Alienable Rights

[Larry Johnson's notable spotlight on Jane Mayer's essential new book has led me to search for some of the old stories I wrote that referenced Jane Mayer's marvelous writing for The New Yorker. Here is one such story, that I wrote -- get this -- on April 4, 2006. I've dug up a couple more and will post them over the next couple days. Remember this name: Alberto Mora. A wonderful man, a conservative Republican, who fought Addington et al. so very hard, but had no chance to be heard. Jane Mayer gave him his due in the pages of The New Yorker. [TOMORROW NIGHT, you will learn about Alberto Mora.] Boy, I sure used to write better. Sigh. - Susan (Yes, there are a few comments from 2006; this blog was so small back then that maybe only 100 people a day stopped by.)]

by SusanUnPC

Who would have thought that the treasured American rights we might name would include:

• having an arrest warrant issued against you
• being arrested
• being charged
• having to hire an attorney or be assigned one, and fashioning one’s own defense, and
• being tried in a court of law

These are hardly the rights that pop into our minds when we praise the American system of government that once included inalienable rights. These are hardly the rights we’d hit the streets to defend. As a street anthem, the right to be arrested and tried is hardly as stirring, say, “No more war for oil.” Yet, without the inalienable right to be arrested and to face one’s accuser — and having to fear that George Bush will willfully, arbitrarily exempt that right — our citizenry’s pact with its government for all, citizens or not, has been dissolved, along with the assurance of having one’s day of defense in the bright light of courtroom procedures shielded by a viable judicial branch of government (with the added insurance of right of appeal) and by our fellow citizens’ public judgment.

Although a jury ruled [Zacarias] Moussaoui is eligible for the death penalty on Monday, [FBI whistleblower Colleen Rowley, Minnesota congressional candidate] says administration officials may stop using criminal courts for future cases. “If you don’t deal with them in the criminal court then you are allowed to go around all criminal procedure and the Constitution,” she said. (From today’s interview of former FBI Special Agent Rowley on Democracy Now!)

In its artificial war on a noun (terror), the Bush administration has deemed the arrest and trial of criminals to be so 20th century, and that criminal procedure, in situ, is not useful as a means to an end because the administration seeks not truth but only what it thinks is informational (if that). Criminal procedure is a lengthy process fraught with the potential for prosecutorial slip-ups, unpredictable witnesses, and public exposure of embarrassing revelations of extra-judicial and illegal interrogation methods (e.g., torture) as well as weak chains of evidence or, as seen in the Carla Martin mess, the improper coaching and prepping of witnesses.

I was a prosecution witness in a federal trial a couple years ago, and cannot count how many times that I, and all of the witnesses, were admonished by the U.S. Attorney herself, her aides, and the FBI Special Agent who recruited my testimony that we must not discuss any facet of the case at any time. We were only to know what we were expected to testify about, and were not to know a single other fact about the criminal case.

Sometimes, in the federal courthouse anterooms where we all waited our turn to testify, the “regular folks” witnesses slipped up and mentioned something about the case, but the FBI and ICE agents, who were also waiting with us to testify, quickly interrupted, told us not to say a word and told us they didn’t want anything we said to influence what they might say in their testimony. Such witness admonitions are SOP, so it is absurd that Ms. Martin or the witnesses did not know better. But, it was all such a painful nuisance. All those rules. All that time. All that public airing of government screw-ups.

Bush’s unitary presidency holds ex officio its standing above the law.

Because he says so.

Because by memoranda, statements, and orders, Bush has seized an executive government tethered less and less to its withering judicial and congressional branches.

Today, Raw Story published this story: “Amnesty report claims CIA used private flights to hide terror rendition.” We must ask ourselves if this is what we want our country to do to suspects. (If any of you caught the Showtime mini-series, Sleeper Cell, you’re aware of the government’s predicament in some situations with certain detainees. I won’t say more in case you’ve not seen the 10-part series, which is superbly, dramatically crafted, and which can be rented or seen via ITunes. It’s must-see television that’s thought-provoking. I’ll just say that the government finds itself in a tough legal predicament and that I have sympathy for its problem.)

And now for a reminder of what once was, and how it was possible to find justice the old-fashioned democratic way.

It worked. But is it now lost to us? Will FBI agents again be able to use their great skills — as Larry Johnson describes below to Richard Sale — to find out information without torture and denial of legal rights? Will American courts be the setting in which our citizens, and the world, learn about criminal terrorist activities, and just how much of a case our designated government agents and attorneys have? Or will all such investigations, interrogations, and findings be secreted from all review, even a warrant?

