Scott Horton on the politicization of US DOJ

Six Questions for Former U.S. Attorney David Iglesias, Author of In Justice

By Scott Horton

His meteoric career is not simply the stuff of movies–after all, some of David Iglesias’s experiences as a Navy JAG at Guantánamo Bay furnished the material for Aaron Sorkin’s play “A Few Good Men,” later converted into a Hollywood blockbuster. But after six years of service as the Bush Administration’s U.S. Attorney in New Mexico, David Iglesias discovered that his name had been placed on Karl Rove’s hit list. He summed up his experience in a recent interview with the Daily Show’s Jon Stewart by saying, “I thought I was working for the Jedi knights, but found out I was working for the Sith Lords.” His new book, In Justice: Inside the Scandal That Rocked the Bush Administration, gives an in-depth look at how the Bush White House manipulated the Justice Department, bringing and quashing prosecutions for partisan purposes. I put six questions to David Iglesias.

1. You write that the efforts to remove you are tied directly to two things: first, your failure to bring prosecutions for “voting fraud”—after you had convened a special task force to investigate allegations and your career staff and you agreed that there was no basis to prosecute, and second, your refusal to give Senator Pete Domenici and the woman widely seen as his preferred successor, Rep. Heather Wilson, assurances that you would bring charges against a prominent Democrat in the weeks just before the election. You write that you believed that these charges would have given Wilson an edge in her tight race for re-election against former New Mexico Attorney General Patricia Madrid—a conclusion I also reached when I studied the matter. In the second case, you did in fact bring charges, but you also scrupulously followed the U.S. Attorney’s manual, which counseled against bringing prosecutions in immediate proximity to elections if they could be seen as an effort to influence the elections. In both cases, you were being pressured to use your office in a way that would benefit the Republican Party in New Mexico and would be inconsistent with your ethical and legal duties as U.S. Attorney. In both cases, the essential facts you lay out have been admitted to by the New Mexico Republicans involved. Nevertheless, you were fired not by the New Mexico Republicans, but by the Department of Justice. Can you take us through the steps that show how your failure to use your office to back up the G.O.P. in New Mexico led to the decision to fire you?

David Iglesias

One cannot fully comprehend the recent Justice Department meltdown without understanding the belief in New Mexico, Missouri, and Washington State Republican circles, that the 2000 election and subsequent contests were rife with fraud. It set the stage for what followed during the scandal surrounding the forced resignations in 2006 of United States Attorneys John McKay of Seattle, Todd Graves of Kansas City, and me. We were all criticized by Republican operatives for not filing voter or election fraud cases in our respective districts. Each of us examined the evidence and did not find any provable cases, so no indictments were filed. I remember hearing Republican activists allege that the Democrats stole the election in New Mexico during the 2000 presidential election. I heard that illegal immigrants were voting in large numbers. If true this would be criminal, but prosecutors may not base their cases on rumor and innuendo but on admissible evidence they can prove beyond a reasonable doubt in a court of law. Al Gore’s margin of victory in my state, 344 votes, was the slimmest win of any state in the union, and I believe it led local Republicans to vow that would never happen again. In a telling exchange, former White House Counsel Harriet Miers’s first question to John McKay when he interviewed for a federal judgeship was, “Why are the Washington Republicans so mad at you?” Graves was contacted by the former head of the American Center for Voting Rights, “Thor” Hearne, who wanted voter fraud cases prosecuted. Graves was replaced after he refused to file cases that had no merit.

Voter fraud became the bogeyman of New Mexico politics. And what person was best equipped to prevent this alleged problem from happening again? The United States Attorney. Hence in the summer of 2002 the Executive Office of United States Attorney in Washington emailed all 93 U.S. Attorneys asking us to work with state and local election officials to prevent election fraud. In New Mexico, no voting or election fraud case had been filed in federal court since 1992. I reviewed those two cases. They were petty cases producing minor sentences, something in the order of a year or two in prison. During the 2002 election cycle, I did not hear any allegations of widespread voter fraud in my jurisdiction. That changed dramatically in 2004, when the local media covered numerous instances of apparent voter fraud. The most dramatic of those cases involved two underage boys in Albuquerque who received voter registration forms for which they did not ask. Clearly “mischief was afoot,” as I stated to the media in my September 2004 press conference. There were numerous other examples of what appeared to be voter fraud.

