Jurist Legal News and Research

Germany Could Take in Gitmo Prisoners

German government spokesperson Thomas Steg said Monday that Germany would consider taking in detainees released from the Guantanamo Bay military prison if U.S. President-elect Barack Obama closed the facility. Steg said that Germany supports closure of the facility and that all European Union (EU) member states should cooperate to formulate a plan for taking in detainees who cannot be returned to their homelands because of risk of torture. Hamburg interior minister Christoph Ahlhaus said Monday that his state might be willing to take in detainees, but would consider each case on an individual basis.

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Bush Signs Executive Order Barring Union Rights

U.S. President George W. Bush issued an executive order on Monday that defined the primary objective of some 8,600 federal agency employees to be national security-related, rendering them ineligible for Federal Labor-Management Relations Program coverage such as collective bargaining rights. The order says:

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Will Obama Take on Bush-era Torture?

Some officials in the formative administration of U.S. President-elect Barack Obama have said they support the creation of a bipartisan congressional commission to investigate potentially abusive U.S. counter-terrorism policies, according to a Newsweek report Saturday. The officials have suggested that such an investigation should be similar to the 9/11 Commission, with a focus on making public the details surrounding the development and authorization of harsh interrogation techniques and other counter-terrorism policies, rather than incriminating those involved. Both Obama and his aides have said previously said that his administration is not likely to prosecute those who approved or carried out the torture or other harsh interrogation of terrorism suspects, and will instead focus on the creation of new anti-torture laws.

Earlier this month, human rights experts at the University of California, Berkeley, in partnership with the Center for Constitutional Rights released a report urging Obama to form an independent, nonpartisan commission with subpoena powers to investigate the treatment of U.S. detainees in Guantanamo as well as in facilities in Afghanistan and Iraq. Their proposal, however, was more directed at establishing accountability, as the authors warned that any commission established by Obama must not be undercut by the issuance of pardons, amnesties, or other shielding measures.

Legal Challenges Filed Against Prop 8

Rights groups filed a writ petition with the California Supreme Court on Wednesday seeking to invalidate a state constitutional amendment prohibiting same-sex marriage. Proposition 8, which was approved by about 52 percent of California voters Tuesday, provides that "[o]nly marriage between a man and a woman is valid or recognized in California." The writ petition, filed by attorneys for the American Civil Liberties Union (ACLU), Lambda Legal and the National Center for Lesbian Rights on behalf of Equality California and six same-sex couples who want to marry, asks the court to stay enforcement of the amendment until the litigation is resolved. The petition alleges that Proposition 8 is not a valid amendment but rather a constitutional revision, which under provisions of the California Constitution must be approved by the state Legislature. In a press release, Lambda Legal attorney Jenny Pizer said:

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Military Probing Abuse of Power by Top Gitmo Brass

[JURIST] The U.S. Air Force is conducting an ethics investigation of Air Force Brig. Gen. Thomas Hartmann over allegations that he abused his power and inappropriately influenced the prosecution of enemy combatants at Guantanamo Bay, military officials said Saturday. Hartmann was the legal advisor to the U.S. military commissions at Guantanamo and supervisor of the Office of Military Commissions-Prosecution (OMC-P) until he was reassigned to the position of director of operations of the Office of Military Commissions last month. It has been alleged that Hartmann forced officials at Guantanamo to bring prosecution cases before they were ready, prosecuted an individual on charges that were unwarranted, and that he tried to get prosecutors to use coerced evidence notwithstanding their objections. The Air Force is also investigating complaints by two military officials that Hartmann exhibited abusive and retaliatory behavior towards them within the Office of Military Commissions. The Los Angeles Times has more. AP has additional coverage.

Earlier this year military judges presiding over the trials of Guantanamo detainees Omar Khadr, Mohammed Jawad and Salim Ahmed Hamdan barred Hartmann from taking any part in the trials of those detainees on grounds that he was unduly biased towards the prosecution. U.S. Army Gen. Gregory Zanetti, deputy commander at Guantanamo Bay, testified in August that Hartmann routinely bullied his counterparts and was inappropriately aggressive in seeking indictments against detainees. In October, newly resigned Guantanamo chief military prosecutor Col. Morris Davis said during his tenure Hartmann questioned the need for open trials and was upset with the slow pace of the proceedings begun by Davis.