Outsourcing Torture: Secret History (FBI v. CIA)

Written by me, as Susanhu, on February 8, 2005 :: At Daily Kos

Besides the abdication of U.S. and international law — creating “rights-free” prisoners, as Yale law dean Harold Koh said at the Gonzales confirmation hearing — certain elements of the CIA rendition story have puzzled me.  The hot-off-the-presses New Yorker piece spurred me to try to piece the puzzle together for myself and you.

FOCUS: Why has the Bush administration committed to torture instead of skilled interrogation?

What got me thinking about this was a revealing analysis of rendition (Jan. 19, 2005) by the experienced UPI intelligence reporter Richard Sale.  

It’s telling — that emphasis that Sale uses to conclude his analytical article:

“I think the greatest mistake of this administration has been that they have ignored the expertise of the FBI in these matters,” said [former CIA and State Department official Larry Johnson]. “The FBI is enormously skilled in extracting information from people in a non-threatening way.

“Instead, this administration has given control to U.S. Special Forces and the U.S. military, who frankly don’t have a clue. Look at Abu Ghraib. It’s dispiriting.”

So, we learn from Richard Sale — and he makes a point of letting us know — that the FBI is skilled at interrogation.  Without using torture or humiliation.  Since reading Sale’s analysis, I’ve been very curious.  How does the FBI do this? Especially with terrorism suspects, who are notoriously difficult to “crack”?

And why don’t we still use FBI-style interrogation?  Why do we “render” suspects to other countries for interrogation that we know will include torture?

First, let’s compare the FBI’s results with successful convictions for the embassy bombings (4) to the Bush administration’s record of convictions since 9/11 (0). That’s right.  Zero convictions.  In fact, a German court has had to retry the only 9/11 suspect convicted to date, in Germany, not the U.S.  Mounir El Motassadeq, a suspected member of the Hamburg Cell, is being retried after “an appeals court ruled … that El Motassadeq was denied a fair trial because the U.S. government refused access” to Ramzi Binalshibh, reputed to be a key planner of 9/11, and who is being held in secret custody, “rendered” unavailable by the U.S.

Of course, I realize it’s quaint to think of success in terms of courtroom convictions.  That’s certainly not how the Bush administration judges its success.  But, just in case the legal process does matter, let’s find out how we’d go about getting information that could be used in a U.S. court of law.  (I seem to recall that courts exclude testimony obtained through torture, which may explain the U.S.’s reluctance to allow German prosecutors to call Mr. Binalshibh as a witness.)

The New Yorker article tells us how the FBI extracted information without rendering its suspects to other countries or using torture:

For ten years, [Dan Coleman, an ex-F.B.I. agent]  worked closely with the C.I.A. on counter-terrorism cases, including the Embassy attacks in Kenya and Tanzania. His methodical style of detective work, in which interrogations were aimed at forging relationships with detainees, became unfashionable after September 11th, in part because the government was intent on extracting information as quickly as possible, in order to prevent future attacks.

Yet the more patient approach used by Coleman and other agents had yielded major successes. In the Embassy-bombings case, they helped convict four Al Qaeda operatives on three hundred and two criminal counts; all four men pleaded guilty to serious terrorism charges. The confessions the F.B.I. agents elicited, and the trial itself, which ended in May, 2001, created an invaluable public record about Al Qaeda, including details about its funding mechanisms, its internal structure, and its intention to obtain weapons of mass destruction. (The political leadership in Washington, unfortunately, did not pay sufficient attention.)

The methodical Coleman — with his track record of successful interrogations — is furious about the out-of-control practice of rendition and the legal cover that CIA agents find by consulting “‘their own enormous office of general counsel that rarely tells them no. Whatever they do is all right. It all takes place overseas.’”

Coleman was angry that lawyers in Washington were redefining the parameters of counter-terrorism interrogations. “Have any of these guys ever tried to talk to someone who’s been deprived of his clothes?” he asked. “He’s going to be ashamed, and humiliated, and cold. He’ll tell you anything you want to hear to get his clothes back. There’s no value in it.”

Coleman said that he had learned to treat even the most despicable suspects as if there were “a personal relationship, even if you can’t stand them.” He said that many of the suspects he had interrogated expected to be tortured, and were stunned to learn that they had rights under the American system. Due process made detainees more compliant, not less, Coleman said.

He had also found that a defendant’s right to legal counsel was beneficial not only to suspects but also to law-enforcement officers. Defense lawyers frequently persuaded detainees to coöperate with prosecutors, in exchange for plea agreements.