Who was really guilty of this concerted attempt to co-opt the Justice Department for political ends? It’s certainly easy, as far as it goes, to point the finger at the hapless attorney general. It was his job to protect the integrity of the institution he led, and in that respect, Alberto Gonzales was a miserable failure. But does that analysis go far enough? In the case of Karl Rove—who was charged with the weighty responsibility of being the president’s domestic policy adviser—certainly not. But what about Bush himself? … Bush set a standard that placed allegiance to him above all else, and Gonzales met that standard at every turn. From that fundamental premise, all else proceeded.
—From In Justice: Inside the scandal that rocked the Bush Administration by David Iglesias.
Reprinted by permission of the publisher, John Wiley & Sons, Inc. Copyright (c) 2008 David Iglesias

In response, I set up one of only two election fraud task forces in the country. My task force was comprised of my office, the local FBI, Main Justice’s Public Integrity Section, the New Mexico Secretary of State’s office, and the State Police. It is important to note that the task force included a Democratic elected official. I intentionally included her for fear that if I acted alone, it would be perceived as a partisan witch hunt. Yet I was criticized by local Republican operative and former national committeeman Mickey Barnett for setting up a task force that, according to him, was a “joke.”

I also set up a hotline for citizens to call into the local FBI office. I believed that we would find provable cases of fraud that I could prosecute, and I was determined to find them. Matters that appeared to be within the jurisdiction of state authorities were sent to the State Police and federal matters were handled by the FBI. I held weekly meetings for approximately two months—from mid-September 2004, when I set up the task force, through mid-November when I stood it down. We took over one hundred complaints and investigated those that appeared to have merit. I asked Executive Assistant U.S. Attorney Rumaldo Armijo, a man I had known for over twenty years and someone with whom I had tried criminal and civil cases in state and federal court, to make the initial call as to whether any of the cases could be prosecuted. I knew him to be ethical, thorough, and relentless. I also met with the FBI agent who was investigating the matter. After almost two years of investigation, we were unable to come up with a single prosecutable case. I conferred with main Justice and with the local FBI office. It was ultimately my call, and I followed the professional staff in finding that there wasn’t enough evidence to support a prosecution. Main Justice and the FBI did not disagree with my assessment.

But local Republican leaders disagreed. They could not believe that the investigation failed to produce a prosecution. During the 2004-06 time period, Rumaldo Armijo and I received numerous phone calls and emails from former state G.O.P. counsel Patrick Rogers. He exhorted us to file cases. We could only tell him what we would tell any member of the public–that we would file provable cases and even then, we would not file a case just before an election if we felt it could affect the outcome of the election. This was policy of the Justice Department, per career attorney Craig Donsanto, who wrote the election fraud manual that all U.S. attorneys used. Significantly, Rogers never told Armijo or me that he was also an official of a group called the American Center for Voting Rights—a G.O.P. organization alleged to be engaged in voter suppression efforts. I did not find this important fact until after I left the Justice Department. I knew Rogers to be involved in the litigation over the voter I.D. law and knew him to be a fiercely partisan Republican. In 2006, I heard from a friend of mine who was active in the state party that the party was upset with me. At one point he implored me, “can’t you file something?” So I heard the rumbling of the party in the 2005-06 timeframe.

I was aware of the simmering discontent of the local Republicans. Just before the 2006 midterm election that discontent boiled over when I received a highly improper phone call from Congresswoman Heather Wilson in mid-October and another call from Senator Pete Domenici in late October. At the time of the call, Wilson was locked in a tight race with challenger Patricia Madrid who was ahead of her in some polls. Wilson was calling about “sealed indictments” concerning a prominent local Democrat my office was investigating for corruption. I did not tell her anything about the matter since that would have been against the law and a violation of DOJ guidelines. Domenici called me a couple of weeks later asking whether I’d be filing the indictments he was reading about “before November.” When I told him “I didn’t think so,” he responded “I’m very sorry to hear that” and then hung up on me. Both Wilson and Domenici were talking about the same investigation. Wilson had used her opponent’s weak record in pursuing corruption cases as part of her attack strategy. I knew that if I told them I was close to indicting the case that would be used by Wilson in connection with her election campaign. I also knew they had no legitimate need to know when I would be filing the indictments. I was put on the list to be fired on November 7, 2006—Election Day. The timeline alone is damning and it was clear to me that I was placed on the list because I would not rush an indictment of a high-profile Democrat in a way that would benefit Wilson in her campaign. Wilson ultimately won that race by fewer than 900 votes. I do note that Wilson lost in the primary this June, ending her bid to replace Domenici, who will be retiring from his Senate seat in January 2009. Domenici’s official explanation for retiring after 36 years of service is for health related reasons; he has a degenerative neurological condition.