Poland Investigating Claims of CIA Secret Prison

A spokesman for Polish Prime Minister Donald Tusk announced Friday that the Polish government is investigating claims that the U.S. Central Intelligence Agency (CIA) operated a secret prison in Poland. The prison was reportedly part of the CIA's extraordinary rendition program, under which terrorism suspects were seized and flown to secret locations outside the U.S. for interrogation and imprisonment. Prosecutors have reportedly obtained a memo written by Polish intelligence officials in either 2005 or 2006 that confirms the prison's existence. Reuters has more.

Poland and Romania have been accused of hosting secret prisons for the extraordinary rendition program. Allegations against the two countries came in a June 2007 report to the Council of Europe by Swiss Senator Dick Marty. The report concluded that numerous European governments had cooperated with the CIA program. In February 2007, the European Parliament condemned more than a dozen European states for their roles in the program. Several nations have been accused of obstructing European probes into the secret prison allegations, including Poland, which allegedly housed the largest CIA detention facility in Europe. President Bush acknowledged the existence of the secret facilities in September 2006 but provided no details on their location or operation.

Former Gitmo Prisoners Seeking Religious Rights and Protection from Torture for Prisoners Who Remain

British nationals and former Guantanamo Bay detainees Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal Al-Harith have petitioned the U.S. Supreme Court to hear a lawsuit in which they seek religious rights and protection from torture for those still at the facility. In the petition, docketed Monday, the men argue that a lower court's dismissal of their claims should be reversed after Boumediene v. Bush, in which the Court ruled that that detainees have the right to file habeas corpus petitions in federal court. The men argue that the Court should hear the case because of the gravity of the issues addressed and the claimed error of the lower court:

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DOJ Preparing to Charge Six Blackwater Guards in Nisour Square Massacre

The U.S. Justice Department has sent so-called target letters to six Blackwater Worldwide guards involved in the September 16 killings of 17 Iraqi civilians, the Washington Post reported Sunday. Sources told the Post that the letters, which provide an opportunity for the recipients to contest grand jury evidence, indicate the Justice Department will likely seek indictments against at least some of the guards under the Military Extraterritorial Jurisdiction Act (MEJA). Indictments against the Blackwater employees under the MEJA would mark the first time that State Department contractors were prosecuted under the Act, which allows criminal charges to be filed against contractors working for the Department of Defense. The sources explained that a final decision on whether to indict the men may not be made until October. The Washington Post has more.

The Blackwater incident caused domestic outrage in Iraq and has prompted legal controversy in the US. In November, the New York Times and the Washington Post reported that an FBI investigation into the incident concluded that the shootings were unjustified and last month Iraqi Foreign Minister Hoshyar Zebari announced that private security contractors operating in Iraq may be stripped of their immunity from prosecution under a U.S.-Iraqi agreement currently in negotiations. Advocacy group Human Rights First issued a report in January asserting that existing federal law is sufficient to prosecute private contractors using excessive violence in their overseas capacities, and that the U.S. government is to blame for failing to "develop a clear policy with respect to the accountability of private contractors for crimes in Iraq and Afghanistan." The report says that the MEJA could be extended to State Department contractors, but that the U.S. has failed to do so.

Mukasey Defends Torture Architects

U.S. Attorney General Michael Mukasey defended Bush administration attorneys who authored memoranda supporting the legality of coercive interrogating tactics -- the so-called "torture memos" -- in a commencement address to Boston College Law School graduates Friday. Emphasizing the legal complexity of the issues raised in the memos and criticizing the vilification of the authors in some quarters, Mukasey told the audience:

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An Independent Prosecutor Should Investigate the Architects of the White House Torture Policy

This is an excerpt from Marjorie Cohn's recent testimony before the U.S. House Judiciary Committee Subcommittee on the Constitution, Civil Rights and Civil Liberties

What does torture have in common with genocide, slavery, and wars of aggression? They are all jus cogens. That's Latin for "higher law" or "compelling law." This means that no country can ever pass a law that allows torture. There can be no immunity from criminal liability for violation of a jus cogens prohibition.

