention on these matters.  I thought I’d never say this in a million years (and I apologize to all those I have silently scorned for saying it), but please recommend this diary.  Please follow this story.  Please insist that our country be a place in which those who are known to be guilty of torture and empowerment of torture are brought to justice.

Thanks to tahoebasha2 for calling to my attention testimony before the House Judiciary Committee– the Subcommittee on the Constitution, Civil Rights and Civil Liberties, in the diary Yoo: DOJ will not enforce U.S. laws against torture.  That diary received only 35 comments.  Included with the diary are three of the most galvanizing testimonies before Congress I have ever been privileged to witness.  The clarity, strength, and conviction of the sobering testimony left no space for the usual braying from our elected leaders.  At the very least, please watch those videos, which I have included again here.

Text of Marjorie Cohn’s testimony

Text of David Luban’s testimony

Text of Phillipe Sands’ testimony

Thanks to Code Breaker, I learned that the National Lawyers Guild has released a White Paper explaining why lawyers currently or formerly at the highest level of our government are now subject to criminal prosecution for legal advice given while in conduct of their official duties as part of the United States government.  In this paper, which is quoted extensively in NLG calls for investigation into Bush Admin. & Torture Memos the NLG calls for the prosecution and firing from their jobs of the lawyers involved.  This diary received 10 comments.

It is now known that torture was discussed and approved at the very highest levels of the United States government.  It is known that lawyers working in the government wrote memos which illegally re-define torture, which illegally offer legal justification for torture, and which illegally assure government employees that they will not be prosecuted by the DOJ for committing torture.  There is no reason to quibble about whether torture is the correct word here.  According to widely held and internationally accepted norms, our government planned and executed a program of torture for which it attempted to develop legal cover.

One of the scholars testifying on May 6 was Phillipe Sands.  His article in Vanity Fair, The Green Light, documents the legal development of the justification of torture.  He demonstrates that the discussions occurred at the highest level of government and that the legal justifications for torture preceded the implementation of torture at Guantanamo.  He demonstrates close involvement with torture at Guantanamo from the very highest levels, including physically visiting Guantanamo and issuing direct verbal orders.  Furthermore, he demonstrates that the very procedures used at Guantanamo migrated to other sites, including abu ghraib.  Here’s a gentle reminder of abu ghraib.

Do you salute the flag of the United States of America?  If so, you have an obligation to stand up for what the flag should stand for.

Do we want the United States to remain a member in good standing in the community of nations?  This requires accepting and respecting universally accepted codes of conduct.  In both the paper from the NLG and the powerful congressional testimony, the principle of jus cogens is invoked.  Is this a big deal for our country?  Here is what the NLG has to tell us about the legality of what has happened in the United States:

The prohibition against torture is a jus cogens norm.   Jus cogens are defined as norms “accepted and recognized by the international community of states as a whole … from which no derogation is permitted…”   In international criminal law, the legal duties that arise in connection with crimes designated as violations of jus cogens norms include the duty to prosecute or extradite, the non-applicability of statutes of limitations, the non-applicability of any immunities up to and including those enjoyed by Heads of State, the non-applicability of the defense of “obedience to superior orders” and universal jurisdiction over perpetrators of such crimes. Other jus cogens norms include the prohibitions against slavery, genocide, and wars of aggression.  Jus cogens norms, like customary international law norms, are legally binding. No affirmative executive act may undercut the force of these prohibitions nor may a legislature legalize crimes designated as violating jus cogens norms or immunizing from prosecution those responsible. Jus cogens norms differ from norms which have attained the status of customary international law by dint of their universal and non-derogable character and the fact that jus cogens norms are peremptory, that is, they trump any other inconsistent international law.

While legal scholars often differ as to what specific acts can be defined as being subject to jus cogens norms, it is beyond dispute that the prohibition against torture has attained that status.

Torture is legally equivalent to slavery, genocide, and wars of aggression.  As such, there is an internationally accepted duty to prosecute and/or extradite for the crime of torture.  There is no possibility of immunity even for Heads of State.  There is no defense on the basis of obedience of orders.  There is no statute of limitations.  All of humanity claims the right of jurisdiction, so heinous and unacceptable is the crime of torture to all civilized peoples.  The crime of torture is so universally abhorred that no national law can provide cover against the widely accepted international laws condemning torture.  Are we concerned that our nation is behaving like an international pariah?

