First Published: 2009-05-21

It's still torture, stupid!

Analysts expect US torturers to be brought to justice in long run despite current delays, setbacks.


Middle East Online

By Amy Goodman - NEW YORK

Philippe Sands and Jane Mayer

Im joined by two people who have been closely following the Bush administrations treatment of prisoners held overseas and helped expose many of its facets. Philippe Sands is a British attorney and professor at University College London, the author of the book Torture Team: Rumsfelds Memo and the Betrayal of American Values. The book uncovered the role of US government lawyers in authorizing torture. Its cited as a key influence by the Spanish lawyer prosecuting the case against the six Bush administration lawyers.

Im also joined by New Yorker staff writer Jane Mayer. She is the author of The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals, for which she recently won the Ridenhour Book Prize and the New York Public Librarys Helen Bernstein Book Award for Excellence in Journalism.

We welcome you both to Democracy Now! I wanted to start off on the issue of the Spanish parliament, actually just in the last hours, yesterday, sayingwell, Philippe Sands, maybe you can explain it, because its been hard to understand where Spain stands on this issue and on their crusading judge, Baltasar Garzon.

PHILIPPE SANDS: Well, Spains law has basically allowed its criminal courts to investigate international crimes such as torture and other international abuses for many years. That was the basis, of course, for the case brought against Senator Pinochet a decade or so ago.

The decision yesterday is merely a recommendation by the parliament to change the law and to limit its application to situations in which Spaniards are involved or the perpetrators are present on Spanish soil. Its, as I understand it, only prospective; it only looks to the future, and so it has no effect on existing investigations.

But more to the point, in any event, the case brought against the Bush Six, the cases that Judges Velasco and Baltasar Garzon are looking at, do indeed involve individuals either of Spanish nationality or Spanish residency, so I dont think this will have any effect for ongoing proceedings.

AMY GOODMAN: What about this pressure thats being brought on the Spanish parliament and on everyone in Spain right now?

PHILIPPE SANDS: I think it may actually not be the case which is being investigated in relation to the Bush Six and the Guantanamo abuses, but the Israeli investigation, which has been undergoingunderway for some considerable period of time, and that has caused tremendous pressure to be brought to bear on the Spanish government from the Israeli government. And Im not sure, to be honest

AMY GOODMAN: And that investigation is?

PHILIPPE SANDS: That investigation concerns abuses in Gaza and other occupied territories. And Im not surewhat Im not hearing is that there is any huge pressure from the Obama administration in relation to these issues. There have been high-level conversations and discussions. The criminal investigation is underway. The Spanish judges have sent what are called letters rogatory asking questions to the US Department of Justice. The Attorney General, Mr. Holder, has said he will treat those seriously and look at them properly.

AMY GOODMAN: Well, lets look at the Spanish case here, the six people and who they are and where they come from in the Bush administration.

PHILIPPE SANDS: Well, the Bush Six, amazingly and coincidentally, are the same six lawyers I happen to have focused on. And in that sense, I think the book contributed to a catalyzing effect.

The lawyers that youve got, in no particular order of significance: Alberto Gonzales, the former Attorney General and White House counsel; David Addington, who was Vice President Cheneys counsel; Jay Bybee, whos been very much in the news recently in relation to the second of his memos which has come out; John Yoo, who probably wrote large parts of that memo, still teaching at Berkeley Law School; Doug Feith, who was the number three in the Pentagon; and finally, Jim Haynes, who was Mr. Rumsfelds lawyer as general counsel.

I dont think any of those individuals are going to be taking vacations in Tuscany in the foreseeable future.

AMY GOODMAN: I wanted to go to Feith. You interviewed Feith, actually; is that right?

PHILIPPE SANDS: I did. And you can


PHILIPPE SANDS: Well, I interviewed him in December 2006. I recorded the interview. Ive produced a transcript of the interview. Ive put it on the website of Vanity Fair magazine, so its available for all to see. People can form their own view.

He, during the course of that interview, confirmed the significance of the decision on the Geneva Conventions, that none of the detainees at Guantanamo could have rights under it, as a basis for moving forward, if you like, on harsher techniques.

And he, amazingly, when I first met him, denied that hed had any role in the interrogation issues. I pointed out to him, when I was with him, that his name appeared on the actual memorandum signed by Donald Rumsfeld authorizing new techniques of interrogation. He changed his tune. But weve seen, more recently, other documents emerge, the Senate Armed Services Committee emerge, placing him really at the center of the whole operation.