2. The Justice Department’s Inspector General (OIG) and the Office of Professional Responsibility (OPR) have been investigating the firing of eight U.S. attorneys, including yourself, and their report is now due. The OPR has been heavily criticized lately for its failure to follow through on major investigations, and it has been manipulated—sometimes overtly—by political appointees. OIG has maintained its independence and integrity, however. Have you been interviewed in connection with this probe? Did it strike you as thorough and professional? Do you expect a report to be issued shortly, and if so, what are the major conclusions you would anticipate?

Yes, I was interviewed by attorneys from both OIG and OPR. They initially interviewed me in Albuquerque in June, 2007. They called me a couple more times with follow-up questions. I viewed them as professional and thorough. I expect the report to be filed any day now. I expect them to conclude that there is sufficient evidence to show that former Attorney General Alberto Gonzales and former Deputy Attorney General Paul McNulty committed perjury in their statements before Congressional committees and investigators. They may find that former McNulty chief of staff Mike Elston intimidated witnesses based on his calls to former U.S. Attorney Bud Cummins of Arkansas. I was aware that Elston had told Cummins that “the gloves would come off” if we kept speaking out about our forced resignations. I found out after In Justice went to print that Elston also told Cummins we would be “thrown under the bus” for our speaking out. It is appalling that a former career federal prosecutor like Elston would so flagrantly violate the law against witness intimidation. There may be enough evidence to warrant a formal investigation of conspiracy and obstruction of justice charges against Gonzales, McNulty and Elston. I hope the OIG/OPR report recommends the appointment of a special prosecutor to investigate the matter, taking the advice offered by former U.S. Attorney John McKay in his compelling law review article on the subject.

3. You quote John Ashcroft as saying that “politics have no role in the position of United States attorney.” But of course, the House Judiciary Committee is now looking at a list of prosecutions brought under Ashcroft’s tenure in which there is significant evidence that politics did indeed play a role. On Thursday of last week, Ashcroft surprised many by stating that he was very troubled by the way the White House manipulated the process of issuing opinions in the Office of Legal Counsel (OLC). He suggested that OLC had ceased to be independent or to render independent legal advice. What emerges from Ashcroft’s testimony is a picture of a Justice Department that was slipping out of his control and was being secretly manipulated by political functionaries in the White House. In retrospect, would you now say that this may have occurred with respect to the U.S. Attorneys as well?

Yes, based on what I know now, the political operatives in the West Wing wanted an outcome that Ashcroft and former Deputy Attorney General Jim Comey were not willing to support after reviewing the law. The White House didn’t want an independent analysis–it wanted the rubber stamp of the Justice Department. I recall hearing testimony last year from Comey that he, Ashcroft, and FBI Director Bob Mueller threatened to resign over the warrantless wiretap issue—another issue from OLC, but indicative of the clash between the politicos of the West Wing and the independent analysis that the DoJ was ethically required to provide.

Regarding the other U.S. Attorneys, of the remaining 84 who were not asked to resign in 2006, I am aware of allegations of selective, politically driven prosecutions in Alabama related to the highly suspicious prosecution of former Governor Don Siegelman, the prosecution of county coroner Cyril Wecht in Pittsburgh, and the prosecution of Wisconsin employee Georgia Thompson in Milwaukee. I am not aware of even the allegation of a “Faustian bargain” with the remaining 81 US Attorneys. Having worked with virtually all of them, I believe them to be ethical attorneys who would not compromise their office for political gain.

4. You write that “all roads lead to Karl Rove,” that he was the mastermind of the plan to cashier U.S. attorneys for political reasons. Ten days ago, Karl Rove failed to respond to a subpoena from the House Judiciary Committee, sending only a letter by his lawyer stating that he was invoking executive privilege. Of course, as you explained in your article in Slate, Executive Privilege does not exist in this case, and in any event, it would be the President’s privilege to invoke, not Karl Rove’s. Not only did Rove fail to appear, he actually fled the jurisdiction, as my colleague Ken Silverstein reported, appearing at a “nauseating” gathering of post-Soviet oligarchs in Ukraine. To add to the insult, he later appeared on Fox News taunting and mocking the Congressional investigators. Do you think it would be appropriate for Congress to sanction him for contempt? Why do you think Rove is refusing to answer questions under oath? Do you believe the prohibition on “corruptly influencing” a criminal prosecution, 18 U.S.C. § 1503(a), has something to do with Rove’s decision?

