Torture is still Torture, and it is Still Illegal.

Submitted by Lawrence Rafferty,(rafflaw), Guest Blogger

 This entire week the torture enthusiasts have been back on all of the news channels exclaiming their happiness that their “enhanced interrogation techniques” worked.  Of course, they are talking about waterboarding and other methods of torture. Why are Michael Mukasey, John Yoo and other members of the George W. Bush administration once again declaring that torture is good policy and that it was successful in helping to get Osama Bin Laden?

“Osama bin Laden was killed by Americans, based on intelligence developed by Americans. That should bring great satisfaction to our citizens and elicit praise for our intelligence community. Seized along with bin Laden’s corpse was a trove of documents and electronic devices that should yield intelligence that could help us capture or kill other terrorists and further degrade the capabilities of those who remain at large.  But policies put in place by the very administration that presided over this splendid success promise fewer such successes in the future. Those policies make it unlikely that we’ll be able to get information from those whose identities are disclosed by the material seized from bin Laden. The administration also hounds our intelligence gatherers in ways that can only demoralize them.  Consider how the intelligence that led to bin Laden came to hand. It began with a disclosure from Khalid Sheikh Mohammed (KSM), who broke like a dam under the pressure of harsh interrogation techniques that included waterboarding. He loosed a torrent of information—including eventually the nickname of a trusted courier of bin Laden.”  Wall Street Journal

The quote above was from an op-ed written by the former Attorney General of the United State, Michael Mukasey. It seems that Gen. Mukasey is now a big proponent of torture techniques and he even makes the unfounded claim that the name of the courier that eventually led the United States to Osama Bin Laden was obtained through the “harsh interrogation techniques”.  It is amazing to me that Mukasey who was a Federal judge before being named Attorney General, would be ignorant of the illegality of waterboarding.  Doesn’t Mukasey remember that the United States prosecuted Japanese soldiers after WWII for waterboarding American personnel and we also prosecuted American servicemen for waterboarding prisoners during the Vietnam War?

Gen. Mukasey even complains that President Obama did the country a disservice by eliminating the torture techniques from the government’s arsenal.  He further attacks the Obama administration for investigating the CIA operatives who were involved in the torture of detainees.  Gen. Mukasey just can’t get enough torture. An article in claims that Mukasey’s feigned concern for the CIA agents being investigated is a farce because the Wikileaks documents proved that the United States was using the alleged investigation into the CIA agent’s as a mechanism for convincing the Spanish authorities that their planned investigation into the torture carried out by American agents was unnecessary.

“In other words, what this cable shows is the genesis of the plan–on the day after the torture memos were released–to forestall international investigations of US torture by claiming that the US is itself conducting an investigation. It’s a claim that continues to this day.  It’s not a surprise that the Obama Administration has been pointing to its own investigations–credible or not–to persuade the international community not to hold our torturers accountable. But it is useful to see how the diplomats and the lawyers first hatched that plan.”

One of the authors of the infamous Torture Memos, John Yoo, also came out in favor of the torture techniques and he also tries to assert that torture played a role in obtaining the information needed to find and kill Osama Bin Laden.  “Also, buried in the stories may be yet another sign of the vindication of the Bush administration’s war on terror policies. Anonymous government sources say that the al Qaeda courier who led our intelligence people to bin Laden was a protege of Khalid Sheikh Mohammed, the architect of the 9/11 attacks who was captured in 2002, subjected to enhanced interrogation methods, and yielded a trove of intelligence on al Qaeda. Those same sources admit that interrogation of al Qaeda leaders, presumably by the CIA, yielded the identity of the courier. That identity was then combined into a mosaic of other information from other detainee interrogations, electronic intercepts, and sources in other countries, to eventually identify bin Laden’s hideout.” American Enterprise Institute

