CYA and Human Rights Win Out

by emptywheel

I've been saying for months that, while the Administration might try to invent new ways to evade SCOTUS decisions, those decisions might still stop the torture. If those who administer the torture (and, hopefully, those who tap our phones) believe they would face legal consequences, the torture and tapping will end.

Well, now SCOTUS has pretty clearly said, given the clear direction from Congress, torture is not legal, no matter what Rummy has inserted into the Army's manual on interrogation, no matter what Bush said in his signing statement. And I don't think it will even take a very noble person to refuse to carry out these practices. It will just take an awareness of this ruling, which says law trumps executive overstep. As one and another person simply attempts to CYA, to avoid violating McCain's law and the Geneva Convention, it will get harder and harder for BushCo to find people willing to waterboard and humiliate.

At least I hope so.

Well, that's apparently the real reason BushCo shut down the secret prisons overseas. (Hat tip Cantinflas at DKos)

The Bush administration had to empty its secret prisons and transfer terror suspects to the military-run detention centre at Guantánamo this month in part because CIA interrogators had refused to carry out further interrogations and run the secret facilities, according to former CIA officials and people close to the programme.

The former officials said the CIA interrogators’ refusal was a factor in forcing the Bush administration to act earlier than it might have wished.

[snip]

But the former CIA officials said Mr Bush’s hand was forced because interrogators had refused to continue their work until the legal situation was clarified because they were concerned they could be prosecuted for using illegal techniques. One intelligence source also said the CIA had refused to keep the secret prisons going.

Of course, in true BushCo fashion, they decided to explain a large-scale mutiny by their intelligence services by claiming they were humbly responding to SCOTUS (see any of the last 50 Kagro X posts if you believed that BS).

When Mr Bush announced the suspension of the secret prison programme in a speech before the fifth anniversary of the September 11 terror attacks, some analysts thought he was trying to gain political momentum before the November midterm congressional elections.

The administration publicly explained its decision in light of the legal uncertainty surrounding permissible interrogation techniques following the June Supreme Court ruling that all terrorist suspects in detention were entitled to protection under Common Article Three of the Geneva Conventions.

But they weren't. They had to close the prisons because no one would agree to do Dick's dirty work for him anymore--not when SCOTUS had made clear they were violating our Constitution.

No wonder Bush is in such a rush to get torture-enabling legislation passed.

Comments

[DemFromCT]

As noted earlier, the Bushies are in trouble in the Senate on the detainees and the House on wiretaps. They can't claim it's a club to hit D's with. They may not actually get legislation passed pre-recess. In fact, Frist threatened McCain with a R filibuster to keep McCain's bill from passing.

This is not what they envisioned. And the SCOTUS is ultimately why [D's plus McCain et al] win.

[DemFromCT]

from the Houston Chronicle (headline) and AP:

Bush's allies struggle to keep war bills

By LAURIE KELLMAN Associated Press Writer
© 2006 The Associated Press

WASHINGTON — White House loyalists struggled on Wednesday to save President Bush's wartime legislative plans from collapsing under Republican squabbles. In cliffhanger votes, a House committee rejected, then endorsed Bush's proposal to continue tough interrogations of suspected terrorists.

[Eureka Springs, AR]

I wonder if anyone has thoughts on weather or not the bills allowing for continued torture and immunity for prior acts are constitutional. If a treaty (Geneva) is an extension of the constitution can a simple bill ammend it? Of course Cheney and Jr. may not care since they will be long gone by the time any judicial action would be complete.

[janinsanfran]

Those people carrying out the torture better be afraid. The SF Chron this morning headlined an article about the deportation of an 80 year old woman who had been a guard for the Nazis at Ravensbruck.

If we ever succeed in reasserting civilization in this country, who knows what transgressions that now are policy may be treated as crimes. Presently, I think it is our job to encourage that anxiety.

[DeanOR]

I really hope you're right about the impact of SCOTUS decisions on torture, which is a moral disgrace. Where does this leave the issue of habeas for CIA prisoners?

[freepatriot]

george bush is a war criminal

george bush is responsible for Crimes Against Humanity

and now that's gonna come out

mccain ain't gonna cover george's ass on this one

let frist filibuster george's "protection" bill, then george doesn't have any cover for his Crimes Against humanity

Kharma is a bitch. what comes around goes around. people in glass houses shouldn't throw stones. And you shouldn't keep humans in dog kennels unless you're willing to die in one of those kennels yourself

george bush is a terrible student, but nobody escapes those lessons

[Jodi]

George Bush isn't much of a student but he still did better than Kerry, both at Yale and with politics.