The United States has always prohibited torture in our Constitution, laws, executive statements, judicial decisions, and treaties. When the U.S. ratifies a treaty, it becomes part of American law under the Supremacy Clause of the Constitution.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, says, "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture."

Whether someone is a POW or not, he must always be treated humanely; there are no gaps in the Geneva Conventions.

The U.S. War Crimes Act, and 18 USC sections 818 and 3231, punish torture, willfully causing great suffering or serious injury to body or health, and inhuman, humiliating or degrading treatment.

The Torture Statute criminalizes the commission, attempt, or conspiracy to commit torture outside the United States.

The Constitution gives Congress the power to make laws and the President the duty to enforce them. Yet Bush, relying on memos by lawyers including John Yoo, announced the Geneva Conventions did not apply to alleged Taliban and Al Qaeda members. But torture and inhumane treatment are never allowed under our laws.

Justice Department lawyers wrote memos at the request of Bush officials to insulate them from prosecution for torture. In memos dated August 1, 2002 and March 14, 2003, John Yoo wrote the DOJ would not enforce U.S. laws against torture, assault, maiming and stalking, in the detention and interrogation of enemy combatants.

The maiming statute makes it a crime for someone "with the intent to torture, maim, or disfigure" to "cut, bite, or slit the nose, ear or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb, or any member of another person" or throw or pour upon another person any scalding water, corrosive acid, or caustic substance.

Yoo said, "just because the statute says -- that doesn't mean you have to do it." In a debate with Notre Dame Professor Doug Cassell, Yoo said there is no treaty that prohibits the President from torturing someone by crushing the testicles of the person's child. It depends on the President's motive, Yoo said, notwithstanding the absolute prohibition on torture.

Yoo twisted the law and redefined torture much more narrowly than the Torture Convention and the Torture Statute. Under Yoo's definition, you have to nearly kill the person to constitute torture.

Yoo wrote that self-defense or necessity could be defenses to war crimes prosecutions, notwithstanding the Torture Convention's absolute prohibition against torture in all circumstances.

After the August 1, 2002 memo was made public, the DOJ knew it was indefensible. It was withdrawn as of June 1, 2004, and a new opinion, dated December 30, 2004, specifically rejected Yoo's definition of torture, and admitted that a defendant's motives to protect national security won't shield him from prosecution. The rescission of the prior memo is an admission by the DOJ that the legal reasoning was wrong. But for the 22 months it was in effect, it sanctioned and caused the torture of myriad prisoners.

Yoo and other DOJ lawyers were part of a common plan to violate U.S. and international laws outlawing torture. It was reasonably foreseeable their advice would result in great physical or mental harm or death to many detainees. Indeed, more than 100 have died, many from torture. Yoo admitted recently he knew interrogators would take action based on what he advised.

Dick Cheney, Condoleezza Rice, Donald Rumsfeld, Colin Powell, George Tenet, and John Ashcroft met in the White House and micromanaged the torture by approving specific torture techniques such as waterboarding. Bush admitted he knew and approved of their actions.

They are all liable under the War Crimes Act and the Torture Statute. Under the doctrine of command responsibility, commanders, all the way up the chain of command to the commander in chief, are liable for war crimes if they knew or should have known their subordinates would commit them, and they did nothing to stop or prevent it. The Bush officials ordered the torture after seeking legal cover from their lawyers.

The President can no more order the commission of torture than he can order the commission of genocide, or establish a system of slavery, or wage a war of aggression.

A Select Committee of Congress should launch an immediate and thorough investigation of the circumstances under which torture was authorized and rationalized. The high officials of our government, and the lawyers who advised them, should be investigated and prosecuted by a Special Prosecutor, independent of the Justice Department, for their roles in misusing the rule of law and legal analysis to justify torture and other crimes in flagrant violation of our laws.