It seems painfully obvious to this reader that Prof. Yoo and Gen. Mukasey are trying to rewrite history, as well as rewrite our laws on interrogation.  There is no evidence torture had anything to do with the finding of and killing of Osama Bin Laden.  Even Senator Lindsey Graham admits to that as does Senator Barbara Feinstein.  Think Progress    “Not all Republicans are claiming that bin Laden’s killing vindicates torture. At a Capitol press conference Tuesday afternoon, Sen. Lindsey Graham (R-SC) stood apart from his colleagues in the GOP. “This idea we caught bin Laden because of waterboarding I think is a misstatement,” he said. “This whole concept of how we caught bin Laden is a lot of work over time by different people and putting the puzzle together. I do not believe this is a time to celebrate waterboarding, I believe this is a time to celebrate hard work.” Talking Points Memo

The Bush Administration officials seem to be attempting to rewrite history by claiming their illegal torture techniques aided in the search for Bin Laden.  In former Attorney Gen. Mukasey and Prof. Yoo’s cases, they are both asserting that torture is effective and that is legal.  That’s right.  According to the Torture Twins, Mukasey and Yoo, they claim that waterboarding is legal.  Although I agree that President Obama has done the country a disservice by not prosecuting the officials who authorized and carried out the torture during the Bush administration, by no means does that inaction make waterboarding legal.  I guess if the Bush apologists keep saying it enough, they hope that Americans will believe them.  Mukasey and Yoo both sold out their souls for their jobs and their President.  I hope they can sleep at night.

98 thoughts on “Torture is still Torture, and it is Still Illegal.”


    ‘Beyond Debate’
    Published: May 3, 2012

    Jose Padilla, the American citizen detained as an enemy combatant after he was arrested by the Bush administration in May 2002, was denied contact with his lawyer, his family or anyone else outside the military brig for almost two years and kept in detention for almost four. His jailers made death threats, shackled him for hours, forced him into painful stress positions, subjected him to noxious fumes that hurt his eyes and nose and deafening noises at all hours, denied him care for serious illness and more.

    This treatment was indisputably cruel, inhumane and shocking, in breach of the minimum standard required for anyone in American custody, especially a citizen. Some of it was torture, though Mr. Padilla should not have had to prove that to show his treatment was unconstitutional.

    Seeking money damages of $1 — to make a point about accountability — Mr. Padilla sued John Yoo, the draftsman of legal policies for the Bush war on terrorism. Mr. Padilla said Mr. Yoo violated the Constitution by helping to shape policies that led to the unlawful detention and interrogation of Mr. Padilla and then writing legal papers to justify that approach.

    In 2009, a Federal District Court in California ruled that Mr. Yoo was not immune from the lawsuit: the violations of rights Mr. Padilla alleged were “clearly established at the time of the conduct” and any “reasonable” federal official would have understood that.

    But this week, in a misguided and dangerous ruling, a three-judge panel of the United States Court of Appeals for the Ninth Circuit decided that Mr. Padilla’s lawsuit cannot go forward because Mr. Yoo is immune. The unanimous opinion contends it was not “beyond debate” that Mr. Padilla, a citizen declared an enemy combatant, was entitled to the same protections as any accused criminal or convicted prisoner — or that his alleged treatment was clearly established to be torture in the years he endured it.

    Until a year ago, the law gave officials so-called qualified immunity to shield them when they performed responsibly. In holding them accountable for exercising power irresponsibly, it required simply that a reasonable person would have known about the right he violated. Last May, however, the Supreme Court ruled that “existing precedent” must put any question about such a right “beyond debate.”

    That is an unworkable standard and the Ninth Circuit decision shows why. The Bush administration manufactured both “debates” — about torture and enemy combatants. Any future government can rely on this precedent to pull the same stunt as cover for some other outrage.

    By using the “enemy combatant” category, the Bush administration stirred debate that had not existed about whether rights of an American citizen in custody depend on how he is classified. By coming up with offensive rationalizations for torturing detainees, it dishonestly stirred debate about torture’s definition when what it engaged in plainly included torture.

    The Ninth Circuit was wrong to swallow those deceits and to dwell on whether Mr. Padilla’s mistreatment was torture. Even if somehow it did not qualify, its cruel, inhumane and shocking nature badly violated his rights as a citizen — and international law on the treatment of detainees. Even at the time, the issue was beyond debate, and Mr. Yoo should have known that.

