CIA director nominee Leon Panetta gave startling testimony in his confirmation hearings this week by retracting a statement critical of the Bush Administration’s rendition policy and proclaiming that CIA employees will not be punished for any war crimes that they committed. I discuss the testimony on this segment of Countdown.
Panetta made the statements before the Senate Intelligence committee and in an interview with AP. He stated that
“[i[t was my opinion we just can’t operate if people feel even if they are following the legal opinions of the Justice Department.” While he did not address the prosecution of those who ordered the war crimes, he categorically dismissed the idea that you could be prosecuted for just following orders. Of course, that is precisely the defense that we rejected after World War II and executed those who made the “just following orders defense.” We do not apply the same standard to terrorism: we will prosecute the head of Al Qaeda or Libyan intelligence service in a terrorism case but not the individuals who carried out the orders. Like other crimes, you are not allowed to commit torture and you are expected to refuse. Some did refuse in this country and those who did not committed a war crime.
None of this means that low-level CIA employees were likely to be prosecuted or that they had no defense. As I have said before, these employees can make an estoppel defense argument. However, such defenses are made in the course of an investigation. No reasonable leader should state that there is some irrebuttable presumption that an alleged torturer cannot be prosecuted if he was just following orders. The harm done from such careless statements to international law is incalculable. Moreover, by starting with such statements, you remove any leverage of investigations in seeking the cooperation of low-level individuals, who are less likely to cooperation if they know that they cannot or will not be prosecuted for their roles. President Obama and now Panetta have created a new American rule that, so long as a lawyer tells you to commit a war crime, you are immune from prosecution.
Finally, there is the problem of a future CIA director making such an announcement. While Panetta said he would “leave to others” the question of whether high-ranking officials might be prosecuted for war crimes, he could assure the committee that the actual torturers would be given immunity. It is a dangerous and presumptuous claim for an agency head to make. Even an attorney general nominee would be unwise to make such a categorical claim. A CIA director has no part in the decision whether one of his people should be charged as a war criminal — a legal question.
On the renditions question, Panetta was equally baffling. When pressed by Sen. Kit Bond (R., Mo.) on his prior statement that there was a policy to rendition individuals for torture, Panetta conceded that he was “not aware of the validity of those claims” and retracted the statement. Bond then publicly spanked him for “making statements or making judgments based on rumors and news stories,” saying that this was just rumors put out by “liberal blogs” and journalists.
However, it was not liberal blogs and journalists who put out these statements. Various people involved in the case admitted that they routinely used rendition for this purpose and many such cases show precisely this pattern. Panetta should have said that we can debate the meaning of an “official policy.” However, where there is such a pattern and understanding, many would view it as a policy. Policies are not formed like legislation or regulations with a record of committee reports or federal register events to mark its creation. Many an administration routinely renditions individuals, who are tortured, there is ample reason to call it a de facto policy.
For the story, click here
Come on CCD. These are ongoing cases. Holder promised to review the state secrets privilege claims to verify they’re not totally off the wall, and I trust him to do that.
ACLU stated today ” … Now we must hope that the court will assert its independence by rejecting the government’s false claims of state secrets and allowing the victims of torture and rendition their day in court…”
Exactly right.
Now, as for Guantanamo, Obama signed an executive order, the day after he was sworn, for conditions at the prison to be reviewed according to Geneva. Human rights groups have been allowed guided tours since 2004, but not access to detainees. I would prefer to hear their first-hand assessments, once they become available.
If you care so much, get off your ass, do some real research, and then contact your elected officials and ask how you can help
– instead of cyber-bitching.
Attacking Obama, in this manner after three only weeks, makes you fair game, as well.
He won. Get over it.
Jill,
Yes I’ve read those, and the way things are contracting…
Now for something completely different. More brain ache.
CCD,
If you go up a few posts you will see information on beatings of prisoners taking place at Gitmo under Obama. It is appalling.
Thank you for the Glenn Greenwald link. I think were going down, what would captain Sully do? Citizens brace for impact.
CCD,
Read this from Glenn Greenwald. He isn’t mincing his words. I don’t know what the motivation is, but that’s a good question. All I do know is–commence flooding the WH with the message that this will not be tolerated!!!
http://www.salon.com/opinion/greenwald/
Jill definite swing and a miss.