The Supreme Court decision sent the Administration, the CIA, and the Military back to the drawing board on handling prisoners. The military leadership and the CIA know that if there is a new Administration in 2008 or even just a Senate or a House (Democratic Party led) committee, they could be in trouble, and more than a few Cols and Generals might not get their next appointments.

Now in reality (from soldiers in the field) the best (and worse) interrogation occurs in the field. Out of sight.

McCain is going against the Republican Flow on this one for some reason. I think that it was a miscalculation. He seems to be saying, NO CHANGES, because I don't want to put my name on a Bill.

And finally (from soldiers in the field again) forget the crap about worrying about our soldiers being treated badly because of our own treatment of prisoners. They will be continue to be dragged in the street, torn apart, hanged, beheaded, and burned dead or alive. If your wish is to be "holier than they" well then you have a point.

[lespool]

Couldn’t Congressional members be charged with crimes against humanity for writing or ‎endorsing legislation that attempts to legalize torture? ‎

[jonnybutter]

Lespool gets to the point, which is that the Senate 'compromise' bill (one must use a staple gun and not nails to attach a prisoner's genitals to a board) is still very bad. The best we can hope for now, IMO, is that they will be unable to pass anything before the election. So far, CYA has (properly) won out, but not Human Rights.

[jonnybutter]

Jack Balkin has a rundown of the differences between the staple gun and the nails here.

[Katie Jensen]

There are many "experts" coming out of the woodwork, and discussing that if you want reliable information torture is not the solution. They detail how torture gets unreliable information. On K.O last night an ex cia officer said that the innocent man from Canada divulged that he had been in a training camp in Syria while he was tortured. When they went to verify facts they found he had never been to Syria. Torture gleans unreliable information. It doesn't work. All it does is create a climate of fear. We have enough of that, and part of terrorism is to laugh in the face of fear...if both sides are busy trying to laugh, both sides are ignoring the escalation and the very real safety issues that are being created. I thought the article (I think the link was here or fdl) about why Bush closed the secret prisons down basically says that the cia is refusing to cooperate because they fear they are violating the law. The pentagon commented stating that everything they were doing is legal. The cia had no comment. That says it all for me. Bush is violating the law, and even if he manages to change it, there will be hell to pay one way or another. It is a moral outrage from the man and party who stopped the world for a brain dead woman. What hypocrisy.

[jonnybutter]

BTW, HT to Eric for the above link. Eric also has a brief round up about our military detentions, including a report about 14,000 - mostly Iraqis....

..Captured on battlefields, pulled from beds at midnight, grabbed off streets as suspected insurgents, tens of thousands now have passed through U.S. detention, the vast majority in Iraq.

Many say they were caught up in U.S. military sweeps, often interrogated around the clock, then released months or years later without apology, compensation or any word on why they were taken. Seventy to 90 percent of the Iraq detentions in 2003 were "mistakes," U.S. officers once told the international Red Cross.

Hearts and minds.

[emptywheel]

Agreed, jonnybutter, there's still the matter of whether our Congressmen will support Human Rights. I'm hoping--not knowing whether it's a justified hope--that inaction will win out over their baser instincts. I do hope the timing works against the torturers, here.

[William Ockham]

I thought this whole situation was obvious to everyone, at least since the Hamdan decision. George W. Bush authorized CIA interrogators to commit war crimes. Rumsfeld authorized DOD interrogators to commit war crimes. These are facts. They knew (various folks including JAGs and FBI lawyers told them in no uncertain terms) that the techniques that they were using violated the Geneva Conventions. Gonzales, Yoo, and that crowd of vile and contemptible lawyers advised them otherwise, but when the SCOTUS lowered the hammer, the Administration could no longer get their underlings to carry out their evil plans. I know that last bit sounds silly, but how else can one describe people who use torture to achieve their goals?

Rumsfeld ought to be arrested today. George W. Bush and Dick Cheney should be impeached, but I am willing to wait until January for that. Whether or not they are impeached, they should be arrested as soon as they leave office. They should be charged with violating the War Crimes Act and FISA. If our justice system isn't up to the task, I hope and pray that the international tribunal in the Hague will step up to the plate, at least in Bush and Rumsfeld's case (I'm not sure there is an international case against Cheney).

[Mad Dogs]

I'm still of the opinion that the Congressional attempt to legislate "retroactive immunity" for the past Cheney Admininstration criminal acts is unconstitutional and a non-starter.

Simply put, Congress does not have the constitutional power to "pardon" folks. That only resides with the Executive branch.

And I think the Supremes would take a dim view of the Executive branch trying to pardon itself for crimes like torture and murder.

And lastly, Junya can't pardon himself, and since "He" is all he cares about, why bother. *g*

[Mad Dogs]

"The former officials said the CIA interrogators’ refusal was a factor in forcing the Bush administration to act earlier than it might have wished."