AMY GOODMAN: Former Under Secretary of Defense Douglas Feith, one of these six lawyers named in the Spanish complaint, denies, as you said, directing the Bush administrations torture policy. Well, an interview on The OReilly Factor on Fox earlier this year, Feith also criticized your work, Philippe Sands.

DOUGLAS FEITH: First of all, what I understand about the allegations about me, personally, I happen to know are just backwards, and theyIm being criticized for a position that I never advocated. And so, the facts are just wrong.

But theres also a broader point of principle here, which is, what the Spanish authorities are considering doing is indicting people in theformer US government officials for giving advice to the President. And the idea that a foreign official can disagree with advice given to the Presidenttheyre not talking about action, and theyre not even talking about directing people to take action. Theyre talking about people who were advising the President.

Whats going on in Spain is implementing, essentially, an idea that a British lawyer has been proposing, a guy named Philippe Sands, who wrote an extremely dishonest book on the subject. So I knew that he was going around, and some other people were going around, trying to find somebody in Europe who could bring indictments.

AMY GOODMAN: Thats Douglas Feith. Philippe Sands?

PHILIPPE SANDS: He isand hes every authors best publicist, because being on the OReilly show in that way, of course, is wonderful for an unknown British lawyer.

I have, as you know, recently published the paperback edition of the book. Ive not changed a single word in relation to what I wrote about Mr. Feith. I stand by every word.

He has obvious concerns. He needs to set the record straight, in his view, to avoid investigations that are underway. Hes also subject to a disbarment application, I think, thats been initiated this week. I think he faces very considerable difficulty. And Im perfectly content to debate him at any time or any place, and Im perfectly happy for him to make those allegations. Theyre really without any foundation at all.

AMY GOODMAN: And, Jane Mayer, the other members of the Bush Six, this grouping that have beenthat the Spanish judge, Baltasar Garzon, is going after, where are they? Whats happening with them?

JANE MAYER: Well, various things. David Addington has actually not been heard from for quite some time. So

AMY GOODMAN: And his position was?

JANE MAYER: His position was the lawyer to Vice President Cheney and then the Chief of Staff to Vice President Cheney. And he was a very forceful character who really helped shape thewhat they called the new paradigm, this whole legal understanding that put certain terror suspects outside the rule of law. He was very important in shaping that.

You know, some of the others, as mentioned, John Yoo is teaching at Boalt Hall in Berkeley. Hes got a full course schedule for the fall, so I think hes coming back. And I think Alberto Gonzales is still looking for a job, from what Ive heard.

I mean, thesethey area cloud hangs over this group. And it obviously doesnt help their reputations to have been named in this case in Spain. They are in the midst of a sort of a growing political furor over their role. And I think that it will be clarified somewhatthat is, their rolewhen the Justice Department has a study thats coming out very soon. Its an investigation into whether the lawyers could be faulted for justifying Americas embrace of torture. They basically made it possible, by coming up with decisions that said that these kinds of techniques could be legal. And the Justice Department has been spending five years looking at their role and is due to release a report possibly at the end of this month.

AMY GOODMAN: My question to you, Philippe Sands, isso, youre talking about, and, Jane, youre talking about, these six people being afraid to travel abroad probably. But what about here at home? Why can they travel freely here?

PHILIPPE SANDS: Well, I think that theres a big issue here. I mean, Ive always thought that foreign investigations are not an end in themselves; theyre a means to an end, and it really must be for the United States to sort this out. Ive testified on several occasions before House Judiciary and Senate Judiciary, and Ive said on every occasion my deepest wish is for the United States to sort this out. That is only, I think, at an early stage of beginning to happen.

President Obama seems very torn. Does he want to be a rule-of-law guy? Does he want to be a move-on, realpolitik sort of guy? And he cuts and turns in different directions. I think he may be playing the long game. I think it is inevitable; there will have to be some sort of investigation in the United States.

The big question becomes, what sort of investigation? Jane has mentioned the Office of Professional Responsibility at the Department of Justice, which will produce, I think, a report very shortly, which will be very significant.

AMY GOODMAN: And whos leading this report, Jane?

JANE MAYER: Who is leading it?

AMY GOODMAN: Yeah, who is doing this investigation? Whos heading it up?