Top Pentagon Legal Adviser Disqualified From Gitmo Trial

A U.S. military judge has ruled that U.S. Air Force Reserve Brig. Gen. Thomas Hartmann, a top Pentagon legal adviser on the Guantanamo military commission trials, is ineligible to participate in the first military commission trial of a detainee because he is too closely associated with the prosecution, the New York Times reported Saturday. The Times said it had a copy of the decision by Navy Capt. Keith Allred, although it had not been publicly released. The paper quoted Allred as concluding that "National attention focused on this dispute has seriously called into question the legal adviser's ability to continue to perform his duties in a neutral and objective manner". Hartmann is legal adviser to Susan J. Crawford, the Convening Authority for the military commissions. The New York Times has more.

Earlier this year former Guantanamo prosecutor Air Force Col. Morris D. Davis made headlines when he said in the wake of his resignation that Hartmann had questioned the need for open trials at Guantanamo and was upset with the slow pace of the proceedings begun by Davis. In a subsequent Los Angeles Timesop-ed, Hartman said that the slow progress that frustrated Davis was an unavoidable part of a careful judicial process and rejected Davis' allegations that aspects of the military commissions were being intentionally hidden from the public. Last month, Davis testified at a pre-trial hearing for Guantanamo detainee Salim Hamdan that Hartmann had pressured him to move forward with military commissions quickly "before the election" or else "this thing's going to implode."

Georgia Wastes No Time in Starting to Kill its Prisoners Again

A Georgia court has scheduled the execution of a convicted killer after the U.S. Supreme Court last week upheld Kentucky's lethal injection protocol, ending a de facto national moratorium on the death penalty. William Earl Lynd, who was convicted of the 1988 murder of his girlfriend, is scheduled to be executed during on May 6, according to Wednesday media reports. If the execution takes place as scheduled, it will be the first execution since the Supreme Court's ruling. Reuters has more. AP has additional coverage.

In September 2007, the Supreme Court granted certiorari in Baze v. Rees, allowing it to consider whether the three-drug lethal injection cocktail used in most states violates the Eighth Amendment's prohibition on cruel and unusual punishment. This led to an effective moratorium on the death penalty in the United States as many federal courts, state courts, and state governors put executions on hold pending the high court's ruling. Several other U.S. states have already announced that they will resume executions by lethal injection. The Georgia Supreme court had previously stayed the execution of another condemned inmate while Baze v. Rees was pending before the U.S. Supreme Court.

Government to Collect DNA Samples From All Federal Arrestees

The U.S. government will begin collecting DNA samples from every person arrested under federal laws, a Department of Justice spokesman said Wednesday. Federal agencies are authorized to collect DNA samples under a 2006 amendment to the Violence Against Women Act, but previously had only collected DNA from people actually convicted of federal crimes. About 1.2 million additional people could be added to the FBI's Combined DNA Indexing System (CODIS) every year under the expansion, although people who are not convicted can request the destruction of their DNA samples. Supporters of the new measures say the expanded database will help prevent crime, but civil rights groups have expressed privacy concerns. The law will soon be published in the Federal Register and will then be subject to a 30-day comment period. AP has more.

Thirteen states have implemented policies similar to the new federal policy. In November 2007, The U.S. Court of Appeals for the Ninth Circuit ruled that all convicted federal felons must provide DNA samples to a federal database available to police departments throughout the country. In 2005, the Third Circuit ruled that a convicted bank robber had to submit DNA samples to CODIS. A New Jersey state appeals court upheld a comparable state law in 2005.

Why Is Mukasey Trying to Derail the State Secrets Bill?

U.S. Attorney General Michael Mukasey told Senate Judiciary Committee Chairman Patrick Leahy (D-VT) in a letter Monday that the State Secrets Protection Act currently before Congress, introduced by committee leaders to enact a "safe, fair, and responsible" state secrets privilege, would needlessly and improperly interfere with the appropriate constitutional role of both the Judicial and Executive branches in state secrets cases; would alter decades of settled case law; and would likely result in the harmful disclosure of national security information that would not be disclosed under current doctrine.

He noted that President George W. Bush would likely veto the bill in its present form.

In February, the committee held a hearing on the bill, specifically meant to curb the use of the state secrets privilege in lawsuits involving the federal government that may reveal government misconduct. The Bush administration has frequently invoked the privilege, a Constitutional protection, in cases accusing the U.S. government of extraordinary rendition, torture in interrogation of terrorists, and the NSA domestic surveillance program.