  2. EXCLUSIVE: “Guidebook to False Confessions”: Key Document John Yoo Used to Draft Torture Memo Released

    Tuesday, 03 April 2012 11:43
    By Jason Leopold, Jeffrey Kaye, Truthout | Report


    “Learned Helplessness” was one of the main goals of the Bush administration’s torture program as overseen by Mitchell and Jessen. It is defined as “a laboratory model of depression in which exposure to a series of unforeseen adverse situations gives rise to a sense of helplessness or an inability to cope with or devise ways to escape such situations, even when escape is possible,” according to the American Heritage Medical Dictionary.

    The learned helplessness theory was developed by psychologist Martin Seligman, who discussed it in May 2002 at the SERE training school in San Diego, the same month Mitchell, who attended the lecture, began subjecting Zubaydah to various torture techniques. The CIA sponsored Seligman’s lecture.

    Brent Mickum, Zubaydah’s habeas attorney, reviewed the PREAL document and said it confirms what he has long believed: that Zubaydah’s torture took place prior to the issuance of Yoo and Bybee’s August 2002 torture memo.

    “This document confirms, in my view, that my client’s torture was over before that memo was ever issued,” said Mickum. “I can’t go into detail and why that is the government can only explain. I have been muzzled wrongfully even though the government contends that everything it did was legal.”

    Echoing Kleinman, Mickum added he was also struck by the PREAL manual’s extensive warnings to SERE instructors about the safety of trainees subjected to brutal interrogation methods.

    “Without commenting about anything that my client told me about what was done to him, what I can tell you is that there is no correlation between the safe treatment of SERE trainees listed in this particular document and what happened to my client. None whatsoever.”

    Author’s Note: When the Department of Defense released the PREAL manual last month, several pages were missing from the PDF file and the file also contained a number of duplicate pages. We contacted the FOIA office about the issue and officials there restored the missing pages, except for one: page 33, which a FOIA officer said he is unable to track down.

    end of excerpt

  3. OS – Can we expect an Ensign indictment soon? Or do they teach IOIYAR at the wingnut law schools that staffed the DOJ?

  4. On the subject of torture being illegal….

    I see that John Edwards may be indicted today for spending campaign money on keeping the fact he had a girlfriend secret. That the DOJ would go after Edwards so aggressively and let some real war criminals slide, boggles the mind. And they can go after whistleblowers like Mr. Drake, but ignore those who enabled, even encouraged, torture and other war crimes.

    I just read on HuffPo that a criminal indictment was forthcoming today on John Edwards. Where in the name of all that’s holy are the indictments on Cheney, Bush the Lesser and their band of merry war criminals?

  5. Anon Nurse,

    Nothing at all wrong with OTs. Just nice to have related topics posted together when appropriate.

  6. Former Federal Leo,

    You’re welcome, and I agree completely about the “thread continuity” issue. Having said this, running OT, occasionally, isn’t necessarily a bad thing, IMHO… 🙂 It was just one of those days…

  7. anon nurse,

    Thank you for searching for and posting this topic on a relevant thread instead of posting it on one of today’s unrelated threads. Posting within this ‘torture’ thread fosters thread continuity when people go back and search the archives for reference material, in this case, regarding torture *and*John Yoo.


    Bin Laden’s Gone. Can My Son Come Home?
    Published: May 21, 2011

    ON the evening of May 1, we learned that Osama bin Laden had been killed. The following dawn, I left my house in the Bay Area to catch a bus to Oakland International Airport. I flew to Indianapolis for a scheduled visit with my son, John Walker Lindh, at the federal prison in Terre Haute, Ind.

    I love my son. I enjoy our periodic visits and our weekly telephone calls, but this visit felt different. “If Bin Laden is dead,” I kept thinking, “why can’t John come home?”

    A convert to Islam, John was found, unarmed and wounded, in a warlord’s fortress in northern Afghanistan in December 2001. He was subjected to physical and psychological abuse — a precursor to the mistreatment of many prisoners, in both Afghanistan and Iraq, by the American military during the George W. Bush era. Marines took a photograph of John, blindfolded, bound and naked. It was published and broadcast worldwide.