JANE MAYER: Well, it was done by non-political experts, who are basically the watchdogs of the lawyers inside the Justice Department. And it will be released by Eric Holder, the Attorney General.

AMY GOODMAN: And the issue of the Bush Six, theyre from a certain sector of the Bush administration. Theres no one in the military. Theres no one in the CIA. Why not? And also, it doesnt go up the chain of command.

PHILIPPE SANDS: I think that thats a very important question. I focused on the lawyers, because I am a lawyer, and I really, as I think Ive said to you before when Ive talked with you, couldnt understand how lawyers, who had been to the finest law schools in the United States, could approve torture, which is what they did. And so, I focused on them for that reason.

But I focused on them also for another tactical reason. I never imagined that so soon there would be so much scrutiny in the United States. It didnt really occur to me that it would be possible to really put these issues under the spotlight. And if it did happen, I didnt think it could happen in relation to a former vice president or a former secretary of defense or a former president. So I focused on the next tier down. The key point is, they were enablers. But for the lawyers, none of this would have happened.

But at the end of the day, the key people are those who actually signed off on the decisions, right at the very highest echelons of government. And we now know thats not just the Vice President, its not just the President, its not just Rumsfeld. Theres new material that has come out to indicate that Condoleezza Rice may have had a role in all of this. She has said, of course, she didnt take the decision; she merely communicated the decision. Im not sure that theres much of a distinction to be drawn there. But it goes very high.

AMY GOODMAN: What is the evidence there?

PHILIPPE SANDS: Well, the evidence is one of the new documents that has emerged, which has had very little play here. Its a chronology that is produced by the Intelligence Committee of the Senate in January of this year, detailing the circumstances in which the two torture memos, written by John Yoo, signed by Jay Bybee, were produced on the 1st of August, 2002. And that document was put out recently by Eric Holder, the Attorney General, who I think is very committed to getting to the root of what went wrong and what happened. And that document identifies two meetings that held inwere held in July 2002 and identifies by office, but not by name, the individuals who basically, it says, approved waterboarding at those meetings. And it included in the list of names Condoleezza Rice. That is pretty powerful evidence.

AMY GOODMAN: Jane Mayer, want to add to that?

JANE MAYER: Well, no. I mean, weve seen that shes been struggling recently to answer questions in Stanford University and then a fourth grader put some questions to her at one point. And shes having a very hard time explaining herself.

This is, you know, I meananyway, I think that, to me, whats interesting is this is not going away. There seems to be a hope within the Obama administration that they could somehow move on, put this behind them. And what were seeing is its not really containable politically. Theyre going to have to deal with it somehow.

AMY GOODMAN: I wanted to go to former Vice President Dick Cheney, who has been on the airwaves quite a bit in the past few weeks right now. This is a SOT, a clip, of Vice President Cheney. He has been defending the Bush administrations torture of prisoners held overseas. He was appearing on CBSs Face the Nation last week, fiercely defending the techniques he authorized, but denied they amounted to torture. He also called for the CIA to release full records of prisoner interrogations to prove Bush administration torture tactics yielded valuable intelligence. He was questioned by CBSs Bob Schieffer.

BOB SCHIEFFER: Other people in the administration say, as a matter of fact, what we found out using these methodsand I mean, lets call things what they arewaterboarding was one of the techniques that were usedthat they really didnt get all that much from that. You say they did.

DICK CHENEY: I say they did. Four former directors of the Central Intelligence Agency say they did, bipartisan basis. Release the memos. And we can look and see for yourself what was produced.

BOB SCHIEFFER: Well, Mr. Vice President, let me ask you this. I mean, Im not asking you to violate any rules of classification, but is there anything you can tell us specifically that those memos would tell us? I mean, some information we gleaned, some fact that we got that we wouldnt have gotten otherwise?

DICK CHENEY: What it shows is that, overwhelmingly, the process we had in place produced from certain key individuals, such as Khalid Sheikh Mohammed and Abu Zubaydah, two of the three who were waterboardedand Khalid Sheikh Mohammed is the man who killed 3,000 Americans on 9/11, blew up the World Trade Center, attacked the Pentagon, tried to blow up the White House or the Capitol building, an evil, evil man thats been in our custody since March of 03. He did not cooperate fully, in terms of interrogations, until after waterboarding. Once we went through that process, he produced vast quantities of invaluable information about al-Qaeda.