Pentagon Official Who Spoke of Rigging Gitmo Trials Resigns

Pentagon General Counsel William J. Haynes II will resign his position with the U.S. Department of Defense next month, according to an announcement from the DOD Monday. Secretary of Defense Robert Gates commented that Haynes' tenure as D.O.D. general counsel was the longest in US history. Principal Deputy General Counsel Daniel Dell'Orto will serve as acting general counsel after Haynes' departure.

Haynes leaves the Department of Defense less than five months after former Guantanamo Bay chief military prosecutor Col. Morris Davis resigned his position citing political pressure from the Defense Department. In an interview with The Nation last week, Davis implied the tribunal process may be rigged, saying that Haynes had told him none of the detainees could be acquitted. President George W. Bush nominated Haynes for a federal appeals court judgeship multiple times since 2003, but the nomination was never approved by the Senate and was eventually withdrawn in 2007. Haynes' nomination met resistance in part over his role in helping to draft the Defense Department's detention and interrogation policies after September 11th.

Gitmo Ex-Prosecutor to Testify for Defense in Military Trial

Former Guantanamo Bay chief military prosecutor Col. Morris Davis told the AP Thursday that he has agreed to appear as a defense witness in the military commission trial of Guantanamo detainee Salim Ahmed Hamdan. In October 2007, Davis resigned from his position at Guantanamo Bay, saying that politics were interfering with the prosecutions process. In a Wednesday interview with The Nation, Morris alleged that Pentagon general counsel William Haynes told him that none of the detainees could be acquitted, implying that the tribunal process may be rigged. Hamdan's lawyers plan to argue at a preliminary hearing in April that this alleged political interference violates the rules governing war crimes trials established by the 2006 Military Commissions Act. AP has more.

In October 2007, Davis told the New York Times that he was pressured to use classified evidence against defendants in closed war crimes trials for detainees. Also in October, Davis said in an interview with the Wall Street Journal that Guantanamo prosecutions were becoming politicized. Davis said that recently approved rules governing prosecutions at Guantanamo Bay result in the chief prosecutor reporting [PDF memo text] via the Legal Advisor to the Convening Authority to the Pentagon general counsel [PDF memo text], a presidential appointee. Davis said he filed an internal complaint about this structure, but the complaint was rejected.

Bush Ignores the Law Against Using Evidence Obtained from Torture in Gitmo Trials

The Bush administration has announced its intention to try six alleged al Qaeda members at Guantánamo under the Military Commissions Act. That Act forbids the admission of evidence extracted by torture, although it permits evidence obtained by cruel, inhuman or degrading treatment if it was secured before December 30, 2005. Thus, the administration would be forbidden from relying on evidence obtained by waterboarding, if waterboarding constitutes torture.

That's one reason Attorney General Michael Mukasey refuses to admit waterboarding is torture. The other is that torture is considered a war crime under the U.S. War Crimes Act. Mukasey would be calling Dick Cheney a war criminal if the former admitted waterboarding is torture. Lawrence Wilkerson, Colin Powell's former chief of staff, has said on National Public Radio that the policies that led to the torture and abuse of prisoners emanated from the Vice President's office.

The federal government is working overtime to try and clean up the legal mess made by the use of illegal interrogation methods. In a thinly-veiled attempt to sanitize the Guantánamo trials, the Department of Justice and the Pentagon instituted an extensive program to re-interview the prisoners who have undergone abusive interrogations, this time with "clean teams." For example, if a prisoner implicated one of the defendants during an interrogation using waterboarding, the government will now re-interrogate that prisoner without waterboarding and get the same information. Then they will say the information was secured humanely. This attempt to wipe the slate clean is a farce and a sham.

In Brady v. Maryland, the US Supreme Court held that a prosecutor has a duty to give criminal defendants all evidence that might tend to exonerate them. Yet the CIA admitted destroying several hundred hours of videotapes depicting interrogations of Abu Zubaydah and Abd al-Ramin al-Nashiri, which likely included waterboarding. The administration claims Abu Zubaydah led them to Khalid Sheikh Mohammed, one of the defendants facing trial in the military commissions. So the government has destroyed potentially exonerating evidence. Moreover, the CIA's "enhanced interrogation techniques" are classified so they can be kept secret from the defendants, and CIA agents cannot be compelled to testify or produce evidence of torture.