I could go on and on.  I want to go on and on.  But I fear I have already taxed my readers’ patience.  One matter which some may question is whether the conduct we are discussing constitutes torture.  If torture is understood in the universally and legally accepted senses, there is no room for debate.  Lawyers for the Bush administration created definitions of torture out of whole cloth.  Jus cogens norms are unaffected by such maneuvering.  The 1984 Convention, which is binding to 145 nations, including the United States, defines torture in part as

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.

 No mention is made of organ failure.  There is no cynical discussion of how long it must last.

There is an international consensus on what constitutes torture. This consensus is codified in laws which are binding to the United States. Elected leaders at the very highest levels of the United States have broken these laws.  Prosecution of these crimes is legally and morally mandated.

If Kossacks aren’t paying attention, few others will be. I am not an effective activist.  I care deeply about these matters, but I am wired for knowledge acquisition and dissemination.  I get confused when it comes to converting thought into action.  I have little sense of which buttons to push or where the power lies.  I’m begging you wonderful, admirable activists to set your sights more firmly on bringing to justice those who would insult our humanity and shame our nation.

Thank you for reading.  I hope I haven’t come across as preachy or self-righteous.  To be honest, I am agitated and teary.  These developments are embers of hope.  I am trying to fan them furiously, but I also feel desperate for help.

I would apologize to Code Breaker and tahoebasha2 if I felt it necessary.  I have essentially repeated both their diaries, with added commentary.  But they have made it clear in their diaries and their comments that they will celebrate with me any widening of the discussion on this topic, which transcends petty interests.

Reference–Time line and List of Principles

I know this diary is already long.  I provide the following simply as a reference for anyone who wants to become more familiar with the details of this issue.

Here’s a timeline of the willful decision to involve the United States in the crime of torture.  Also a brief summary of the principle actors.  Links to most pertinent documents may be found on the WaPo site here.

September 11, 2002 – Anniversary of 9/11.  al-Qatahni not providing information to interrogators.

December 2001 – Haynes tells CentCom admiral in charge of detainees to “take the gloves off” and ask whatever he wanted in the interrogation of John Walker Lindh.

January 9, 2002 – John Yoo and Robert Delahunty give Haynes prepared opinion that the president is not bound by traditional international-law prohibitions.  Colin Powell and his counsel oppose this.

January 25, 2002 – Gonzales signs memo to president supporting Haynes and Rumsfeld over Powell.

January, 2002 – Feith uses lawyerly double talk to trick General Richard Myers, chairman of the Joint Chiefs of Staff, into thinking the Geneva Convention will be followed while simultaneously recommending to Rumsfeld and Bush that it offered no protection to the detainees at Guantanamo.

February 7, 2002 – Presidential order gives determination that, legally, none of the detainees at Guantanamo can rely on protection granted by the Geneva Convention, Article 3.

February, 2002 – Dunlavey placed in charge of military interrogations at Guantanamo by Rumsfeld.  In violation of the chain of command, he is told to report directly to Rumsfeld. “I don’t care who he is under.  He works for me.”

March, 2002 – High-ranking al-Qaeda official captured in Pakistan.  Tenet wants to use aggressive interrogation but worries about criminal prosecution.  Requests guidance.  Yoo-Bybee Memo is response to this request.

June, 2002 – Pressure applied from the highest levels to get information from al-Qatahni.

August 1, 2002 – Yoo-Bybee Memo (with input from Addington) declares that physical torture occurs only when the pain is “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death” and that mental torture requires “suffering not just at the moment of infliction but . . . lasting psychological harm.”

August 8, 2002 – al-Qatahni placed in isolation.

September, 2002 – brainstorming sessions at Guantanamo to discuss new interrogation techniques, facilitated by Diane Beaver and attended by representatives of the D.I.A. and the C.I.A.  Ideas include some taken from the televisions program 24.

Fall, 2002 – FBI and Naval Criminal Investigative Service refuse to be associated with the new techniques.

September 25, 2002 – Gonzales, Addington, Rizzo, and Haynes arrive at Guantanamo, offer suggestions, view at least one interrogation, and deliver the message to do “whatever needed to be done.”  Rumsfeld is “directly and regularly involved” during this time.