BOB SCHIEFFER: What do you say to those, Mr. Vice President, who say that when we employ these kind of tactics, which are, after all, the tactics that the other side uses, that when we adopt their methods, that were weakening security, not enhancing security, because it sort of makes a mockery of what we tell the rest of the world?

DICK CHENEY: Well, then youd have to say that, in effect, were prepared to sacrifice American lives rather than run an intelligent interrogation program that would provide us the information we need to protect America.

The fact of the matter is, these techniques that were talking about are used on our own people. Wein a SERE program that, in effect, trains our people with respect to capture and evasion, and so forth, and escape. A lot of them go through these samesame exact procedures.



BOB SCHIEFFER: Is what youre saying here is that we should do anything if we could get information?

DICK CHENEY: No. Remember what happened here, Bob. We had captured these people. We had pursued interrogation in a more normal way. We decided that we needed some enhanced techniques. So we went to the Justice Department. And the controversy has arisen over the opinions written by the Justice Department.

The reason we went to the Justice Department wasnt because we felt we were going to take some kind of free-hand assault on these people or that we were in the torture business. We werent. And specifically, what we got from the Office of Legal Counsel were legal memos that laid out whats appropriate and whats not appropriate, in light of our international commitments. If we had been about torture, we wouldnt have wasted our time going to the Justice Department.

AMY GOODMAN: Thats former Vice President Dick Cheney speaking to Bob Schieffer on CBSs Face the Nation. Philippe Sands?

PHILIPPE SANDS: The manlets face it, lets call a spade a spadeis a torturer. And he should face what torturers should face: namely, a full criminal investigation. Waterboarding is torture. There are no ifs and buts.

I see that clip, and I see him rewriting history. What I show conclusively in the book, what we now know, is that the legal memos followed the fixation of a policy. In other words, the law followed the policy. The policy was to move to abuse. They found the small group of lawyers who could be relied upon to sign off on the dotted line. And that is what happened. That is now clearly established. And that is why the lawyers are in the dark.

And I find it astonishing and deeply sad that a former vice president of this country can still take to the airwaves and make those sorts of arguments, arguments that plays into the hands of foreign nations. I mean, if theyve got memos saying these things can be done by the United States against others, then why cant others use the same memos to do the same thing against US citizens? Its absolutely shocking, and it is astonishing that the airwaves continue to give him the type of space to make these types of statements.

JANE MAYER: Its alsoI mean, one thing thats interesting

AMY GOODMAN: Jane Mayer.

JANE MAYER: to me is its a false premise, if you actually know the details of these cases. And no matter how much data has come out, it seems that Vice President Cheney is impervious to the facts, which are, as we heard, when there were hearings in Congress the week before last, Ali Soufan, the FBI agent who was at the side of Abu Zubaydah and trying to interrogate him, said they were getting good information out of him simply by talking to him, simply by being knowledgeable about the culture that they were questioning him about. And that work

AMY GOODMAN: Lets go to a clip


AMY GOODMAN: of Ali Soufan.


AMY GOODMAN: Last weeks Senate Judiciary Committee hearing on the interrogation of foreign prisoners. This is the former FBI agent, Ali Soufan, testifying. Hes behind a wooden screen. Hes calling the Bush administrations so-called enhanced interrogation techniques slow, ineffective, unreliable and harmful.

ALI SOUFAN: From my experience, I strongly believe that it is a mistake to use what has become known as enhanced interrogation techniques, a position shared by professional operatives, including CIA officers who were present at the initial phases of the Abu Zubaydah interrogation. These techniques, from an operational perspective, are slow, ineffective, unreliable and harmful to our efforts to defeat al-Qaeda.

A major problem is itit is ineffective. Al-Qaeda are trained to resist torture. As we see from the recently released DOJ memos on interrogation, the contractors had to keep requesting authorization to use harsher and harsher methods.

In the case of Abu Zubaydah, that continued for several months, right til waterboarding was introduced. And waterboarding itself had to be used eighty-three times, an indication that Abu Zubaydah had already called his interrogators bluff. In contrast, when we interrogated him using intelligent interrogation methods, within the first hour we gained important actionable intelligence.

This amateurish technique is harmful to our long-term strategy and interests. It plays into the enemys handbook.

AMY GOODMAN: Ali Soufan, the former FBI agent, testifying behind a wooden screen in Congress. Jane Mayer?