    In post-9/11 America, John became a symbol of “the other.” He was called the American Taliban. A traitor. Detainee No. 1 in the war on terrorism.

    President George W. Bush called John a “Qaeda fighter.” Defense Secretary Donald H. Rumsfeld said, inaccurately, that he had been captured “with an AK-47.” Attorney General John Ashcroft said John had “turned his back on our country and our values.” Mayor Rudolph W. Giuliani suggested that John be put to death for treason; polls showed that many Americans agreed.

    This was heartbreaking to me and John’s mother. The son we know is intelligent, spiritual and good-natured. He has a wry sense of humor. He is fluent in Arabic, and curious about the history of the world’s languages and cultures.

    John was not running away from anything when he first went overseas. He had a passionate desire to embrace all aspects of Islam, including the Arabic language. He embarked on an unusual odyssey of learning and adventure with full support from his parents. He selected Yemen, where he traveled in 1998, at age 17, because it was one of the best places to learn classical Arabic.

    In November 2000, John left Yemen for Pakistan, and the next April, he wrote to me and his mother to say he was going into the mountains of Pakistan for the summer. That was the last we heard from him. Throughout the summer, and especially after 9/11, our family became increasingly worried about John’s whereabouts and his welfare. In December 2001 we were shocked to learn from the news that John had been found among a group of Taliban prisoners who had survived an uprising and massacre at an old fortress near Mazar-i-Sharif.

    Like Ernest Hemingway during the Spanish Civil War, John had volunteered for the army of a foreign government battling an insurgency. He thought he could help protect Afghan civilians against brutal attacks by the Northern Alliance warlords seeking to overthrow the Taliban government. His decision was rash and blindly idealistic, but not sinister or traitorous. He was 20 years old.

    Before 9/11, the Bush administration was not hostile to the Taliban; barely four months before the attacks it gave $43 million in humanitarian aid to Afghanistan. There was nothing treasonous in John’s volunteering for the Afghan Army in the spring of 2001. He had no involvement with terrorism.

    I was stunned when I learned that John had gone to Afghanistan. It wasn’t our fight; he put himself in harm’s way without his parents’ approval. He did not go into Afghanistan alone; he took his family with him, and we all have suffered for his impulsive choice.

    But John’s case was never about evidence. It was based purely on emotion — shock and anger over 9/11, compounded with a deep frustration that Bin Laden was able to escape from American forces. During the prison raid in which John was captured, another young American, a C.I.A. officer named Johnny Micheal Spann, was fatally shot. Mr. Spann’s father has pushed for harsh punishment. I respect his grief, and his son’s heroism. But his belief that John somehow was responsible for, or could have prevented, the death of his son is mistaken.

    In fact, in a plea deal in October 2002, the government dropped its most serious accusations against John, including terrorism and conspiracy to kill Americans. John acknowledged only that he had aided the Taliban and carried weapons. For this, he accepted a term of 20 years’ imprisonment. He turned 30 in February.

    On May 2 and 3, I had two long visits with John. He remains idealistic and spiritual, and a practicing Muslim. He once told me he thought Bin Laden had done more harm to Islam than anyone in history. As I said farewell, we both felt a sense of closure. I saw grief in his eyes over the pain he has caused himself and his family.

    John was a scapegoat, wrongly accused of terrorism at a moment when our grieving country needed someone to blame because the real terrorist had gotten away. Now that Bin Laden is dead, I hope President Obama, and the American people, can find it in their hearts to release John, and let him come home. Ten years is enough.

    Frank R. Lindh is a lawyer.

  9. McCain surprised me with his honesty on this issue. How do the rest of the torture mongers answer to his remarks?

  10. Elaine,

    Just got around to watching that clip.

    I think we should all congratulate JT on not turning and calling Buchanan an idiot over “that’s what Dr. King was all about.”

  11. I think we can safely say that McCain is the only Republican in the Senate who has a clue about what torture really is. And not simulated torture either. One has to wonder how much of that he has blocked out from his memory as a defense mechanism.

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