October 11, 2002 – Phifer Memo requests use of the new techniques, along with a legal opinion authored by Diane Beaver, staff judge advocate at Guantanamo, providing legal justification for use of the enhanced interrogation techniques.  This document was demanded of her, then offered as an indication that the justification came from a lower level lawyer at Guantanamo.  She was operating in a sphere outside her expertise and doing so in the face of marked unresponsiveness from those she approached for help.  This document was a direct result of Beaver insisting on written justification for policies being put in place orally from above.  She expected it to be reviewed and approved at the highest levels.

November 2002 – Haynes Memo to Rumsfeld recommending approval of 15 out of 18 aggressive interrogation techniques.

November 4, 2002 – Miller replaces Dunlavey as commander at Guantanamo.

November 14, 2002 – Alternative N.C.I.S. interrogation plan, using traditional techniques, is rejected.

November 23, 2002 – Aggressive interrogation of Mohammed al-Qahtani, the “20th hijacker,” is begun as a result of a vocal command given to Miller, probably by Rumsfeld.  Interrogation continues into January, 2003.

December 2002 – Rumsfeld approves use of aggressive techniques in writing.  With his signature is a handwritten remark seemingly trivializing the issue of torture.  He does not rule out future use of the other 3 techniques, including waterboarding.

December 17, 2002 – Mora of the N.C.I.S. is shocked upon getting an unauthorized look at a copy of the Haynes Memo.

December 20 and January 9, 2003 –  Mora meets with Haynes to express his grave concern.

January 15, 2003 – Mora places his concerns in writing, insisting to Haynes and Dalton of the clear illegality of the actions at Guantanamo.  Two hours later, the interrogations of al-Qatahni cease.  By the end of 54 days of torture, according to an army investigator, al-Qatahni had “black coals for eyes.”

August, 2003 – Miller and Beaver visit Guantanamo and encounter near lawlessness.

September 14, 2003 – Sanchez authorizes new interrogation techniques at abu ghraib, including several listed in the Haynes Memo and in violation of the Geneva Convention, which was believed to still be in full force at abu ghraib.

April 2004 – 60 Minutes breaks story of abu ghraib prisoner abuse.

June 22, 2004 – Gonzales and Haynes press conference.  Release of Haynes Memo.  Gonzales and Haynes claim that 1) the administration had moved deliberately and carefully within the law, acting always from good faith interpretations of accepted legal views, 2) the Yoo-Bybee Memo was not a justification for action but rather a theoretical legal exercise, 3) initiative for the enhanced interrogation techniques came from the bottom up in hopes of breaking down al-Qatahni, 4) legal justification for Guantanamo came from relatively low-ranking lawyers at Guantanamo, and 5)events at Guantanamo had no bearing on events at abu ghraib.

August, 2006 – Pentagon’s inspector general report concludes unequivocally that techniques had migrated from Guantanamo to abu ghraib.

June 29, 2006 – In Mamdan v. Rumsfeld U.S. Supreme Court holds that Guantanamo detainees are entitled to protection under the Geneva Convention, Article 3.  Justice Anthony Kennedy points out that “violations of Common Article 3 are considered ‘war crimes.'”

May 13, 2008 – Charges against al-Qatahni are dropped, possibly because of the interrogation techniques used.

The principle actors

The positions given are contemporaneous with the relevant actions.

Jim Haynes–top Pentagon general counsel.  Essentially, Rumsfeld’s counsel.

Alberto Gonzales–White House counsel, essentially George Bush’s counsel.

David Addington–Cheney counsel, now chief of staff.

William Haynes–Pentagon counsel, essentially Rumsfeld’s counsel.

John Yoo–Justice Department lawyer working for Jay Bybee.

Jay Bybee–Justice Department lawyer at Office of Legal Counsel, Yoo’s superior.

Douglas Feith–Undersecretary of defense for policy, no. 3 official at the Pentagon.

General Richard Myers–Chairman of the Joint Chiefs of Staff, argued in favor of following Geneva Conventions.

Major General Michael Dunlavey–Commander of Guantanamo during discussion of new interrogation techniques.

Lieutenant Colonel Diane Beaver–staff judge advocate to Dunlavey.  Scapegoat for legal opinion on torture.

John Rizzo–C.I.A. counsel who asked for DOJ guidance on techniques.

Major General Geoffrey Miller–Commander of Guantanamo after Dunlavey and during torture of al-Qatahni.

Alberto Mora–Naval general counsel who insisted on the illegality of the new techniques.