JANE MAYER: I mean, and so, what you have here is an eyewitness whos contradicting the Vice President of the United States. The Vice President was not there. The eyewitness who was said we didnt need to use these torture techniques.

And whats interesting is, it wasnt just the FBI agent Ali Soufan; there is a report that, in the New York Times, that the CIA officers who were there also opposed ramping up these techniques, and they wanted to stop. They wanted to stop using techniques that they thought were inhumane on Abu Zubaydah, and they were ordered to keep going by the political people back in Washington.

So, youve got people who are not at the scene who are making these decisions and counter-commanding the people who were at the scene, who really know something about what was going on.

AMY GOODMAN: And explain the sequence, from the FBI interrogating Zubaydah to the CIA doing it, why that happened.

JANE MAYER: Well, the FBIAli Soufan is one of the most knowledgeable counterterrorism officers in America. Hes fluent in Arabic, and hes been trying to fight al-Qaeda for years. And he was brought in to try to get some information out of Abu Zubaydah in legal ways. But the CIA was ordered to take Zubaydah and do things to him that Ali Soufan, at the scene, said he thought were criminal. We now know that he alsoand I described this in the bookhe sent up word through the chain of command to the top of the FBI, saying, I think that the CIA officers should be arrested at the scene, because of what they were doing.

AMY GOODMAN: Who was the CIA officer?

JANE MAYER: Well, we havent got the names here, but we know who was at the top of the agency. And it wouldnt have happened without the blessing of George Tenet, who was at the time the director. And so, at any rate, those techniques moved forward. And as we now know, as Ali Soufan says, they had to do this eighty-three times to Abu Zubaydah before they were satisfied.

AMY GOODMAN: The role of medical professionals. I was just on this many city tour, and I was in Spokane. We werent far from the American Legion building, where Mitchell Jessen is located, about a 120-person firm. Explain Mitchell Jessen, where it fits into this story, right to the latest torture memos that actually President Obama had posted online.

JANE MAYER: Yeah, and also whatwe just heard Vice President Cheney say, Oh, well, we didnt do anything to these people that we dont do to our own people in training. And he mentioned the SERE program, which is the training program where they take US soldiers who might possibly be taken captive by an immoral, unethical enemy that doesnt abide by any law, and they subject them to a little taste of what torture might be like.

That program, the SERE program, has psychologists who work in it and oversee the training in order to make sure that the soldiers dont freak out completely.

AMY GOODMAN: Survival, Evasion, Resistance

JANE MAYER: Survival, Evasion, Resistance and Escape is what the program is called, SERE.

And two of those military psychologists, James Mitchell and Bruce Jessen, got involved very early on in designing what became the United States interrogation program. What they did was they reverse-engineered. They took tactics that were designed by the Chinese communists, by the Stalinist show trials, by various tyrannical states, to get false confessions out of people. They took those techniques, and, amazingly, they became the template for what the United States started doing to people who were in our custody. So

AMY GOODMAN: I wanted to go now to the issue of Nancy Pelosi. Some unusual things have happened as a result of, well, the Republicans saying that she knew, that she was briefed. In fact, I think Newt Gingrich has just written a letter saying she should step down as the Speaker of the House. He was once the Speaker of the House and was forced to step down. But its going to an interesting issue, which is, the Republicans, of course, against a commission, an investigation, now theyre calling for it. The question is whether it will backfire.

But lets go to this question of who knew about the use of torture and when they knew it, a central question now, Republicans pointing to the House Speaker Nancy Pelosis involvement in the torture briefings, and not just the Republicans saying this. After the CIA released documents last week showing Pelosi was briefed on waterboarding back in September 2002, she insisted she was told waterboarding wasnt being used then and said secrecy rules forced her to remain silent when she learned more later.

REP. NANCY PELOSI: The CIA briefed me only once on enhanced interrogation techniques in September 2002 in my capacity as ranking member of the Intelligence Committee. I was informed then that the Department of Justice opinions had concluded that the use of enhanced interrogation techniques were legal. The only mention of waterboarding at that briefing was that it was not being employed.

AMY GOODMAN: Nancy Pelosi. Jane Mayer?

JANE MAYER: Well, you know, its interesting that it may result in pushing ahead the investigations. You know, the Republicans may have sort of stepped in it in a way. So, shes been calling for an independent investigation, as well. So whatever implication there is of her in this process, it hasnt stopped her from calling for an investigation.