I wonder if George Tenet is one of those "former officials"?

Unless he was(is) dumb as a stump, I gotta think that he insisted on something in writing from the Cheney Administration before he would allow his folks to torture "alternately interrogate" detainees.

I'm wondering if he doesn't have an Executive Order with Junya's scrawl (in block letters doncha know *g*) on it and that he took it with him when he resigned as CIA Director.

Probably giving Junya a bad case of flatulence right now, and of course, Darth is probably feeling like the "big one" is coming. *g*

Oh to be a fly on the wall as these folks are squirming and stocking up on a major supply of Depends!

[smiley]

More CYA than caring about human rights methinks. The prospect of spending the next 20 years in a Turkish prison after being convicted of (Junta-ordered) war crimes really puts the torture shoe on the other foot doesn't it?

[Garrett]

Ava, Ill.: The Financial Times carried a report that the reason Bush brought the detainees to Gitmo was because the "jailers" at the CIA were refusing to be a part of it anymore. What are your sources saying?

Dana Priest: I'm not yet certain about the "jailers" themselves, but I have reported that CIA folks were refusing to participate in meetings where interrogations and renditions were being discussed in the last six months. So it's consistent in that way.
--Dana Priest discussion

You kind of have to guess a fairly high in the CIA food chain report or memo of legal opinion after the SCOTUS ruling? And disseminated over or around top-level CIA opinion about it?? A legal memo explicit enough to be this: "If those who administer the torture (and, hopefully, those who tap our phones) believe they would face legal consequences, the torture and tapping will end."?

Whatever exactly it was that happened, the CIA just shutting down whole secret prisons is no small deal.

[texas dem]

At least that explains why this legislative fight (over torture, and perhaps TSP too?) is happening now. It seemed clear from the beginning that Bush was walking right into a wall consisting of Warner-Graham-McCain, and there was no good reason to assume that he could roll these men on an issue they cared about. All that bravado about "taking it to the Democrats" seemed either lies or colossally dumb; now we know for sure it was lies, and that the Admin was not foolish enough to think this was a lovely political idea. They definitely played the media for fools, but they themselves must have known they were walking square into John Warner right before an election, with a strong likelihood of pulling Powell into the mix too. I'll bet they weren't too excited about that.

And someone over there must know they're likely to lose the House. This is their last chance to get a friendly bill through the Congress. I'm willing to bet now that some kind of bill does pass; eventually the Admin has to fold and take whatever Warner will give them, because they need legal cover badly and Speaker Pelosi sure as hell isn't going to give it to them. I was looking forward to another no-bill resolution, just like immigration, but now I'm thinking that Bush has got to get something onto his desk before Nov 7 or really suffer for it.

That actually raises the stakes a little. If there's gonna be a bill, I hope the Ds can make sure it's not a Specter-style embarrassment.

Actually, that puts these last two weeks or so of Congress in a whole new light. If this is the end of unified R control, shouldn't they be passing a boatload of awful bills? Why aren't they able to? What are Frist and Boehner doing these days?

[texas dem]

Damn! And here it is, WaPo top headline not 5 minutes later.

Bush and GOP Senators Reach Terror Bill Deal

"One official said that under the agreement, the administration agreed to drop language that would have stated an existing ban on cruel, inhuman or degrading treatment was enough to meet Geneva Convention obligations. Convention standards are much broader and include a prohibition on "outrages" against "personal dignity."

In turn, this official said, negotiators agreed to clarify what acts constitute a war crime. The official spoke on condition of anonymity, saying he had not been authorized to discuss the details.

Admin folds on the Geneva stuff in exchange for "clarity" on who's guilty of war crimes. It's probably not that simple, but it'll be hilarious if it is.

[texas dem]

That's too bad really. It would have been fun to see Bush begging Nancy Pelosi for protection from war crimes prosecution. Talk about your poetic justice... the guy who morphed Democrats into Osama having to come around begging.

Thanks for ruining our fun, Warner. Hope you got something good out of 'im.

[Jodi]

Some people have been seeking legal counsel on some aspects of their jobs at different government/military branches. First in-house counsel and then requesting approved outside counsel. They are setting a paper record of questions and concern.

The problem isn't that they fear that they have broken the law particularly but that if they are called to testify over and over under oath or make oath-bound (by law) testimony to some types of authorities, they will go broke with the legal fees to keep every thing straight.

Libby is a good example. He is a good lawyer and has done well making money, but still needs outside fundraising for his legal fees on "perjury and obstruction."

That is the great fear.

I think that when/if I am called I will take the Fifth because "I am afraid that my memory might be faulty and anything I say might be a mistake, and I am not sure if or when I have made or will make a prosecutable memory error."

... and don't think I am not serious!