A report just released by Seton Hall Law Center for Policy and Research reveals more than 24,000 interrogations have been conducted at Guantánamo since 2002 and every interrogation was videotaped. Many of these interrogations were abusive. "One Government document, for instance, reports detainee treatment so violent as to "shake the camera in the interrogation room" and "cause severe internal injury," the report says.

The Military Commissions Act contains other provisions that deny the defendants basic due process. It allows a trial to continue in the absence of the accused, places the power to appoint judges in the hands of the Secretary of Defense, permits the introduction of hearsay and evidence obtained without a warrant, and denies the accused the right to see all of the evidence against him. Defense attorneys are not allowed to meet their clients without governmental monitoring, and all of their notes and mail must be handed over to the military.

Will the U.S. Supreme Court be able to rectify the situation of abusive interrogations if and when a case comes before it? Not if Justice Antonin Scalia has his way. Once again, Scalia is acting as a loyal foot soldier in the President's "war on terror." In a BBC interview that aired this week, Scalia defended the use of torture to extract information from prisoners in some cases.

Scalia's remarks mean he has prejudged the issues in future cases in which the Constitution might dictate the suppression of evidence because of illegal police interrogation techniques, or the right to compensation of a person whose civil rights have been violated. Justice Scalia should recuse himself from any case that presents these issues. Bush is meanwhile threatening to veto a bill Congress passed that would forbid the CIA from subjecting prisoners to interrogation techniques banned by the U.S. Army Field Manual. John McCain, the tortured POW who led the charge in 2005 against cruel treatment, has now hitched his wagon to Bush's star. Presidential candidate McCain voted to allow the CIA to continue to ply its cruelty.

When Bush vetoes the bill, Congress should stand firm for the rule of law and basic standards of human decency and override his veto. Dick Cheney and other officials who participated in formulating the abusive interrogation policies should be investigated under the U.S. War Crimes Act. And the Democratic-controlled Congress should repeal the Military Commissions Act that Bush rammed through the Republican-controlled Congress.

Federal Court Throws Out Torture Lawsuit

The U.S. District Court for the Northern District of California dismissed a lawsuit against Jeppesen Dataplan Wednesday, ruling in favor of the U.S. government's motion to dismiss on state secret grounds. The U.S. Department of Justice had argued that the lawsuit, brought by the American Civil Liberties Union over Jeppesen's alleged role in the CIA's extraordinary rendition program, poses a risk to national security. The ACLU argued against the motion, saying that since the rendition program has already been made public, national security concerns are outweighed. The court held that because the lawsuit was based on alleged covert operations by the government, the subject matter itself is state secret and must be dismissed.

The ACLU filed the lawsuit last May, alleging that Jeppesen, a subsidiary of Boeing, knowingly supported direct flights to secret CIA prisons, facilitating the torture and mistreatment of U.S. detainees. The ACLU alleges that Jeppesen played a key role in the extraordinary rendition flights by providing a number of vital services including itinerary, route, weather, and fuel planning, as well as obtaining over-flight and landing permits from foreign governments. The ACLU was originally representing three of the five plaintiffs: Binyam Muhammad, currently being detained at Guantanamo Bay, Elkassim Britel, currently in a Moroccan prison, and Agiza, currently in an Egyptian prison. The two additional plaintiffs, who have alleged they were kidnapped by the CIA and tortured in Afghanistan, joined the lawsuit in August.

Reuters has more.

Torturous Contradictions

The April 2004 publication of grotesque photographs of naked Iraqis piled on top of each other, forced to masturbate, and led around on leashes like dogs, sent shock waves around the world. George W. Bush declared, "I shared a deep disgust that those prisoners were treated the way they were treated." Yet less than a year later, his Justice Department issued a secret opinion endorsing the harshest techniques the CIA has ever used, according to a report in the New York Times. These include head slapping, frigid temperatures, and water boarding, in which the subject is made to feel he is drowning. Water boarding is widely considered a torture technique. Once again, Bush is compelled to issue a denial. "This government does not torture people," he insisted.