AMY GOODMAN: And your sense of what she knew and when she knew it?

JANE MAYER: You know, I dont think any of us really knows exactly, but I do think it is completely possible that there were honest misunderstandings that took place in those briefings, because what the CIA said to many peopleand I dont know specifically what they said to Pelosi, but what they said again was, We are only doing to these detainees what we do to our own people in training. So it made it sound like it was relatively innocent to many people who did not understand the second part of this, which was what we do to our own people in training is we torture them. And so, it isI think many people who got these briefings had the failure of imagination to understand what was going on, or else they didnt really follow up and want to know. And I dont know what happened with her.

AMY GOODMAN: Were talking Bob Graham of Florida, the senator, Jay Rockefeller.

JANE MAYER: I was talking to Bob Graham. Bob Graham absolutely denies that he was told that Abu Zubaydah was going to be waterboarded. And he also says that the CIAs dates are wrong in describing when he was in these briefings. And he keeps, you know, quite famously, a diary of everything he ever does. So I went back and checked. You know, and theres sort of an interesting statement from the current CIA director about these briefings, where he basically said, You know, this was seven years ago, and were relying on peoples memories, and memories may be fallible, basically. Theres kind of a little wiggle room on all sides in this.

AMY GOODMAN: Are you surprised that the current CIA director is coming down so forcefully on this issue in defending the CIA? Its not as if he comes out of the CIA establishment.

JANE MAYER: You know, I think he has felt that its important to win the loyalty of the people inside the building. You know, thats what people tell me. And hes met a lot of them by now. And I guess thatsyou know, he seems to be taking that role.

AMY GOODMAN: Were going to break, and were going to come back. Were talking about Leon Panetta, who is also fellow California

JANE MAYER: That is true, very uncomfortably.

AMY GOODMAN: with Nancy Pelosi.

JANE MAYER: And I think an old friend of Nancy Pelosis.

AMY GOODMAN: The issue of the picturesJane, I want to ask you about this. You had President Obama clearly talking about the importance of transparency and photographs, and now theyve gone back. President Obama has done just a complete reversal on this and said, no, theyre not going to release them. I couldnt help but notice it was after Vice President Cheneys going onI dont know about every network, but on a number of networks and speaking out, speaking out, that his campaign may actually be quite successful.

JANE MAYER: I just dont know if it was really Cheney that pushed them back. It seems to me that what pushed them back was kind of the military establishment. It was General Odierno, in particular, who was the commander in Iraq at the time that these pictures and this abuse took place. So, I mean, there was kind of a self-interested aspect to the advice not to release these pictures from General Odierno, which I dont think people have examined that much.


JANE MAYER: Butwell, I mean, these pictures were of abuse that took place on his watch. And if you go up the chain of command, inevitably you would get to the general whos saying, Dont release the pictures.

So, you know, I think thatyou know, that it seems that Obama is trying to sort of split the baby in half and keep some kind ofkeep the military establishment on his side, the intelligence establishment on his side. Hes arguing that these would inflame anti-Americanism and might endanger soldiers out in the field.

AMY GOODMAN: And General McChrystal, now replacing McKiernan in Afghanistan, known for being in charge of, well, in Iraq at a time when the prisoners were being abused there at Abu Ghraib?

JANE MAYER: Yeah, I mean, he has ayou know, it depends who you talk toa mixed reputation. Some people think hes fantastic. I think what happened was, he changed his view on some of these things. And so, after Abu Ghraib, everybody sort of pulled back from using really abusive tactics in Iraq, as they had used before the pictures of Abu Ghraib came out. And McChrystal, though, was overseeing Special Forces. And a lot of very bad things happened in the hands of the Special Forces in Iraq in around 2003, during the insurgency. People were just rounded up and subjected to awful abuse. And its been described; I describe it in my book. It upset some very good officers who tried to stop it. And so, you know, theres a lot to hide.

And I think the problem for Obama here is, by not opening up the worst stuff from the Bush years, he may be in danger of becoming part of a cover-up. And he reallyI dont think he really wants to be in that position politically. At the same time, I understandIve talked to people in the White House. They do not want to be distracted by this forever. Theyve got a very positive agenda that they want to push forward. They see this as Bushs problems. They dont want to be tied up in it forever.

AMY GOODMAN: Or theyre tying themselves in it forever.