Dangerous and slippery slope we continue on. President Obama and AG Holder passed up an important opportunity to pivot our governments position towards law. What is motivating this choice?
Obama and Holder have upheld the exact policy of the Bush administration on state secrets. Again, I am hoping there isn’t any person who spoke out against this when Bush did it who will now justify this reprehensible behavior on the part of the Obama administration. Here is the clip from ACLU. Again, all people of conscience should speak out against these policies and denial of justice and the rule of law.
ustice Department Stands Behind Bush Secrecy In Extraordinary Rendition Case (2/9/2009)
FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org
NEW YORK – The Justice Department today repeated Bush administration claims of “state secrets” in a lawsuit against Boeing subsidiary Jeppesen DataPlan for its role in the extraordinary rendition program. Mohamed et al. v. Jeppesen was brought on behalf of five men who were kidnapped and secretly transferred to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture. The Bush administration intervened in the case, inappropriately asserting the “state secrets” privilege and claiming the case would undermine national security. Oral arguments were presented today in the American Civil Liberties Union’s appeal of the dismissal, and the Obama administration opted not to change the government position in the case, instead reasserting that the entire subject matter of the case is a state secret.
The following can be attributed to Anthony D. Romero, Executive Director of the ACLU:
“Eric Holder’s Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government. This is not change. This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again.”
The following can be attributed to Ben Wizner, a staff attorney with the ACLU, who argued the case for the plaintiffs:
“We are shocked and deeply disappointed that the Justice Department has chosen to continue the Bush administration’s practice of dodging judicial scrutiny of extraordinary rendition and torture. This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course. Now we must hope that the court will assert its independence by rejecting the government’s false claims of state secrets and allowing the victims of torture and rendition their day in court.”
We cannot keep excusing and denying the reality of Obama’s choices and their consequences. If we don’t speak now, these abuses will only continue.
This is an update on a case presented above: Please note that Ms. Bradley will testify that “conditons inside the Cuban prison camp have deteriorated badly since Barack Obama took office”. I am hoping that the readers of this blog do not hold a double standard on torture, namely that it is wrong if Bush lets it go down, but O.K. if it happens under Obama.
“Leutenant-Colonel Yvonne Bradley, an American military lawyer, will step through the grand entrance of the Foreign and Commonwealth Office in London tomorrow and demand the release of her client – a British resident who claims he was repeatedly tortured at the behest of US intelligence officials – from Guantánamo Bay. Bradley will also request the disclosure of 42 secret documents that allegedly chronicle not only how Binyam Mohamed was tortured, but may also corroborate claims that Britain was complicit in his treatment.
But first, Bradley, a US military attorney for 20 years, will reveal that Mohamed, 31, is dying in his Guantánamo cell and that conditions inside the Cuban prison camp have deteriorated badly since Barack Obama took office. Fifty of its 260 detainees are on hunger strike and, say witnesses, are being strapped to chairs and force-fed, with those who resist being beaten. At least 20 are described as being so unhealthy they are on a “critical list”, according to Bradley.
Mohamed, who is suffering dramatic weight loss after a month-long hunger strike, has told Bradley, 45, that he is “very scared” of being attacked by guards, after witnessing a savage beating for a detainee who refused to be strapped down and have a feeding tube forced into his mouth. It is the first account Bradley has personally received of a detainee being physically assaulted in Guantánamo.”
http://www.guardian.co.uk/world/2009/feb/08/binyam-mohamed-torture-guantanam
Here’s a facet. The AFM manual also reaffirms the longstanding U.S. policy of granting *Geneva Convention protections to detainees.
***See Third Geneva Convention of 1949 (abbreviated GCIII or GPW)
rafflaw and rcampbell,
I did back up what I said in response to your posts. The articles are lengthly but it is important to me to answer your questions in an honest, fact based manner. There are posts on the AFM (it still does allow torture) and rendition. I put in 4 or 5 posts, somewhat close to each other with the topics taken separately, for ease of reading.