This was not the first time the Bush administration had officially endorsed torture, however. John Yoo, writing for the Justice Department's Office of Legal Counsel, penned an August 2002 memorandum that rewrote the legal definition of torture to require the equivalent of organ failure. This memo violated the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a treaty the United States ratified, and therefore part of U.S. law under the Supremacy Clause of the Constitution.

In December 2002, former Secretary of Defense Donald Rumsfeld approved interrogation methods that included the use of dogs, hooding, stress positions, isolation for up to 30 days, 20-hour interrogations, deprivation of light and sound, and water boarding. U.S. Navy General Counsel Alberto Mora told William Haynes, the Pentagon's general counsel, that Rumsfeld's "authorized interrogation techniques could rise to the level of torture." As a result, Rumsfeld rescinded some methods but reserved the right to approve others, including water boarding, on a case-by-case basis.

When Bush maintained last week that his government doesn't torture prisoners, he stressed the necessity of interrogation to "protect the American people." Notwithstanding the myth perpetuated by shows like "24," however, torture doesn't work. Experts agree that people who are tortured will say anything to make the torture stop.

One of the first victims of the Bush administration's 2002 torture policy was Abu Zubaydah, whom they called "chief of operations" for al Qaeda and bin Laden's "number three man." He was repeatedly tortured at the secret CIA "black sites." They water boarded him, withheld his medication, threatened him with impending death, and bombarded him with continuous deafening noise and harsh lights.

But Zubaydah wasn't a top al Qaeda leader. Dan Coleman, one of the FBI's leading experts on al Qaeda, said of Zubaydah, "He knew very little about real operations, or strategy ... He was expendable, you know, the greeter ... Joe Louis in the lobby of Caeser's Palace, shaking hands." Moreover, Zubaydah was schizophrenic; according to Coleman, "This guy is insane, certifiable split personality." Coleman's views were echoed at the top levels of the CIA and were communicated to Bush and Cheney. But Bush scolded CIA director George Tenet, saying, "I said [Zubaydah] was important. You're not going to let me lose face on this, are you?" Zubaydah's minor role in al Qaeda and his apparent insanity were kept secret.

In response to the torture, Zubaydah told his interrogators about myriad terrorist targets al Qaeda had in its sights: the Brooklyn Bridge, the Statute of Liberty, shopping malls, banks, supermarkets, water systems, nuclear plants, and apartment buildings. Al Qaeda was close to building a crude nuclear bomb, Zubaydah reported. None of this was corroborated but the Bush gang reacted to each report zealously.

Moreover, Khalid Sheikh Mohammed, considered the mastermind of the September 11 attacks, was tortured so severely -- including by water boarding -- that the information he provided is virtually worthless. A potentially rich source of intelligence was lost as a result of the torture.

Bush's insistence that his administration doesn't torture rings hollow. He lied about weapons of mass destruction and a Saddam-al Qaeda connection in Iraq. He lied when he assured us his officials would not wiretap without warrants. As evidence of secret memos detailing harsh interrogation policies continues to emerge, we can't believe Bush's denials about torture.

Democrats in Congress have demanded they be allowed to see the memos, but Bush said the interrogation methods have been "fully disclosed to appropriate members of Congress." Senator John D. Rockefeller IV was unmoved. "I'm tired of these games," he said. "They can't say that Congress has been fully briefed while refusing to turn over key documents used to justify the legality of the program."

It is incumbent upon the Senate Judiciary Committee to vigorously interrogate Michael Mukasey during his attorney general confirmation hearing. As AG, Mukasey would oversee the department that writes interrogation policy. Mukasey should know that the Convention Against Torture prohibits torture in all circumstances, even in times of war.

Torture is a war crime. Those who commit or order torture can be convicted under the U.S. War Crimes Statute. Techniques that don't rise to the level of torture but constitute cruel, inhuman or degrading treatment or punishment also violate U.S. law. Congress should provide for the appointment of a special independent counsel to fully investigate and prosecute all who are complicit in the torture of prisoners in U.S. custody.

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