JANE MAYER: You know, they really dont wantthey have inherited this mess. So I have a certain amount of sympathy for them, in that they want this to go away.

AMY GOODMAN: Philippe Sands, do you have the same sympathy?

PHILIPPE SANDS: Its not going to go away. I mean, history tells you, in Chile, in Argentina, in other parts of the world

AMY GOODMAN: You worked on the Augusto Pinochet case.

PHILIPPE SANDS: these cases do not go away. Thats what history teaches you. You cant bury your head in the sand and hope that you will draw a line and no one will talk about it anymore. It will go on and on.

And my fear with these photographs is that they are taking steps which will inevitably delay the day of reckoning. Its the same thing in relation to investigations. Whats significant about these photographsand I think this has not been fully appreciated

AMY GOODMAN: And were talking abouttheyre talking about something like forty of them, but were talking actually thousands, is that right?

PHILIPPE SANDS: Right, there are thousands.

JANE MAYER: There are thousands.

PHILIPPE SANDS: There are thousands of photographs. They are talking about releasing forty-four. And the significance of them is that they are not limited to Iraq. They include Afghanistan and Bagram, and they include Guantanamo.

And the release of the photographs is significant, because it will give full force to the lie that the abuses at Abu Ghraib were a few bad eggs. What will become impossible to withstand is the recognition that the abuse was the result of policy decisions and legal advices and was widespread.

We know some of the images that have been the subject of this litigation. Its not right for President Obama to say these are not particularly inflammatory images. We know some of the stuff that is going to be coming.

AMY GOODMAN: And they are?

PHILIPPE SANDS: And it includes photographs, Im told, of peoples heads being partly shaved, so that a cross is placed on the head of a Muslim man. That is one image that I understand is out there. Theyre going to come out at some point. They ought to be gotten out sooner rather than later, and at that point people can then begin the process of moving on.

And coming back, I think, to the earlier point, its the same in relation to the issue of investigations. Its not a party political issue. I completely subscribe to the view that Jane has just explained in relation to what Nancy Pelosi has said, but we shouldnt be partisan about this. If there was knowledge, it doesnt matter whether it was Independents or Republicans or Democrats. We need a full investigation. It needs to come out.

AMY GOODMAN: I want to go to the role of a judgenow judge; he was then just Jay Bybeewho signed off on two of the torture memos released last month by President Obama. He signed the memos when he was Assistant Attorney General at the Office of Legal Counsel. Six months later, he breezed through his confirmation hearing for his appointment to the federal appeals court, and Congress voted him to a lifetime on the bench.

This is excerpts of a piece by David Murdock for the American News Project that looks into this very question, using interviews with attorney Scott Horton and Yale University law professor Bruce Ackerman.

BRUCE ACKERMAN: Without his authorization, the members of the CIA may well not have done it at all. Or, if they had, they would be plainly subject to criminal responsibility today. So these memos are at the absolute center of the torture activities of the United States government. This is not a minor matter. This is the foundation of our activities. Without these memos, the entire exercise of torture probably would not have taken place.

SCOTT HORTON: Well, if we go back and check this against the timeline, we see these memoranda, you know, issued at the beginning of August, prepared, you know, perhaps a few weeks before that. This stacks up with the time when Jay Bybee is in transit from the OLC to his judicial position. [inaudible] Congress is reviewing his candidacy, and hes going through the committee process with the Senate Judiciary Committee, no one is aware, as far as I can see, certainly no one on the Senate Judiciary staff nor members of the Senate Judiciary Committee, are aware of this entire controversy or aware of these memos.

BRUCE ACKERMAN: So, there was no critical questioning at all at the hearing room, and that does not normally happen.

SEN. ORRIN HATCH: Mr. Bybee, Ive seen a lot of people around here and a lot of judges, and I dont know of anybody who has any more qualifications or any greater ability in the law than you have. And thats counting some pretty exceptional people. And I think thats one reason why this particular hearing has not been as much an ordeal as some of the ones others have had.

SCOTT HORTON: Had the Senate known about these memos, theres simply no way Bybee ever would have been confirmed as a federal judge to begin with.

SEN. ORRIN HATCH: But Im hopeful that in your case and the cases of many, many others that we can get you through, get you on the bench, and get you doing your lifes work, which is really what that will be, in the best interests of our country. And I have absolutely no doubt that your efforts will be in the best interests of our country.