“The lawyers show these guys there’s a way out,” Coleman said. “It’s human nature. People don’t coöperate with you unless they have some reason to.”

He added, “Brutalization doesn’t work. We know that. Besides, you lose your soul.”

Astonishing.  There is another effective means. Besides torture.  Who would have thought it.  Certainly not the Bush administration which, despite its protestations, we all know endorsed and encourages the use of torture against — not just “Al Qaeda members and supporters” — but also “the entire Taliban, because, [John C. Yoo, the deputy assistant attorney general at the time] and other lawyers argued, the country was a ‘failed state’.”  (In other words, if you’re unlucky to live in a nation declared a “failed state” by John Yoo, you’re subject to torture.)

Eric Lewis, an expert in international law who represents several Guantánamo detainees, said, “The Administration’s lawyers created a third category and cast them outside the law.”

Many have fought the battle to preserve U.S. and international law but, so far, have lost:

The State Department, determined to uphold the Geneva Conventions, fought against Bush’s lawyers and lost. In a forty-page memo to Yoo, dated January 11, 2002 (which has not been publicly released), William Taft IV, the State Department legal adviser, argued that Yoo’s analysis was “seriously flawed.” Taft told Yoo that his contention that the President could disregard the Geneva Conventions was “untenable,” “incorrect,” and “confused.”

Taft disputed Yoo’s argument that Afghanistan, as a “failed state,” was not covered by the Conventions. “The official United States position before, during, and after the emergence of the Taliban was that Afghanistan constituted a state,” he wrote. Taft also warned Yoo that if the U.S. took the war on terrorism outside the Geneva Conventions, not only could U.S. soldiers be denied the protections of the Conventions–and therefore be prosecuted for crimes, including murder–but President Bush could be accused of a “grave breach” by other countries, and be prosecuted for war crimes. Taft sent a copy of his memo to Gonzales, hoping that his dissent would reach the President. Within days, Yoo sent Taft a lengthy rebuttal.

A former State Dept. lawyer told the New Yorker:

“Our job is to keep the train on the tracks. It’s not to tell the President, `Here are the ways to avoid the law.’” He went on, “There is no such thing as a non-covered person under the Geneva Conventions. It’s nonsense. The protocols cover fighters in everything from world wars to local rebellions.”

All the State Department’s efforts, and those of countless international and U.S. human rights groups have, to date, been for naught:

At the request of the C.I.A., Secretary of Defense Donald Rumsfeld personally ordered that a prisoner in Iraq be hidden from Red Cross officials for several months, and Army General Paul Kern told Congress that the C.I.A. may have hidden up to a hundred detainees.

The UPI’s Richard Sale also notes the political motives behind other governments’ labeling of their citizens as terrorists:

This same source said that since Sept. 11, the CIA has transferred “just under 40 terrorist suspects” to such countries as Saudi Arabia, Jordan and Egypt — moderate Arab allies with poor civil and human rights records and where the jailing of terrorists has often been used, not against criminals, but simply to get rid of political rivals and opponents. …

Rendition Begun in Mid-1990s Under Clinton Administration

Even early advocates of the CIA’s rendition program are having trouble with the “unintended consequences of the Administration’s radical legal measures.”  One of the critics is Michael Scheuer, a former C.I.A. counter-terrorism expert who helped establish the practice of rendition, and who left the agency in 2004 and published the best-seller “Imperial Hubris: Why the West is Losing the War on Terror,” originally with the pseudonym Anonymous.

It was begun in desperation, ” [Scheuer] told me. At the time, he was the head of the C.I.A.’s Islamic-militant unit, whose job was to “detect, disrupt, and dismantle” terrorist operations. His unit spent much of 1996 studying how Al Qaeda operated; by the next year, Scheuer said, its mission was to try to capture bin Laden and his associates. … “We went to the White House”–which was then occupied by the Clinton Administration–”and they said, `Do it.’” … Richard Clarke, who was in charge of counter-terrorism for the National Security Council, offered no advice. “He told me, `Figure it out by yourselves,’” Scheuer said. (Clarke did not respond to a request for comment.) …

… the C.I.A. was wary of granting terrorism suspects the due process afforded by American law. The agency did not want to divulge secrets about its intelligence sources and methods, and American courts demand transparency. …

The agency realized that “we had to come up with a third party.”