Jill
CCD:
Both – and briefer is always better as any poet knows. Churchill was just as active as TR even wearing out his much frailer cousin during WW2. Here’s Britain’s one indispensable man’s sleep habits:
“At his house at Chartwell, his routine was quite regular. He would wake at 8, spend the morning in bed reading papers, dictating letters, etc., take a long nap at tea time, and work till as late as 3 am. He averaged 5-6 hours of sleep per day. Those words are attributed to Churchill himself: “You must sleep sometime between lunch and dinner, and no halfway measures. Take off your clothes and get into bed. That’s what I always do. Don’t think you will be doing less work because you sleep during the day. That’s a foolish notion held by people who have no imaginations. You will be able to accomplish more. You get two days in one — well, at least one and a half” (source). Churchill’s well-drilled biphasic habits made him one of the most energetic wartime leaders. On a humorous note, F. D. Roosevelt’s aides noted that after a Churchill’s visit, the US president was so exhausted that he needed 10 hours of sleep for 3 days straight to recover.”
Sir Winston was better or briefer?
Teddy got more accomplished before breakfast than 20 men. 🙂
Jill:
“Criticism isn’t something Obama can’t take. It’s healthy and it means we are still a democracy.”
************
Criticism is fine, but like most things in unrestrained abundance, it can also be counterproductive when someone is trying to dig us out of a crisis. That Obama is not perfect in all things should surprise no one. While I do my share of critical analysis and criticism, I do try to remember the words of Teddy Roosevelt:
“It is not the critic who counts: not the man who points out how the strong man stumbles or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes up short again and again, because there is no effort without error or shortcoming, but who knows the great enthusiasms, the great devotions, who spends himself for a worthy cause; who, at the best, knows, in the end, the triumph of high achievement, and who, at the worst, if he fails, at least he fails while daring greatly, so that his place shall never be with those cold and timid souls who knew neither victory nor defeat.”
“Citizenship in a Republic,”
Speech at the Sorbonne, Paris, April 23, 1910
Churchill, as usual, said it better:
“It is better to be making the news than taking it; to be an actor rather than a critic””
Ahhh!
Sorry, Patty. My bad.
That’s what I get for reading while eating. BBQ can be a distraction.
mespo
Zactly!
Mespo,
I never ever said I would rather have the past 8 years rather than what is happening now. That said, we will get 4 more years of the past eight years if we bury our heads in the sand and ignore what is happening. Criticism isn’t something Obama can’t take. It’s healthy and it means we are still a democracy. Glenn Greenwald has pointed out many times that those who want the status quo are not remaining silent. They have no qualms about letting Obama know exactly what they want him to do, right now. We are “chumps” (to borrow from JT) if we don’t let Obama know that we want him to do the right thing, right now. If we stay silent and wait, Mr. Greenwald is certainly correct that those who want the status quo will surely prevail. Only Obama can “doom” himself . Being questioned by a educated public is something our founders would have encouraged (they certainly engaged in it!). He doesn’t need protection from facts and neither should we.
I posted those articles, Buddha!
My objections are to the incessant hand-wringing and sweeping implications that Obama has the full intention of keeping George W. Bushes programs in place, despite his statements and short-order demonstrations to the contrary. It makes me tired.
Like JT, I don’t understand why Panetta felt the need to retract his statement, but I didn’t hear his entire statement.
The Scheurer article and statement I provided were supportive evidence of both the longstanding practice of ‘rendition’, generally, how matters ‘escalated’ under G.W. Bush, and as an unimpeachable CIA source from both former administrations – outside the ‘liberal blogs’.
BTW, I am one of the original ‘turlees’ and most of us regulars know where I stand on the issues as I do, they. Most know that I am active on constitutional issues in my region. Because of that, I am also guilty of assuming most are capable of reading between the lines. Sorry if I was not crystal clear.
George Bush had eight years to screw things up, royally, and was a busy boy right before he left office. Obama may need a couple more weeks to straighten it all out… ;P
Jill:
“I am very worried about all of these things.”
*****************
Rome wasn’t built in a day or even three weeks. Give him some time. Would you really rather have the past 8 years over the last three weeks? Commanders have to be mindful of the situation on the ground and the political realities. He knows the right course. Let him tack a little before condemning him. I think he is prudent and doesn’t want to rush headlong into confrontation that will doom him early.
Buddha,
You are welcome. Again I appreciate rafflaw and rcampbell not personally attacking me. I know that we feel differently about Obama and that makes it extremely important to show the evidence for my thinking.
Jill,
Thanks for the link.