SCOTT HORTON: Had all this been on the record, its very clear he wouldnt have been confirmed. So that means he secured his confirmation to the bench through stealth.

BRUCE ACKERMAN: Judge Bybee is going to exercise an important position of power in the United States government for the next twenty-five years. The question is, shall we remove him from the future exercise of power? And to have someone who is aviolated the war crimes statute, lets saylets say he didif he did, then to interpret the laws of the United States and to tell other people they should go to jail, well, this is quite something.

SCOTT HORTON: There may be very good reasons why a prosecutor, in the end of the day, would decide not to indict Jay Bybee and take him to trial. I can imagineyou know, I can easily understand these considerations. But that someone like this would be sitting as a federal judge at the highest-level court below the Supreme Court, thats outrageous. You know, I think also theres an obvious solution to this dilemma, and that solution would be for Jay Bybee to resign.

AMY GOODMAN: Thats attorney Scott Horton. Before that, Yale University law professor Bruce Ackerman. Congratulating Jay Bybee in the Senate hearing was Orrin Hatch, the senator from Utah. Philippe Sands?

PHILIPPE SANDS: I think its a story that is picked up outside the United States, that a man who authorizedwho authorized torture, who signed two memos, is sitting on one of the highest courts of the United States, sends a shocking signal around the world. I think its an affront to the idea that the United States is committed to the rule of law. The United States is going around the world telling people to clean up their judicial appointment systems, attacking often very justifiably the composition of international tribunals for not having the right sort of people as judges. And yet, on the Ninth Circuit, we have a man who signed off on waterboarding and said it was fine and could be used.

I think the sooner there is a proper inquiry as to the circumstances in which he obtained his positionand, of course, its important to remember that at the date he went through his hearings, the memos had not yet appeared, so the members of the Judiciary Committee were not aware of what he had done, and he did not offer it up. And that, of course, raises certain questions as to whether or not he misled the Judiciary Committee.

AMY GOODMAN: Another headline is the military tribunals, Jane Mayer, and President Obamas reversal on the military tribunals. What will happen now?

JANE MAYER: Well, you know, they havent given us all the details yet of what these tribunals will involve. I mean, and so, you know, what President Obama has basically said is that he washe would restore the rule of law and due process for all the detainees in the war on terror. And we will see whether or not military tribunals can live up to that.

AMY GOODMAN: And this latest headline, which is the Congress saying not in my backyard forwill not fund

JANE MAYER: The ultimate not in my backyard. They

AMY GOODMAN: Guantanamo closing.

JANE MAYER: Nobody wants to have any of the Guantanamo prisoners anywhere in their state in this entire country, it seems, and the Democrats have really just fled from Obama on this. And

AMY GOODMAN: Well, led the charge against Obama. Harry Reid, for example.

JANE MAYER: Really. I mean, theyve criticized the Bush administration for keeping Guantanamo open, and now they are running away from trying to close it. So, its not exactly a profile in courage.

I think, you know, to some extent you can understand that these prisoners have been so dehumanized in the way theyve been described. I mean, we had one top military official from the Bush administration describe them as being able to chew through hydraulic cables to bring down planes. And, you know, theyve been described as absolute monsters. And the truth is, though, that the United States prison system has many monsters in it. It has, you know, the worstsome very scary convicted terrorists, including the shoe bomber, Richard Reid. Its got the people that tried to blow up the World Trade Center the first time. And I dont know

AMY GOODMAN: The Unabomber.

JANE MAYER: The Unabomber. You know, they have Timothy McVeigh. I mean, there are many people in maximum-security prisons in the United States who are being safely housed in those maximum-security prisons.

AMY GOODMAN: Philippe Sands, last word.

PHILIPPE SANDS: Theres a couple of related points.

AMY GOODMAN: Very quickly.

PHILIPPE SANDS: I mean, military tribunals is a mistake. To turn this into a war, I think, sends the wrong message. But theres a way finally to tie together all of these threads. The Obama administration is desperately trying to get rid of these people from Guantanamo and trying to do deals with third countries, including European countries, to take these individuals. Some of these countries, I think, are going to turn around to the Obama administration and say, Look, we may be willing to do this, but youve got to get your own house in order. Youve got to get to the bottom of what happened. You cant expect us to do the cleanup for you, if you are not going to put the spotlight on the wrongdoing that happened in the past. And I think connections will increasingly be made on those issues.



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