The obvious choice, Scheuer said, was Egypt. …

A series of spectacular covert operations followed from this secret pact [with Egypt]. On September 13, 1995, U.S. agents helped kidnap Talaat Fouad Qassem, one of Egypt’s most wanted terrorists, in Croatia. …

The partnership between the American and the Egyptian intelligence services was extraordinarily close: the Americans could give the Egyptian interrogators questions they wanted put to the detainees in the morning, Scheuer said, and get answers by the evening. The Americans asked to question suspects directly themselves, but, Scheuer said, the Egyptians refused. “We were never in the same room at the same time.” …

Scheuer claimed that “there was a legal process” undergirding these early renditions. Every suspect who was apprehended, he said, had been convicted in absentia.

Since September 11th, as the number of renditions has grown, and hundreds of terrorist suspects have been deposited indefinitely in places like Guantánamo Bay, the shortcomings of this approach have become manifest. “Are we going to hold these people forever?” Scheuer asked. …

Richard Sale points to the original “positive” reason for rendition:

Although current news accounts almost without exception picture rendition as negative, in fact it has a positive side: It is used by the CIA and FBI to gain custody of major suspects from countries that do not have an extradition treaty with the United States, thus enabling U.S. intelligence agencies to interrogate them and bring them to the United States for a fair trial and imprisonment if convicted, several serving and former U.S. intelligence officials said.

But there is no “fair trial and imprisonment” for the Bush administration’s detainees. The retired FBI agent, Dan Coleman — no fan of rendition — is “troubled by the Bush Administration’s New Paradigm. Torture, he said, ‘has become bureaucratized’.”

Bad as the policy of rendition was before September 11th, Coleman said, “afterward, it really went out of control.” He explained, “Now, instead of just sending people to third countries, we’re holding them ourselves. We’re taking people, and keeping them in our own custody in third countries. That’s an enormous problem.” Egypt, he pointed out, at least had an established legal system, however harsh.

“There was a process there [in Egypt],” Coleman said. “But what’s our process? We have no method over there other than our laws–and we’ve decided to ignore them.”

Ignore them we have:

Serving U.S. intelligence officials had no idea why [Mamdouh] Habib, described by an Australian Embassy official “as a person of security interest” who had not violated any laws, was chosen for rendition.

“It makes no sense,” said former chief of CIA Afghanistan operations Milt Bearden. “Any time you send a foreign national to a place where he knows he’s going to have his fingernails ripped out, he’ll sign any sort of confession, he’ll make any sort of admission. You don’t get intelligence worth squat as a result.” …

Some renditions appear to be merely a form of revenge. [AHEM]

Richard Sale

AGAIN, THE FOCUS: Why has the Bush administration committed to torture instead of skilled interrogation?

Because, as with everything else it undertakes, the administration is always in a rush.  There’s no time for careful interrogation.  Torture is faster, the administration thinks.  And, according to the New Yorker, it’s more “fashionable.”

Here’s what fashion dictates: Bush thinks that the Islamists “hate our freedom.”  So Bush apparently concludes that the Islamists won’t mind if we cast off our freedoms where they’re concerned.  I realize that’s sarcastic, but perhaps the “product description” at Amazon for the book by Scheuer (formerly known as Anonymous) will make my point:

Blustering political rhetoric “informs” the public that the Islamists are offended by the Western world’s democratic freedoms, civil liberties, inter-mingling of genders, and separation of church and state. However, although aspects of the modern world may offend conservative Muslims, no Islamist leader has fomented jihad to destroy participatory democracy, for example, the national association of credit unions, or coed universities.

“Participatory democracy” includes the U.S. justice system.  And not just because it’s the right thing to do, but because it’s successful.  It’s key to note that that FBI agent was far more successful in his plodding, time-consuming interrogations sans torture — with the conviction of “four Al Qaeda operatives on three hundred and two criminal counts [for the embassy bombings]” and which also provided “an invaluable public record about Al Qaeda.”

Further, we’ve jeopardized the successful resolution of key cases, should they be brought before a court, under the “quaint” system:

By holding detainees without counsel or charges of wrongdoing, the administration of US President George W. Bush “has jeopardized its chances of convicting hundreds of suspected terrorists, or even of using them as witnesses in almost any court in the world,” the report said.  ”CIA renditions of terror suspects are ‘out of control:’ report,” AFP/Yahoo, Feb. 6, 2005

As if George Bush cared about convictions.  (That’s a pun.)

I suggest reading, in full, both OUTSOURCING TORTURE: The secret history of America’s “extraordinary rendition” program by Jane Mayer, and the Richard Sale analysis, “Analysis: Renditions pro and con.”