From virtually the first day, the Bush Administration seemed to have wrapped itself in an impenetrable aura of hubris, stiffened, as its members were, by ideological rigor and dedicated to Rove’s own goal of a permanent Republican majority. Under the ineluctable sway of that grand goal, those who expressed dissent or demonstrated disloyalty or were simply suspected of doing either were judged expendable. My fellow fired U.S. attorneys and I were just collateral damage in a larger battle to refashion government to reflect the ideals and the values of a single partisan agenda.
—From In Justice

Rove has already been held in contempt of the Senate. The House should follow suit. It is unacceptable in a country where the rule of law is the cornerstone of our jurisprudence that a former White House official fail to appear to claim privilege before Congress. Rove should have appeared before Congress and claimed privilege. Rather, he thumbed his nose at a co-equal branch of government and showed his utter disregard for their powers. His actions are contemptuous per se and he should be held in contempt by the House. The language of 18 USC § 1503(a) is broad since it speaks of “influencing” an “officer…of the United States” in the “discharge of his duties” including the “due administration of justice.”

Applying this test to the allegations concerning the Siegelman matter, for instance, the evidence suggests that Rove influenced a U.S. Attorney in the discharge of her duties. This is a very serious matter and needs to be fully investigated since a non-attorney policy adviser has no business influencing the indictment of an elected official.

The record also shows that Domenici contacted Rove about me, as did the State Party Chairman of New Mexico, Allen Weh. If Rove’s intent was to find a U.S. Attorney who would file voter fraud cases or rush an indictment against the former State Senate Pro Tem Manny Aragon, then Rove may face criminal exposure using the “corruptly…influence” standard in section 1503. The Administration may be withholding evidence concerning former San Diego U.S. Attorney Carol Lam’s forced resignation while she was investigating Dusty Foggo, a high level political appointee at the CIA and former Arizona U.S. Attorney Paul Charlton’s dismissal as he was investigating Arizona Congressman Rick Renzi, a conservative Republican.

5. One of the most compelling aspects of your book involves how you shared notes with the other seven U.S. attorneys who were dismissed late in 2006. You repeatedly found similarities—some failed to go after Democrats, some had prosecuted Republicans, others had been caught up in the “voter fraud” fraud. Is it fair for us to be concerned about the more than eighty U.S. attorneys who were not cashiered?

This is a very thorny issue as I understand the need for Congress to provide oversight for apparently politically driven investigations or prosecutions. On the other hand, prosecutors do have tremendous discretion to investigate and file charges. To accede to Congress in any matter, in my opinion, would be a solution worse than the problem which I believe to be extremely rare. Many investigations are closed due to lack of evidence or provability. To allow Congress to second-guess these closed matters could result in inappropriate harm to the reputations of persons who were investigated, but never actually charged. I would support Congressional oversight only if the evidence is clear that the resources of the Justice Department were used in an unlawful, partisan manner. Another practical problem is that few members of Congress have ever been U.S. Attorneys—I can think of Senator Sheldon Whitehouse of Rhode Island and Senator Jeff Sessions of Alabama. I would be concerned about opening up Pandora’s box if Congress had full access to review any matter ever investigated by the Justice Department.

6. In chronicling the very prickly relations that developed with main Justice in the weeks that followed your departure, you note the rude phone calls that some of your colleagues received intimating that they would be smeared if they spoke honestly about what had happened, you record the false testimony given by the four senior-most Justice officials that ultimately caused them to resign in disgrace, and finally you give us the blow-by-blow involving Main Justice’s flak, Brian Roehrkasse. A former Republican campaign operative, Roehrkasse was caught issuing false statements. However, instead of being dismissed, Roehrkasse was actually promoted—he is now Justice’s chief press spokesman, and he continues in that capacity under Attorney General Mukasey. You recall a final meeting with Deputy Attorney General James Comey in which he spoke of the need for the Justice Department to maintain a “reservoir of trust.” At present the Justice Department is at a low point in modern times, and it increasingly appears that the “reservoir of trust” was used to do some very bad things. How would you advise the next attorney general to start building back the trust that has been lost, and what should be done with those who abused the public’s trust?

The Justice Department’s reservoir of trust is empty and dry. It will take completely new leadership at main Justice and in the field to re-build the faith the public once had in the fairness of the federal criminal system. This is the real tragedy of the scandal—certainly it is not about a few highly performing U.S. Attorneys being fired for improper political reasons; rather, it is the unintended consequence of serious damage to the reputation to the nation’s premier crime fighting organization. It doesn’t help when the press officers are engaging in a pattern of obfuscation, half truths and untruths as former U.S. Attorney Bud Cummins so forcefully described in his Washington Monthly article.

I trust the next attorney general will continue Mukasey’s policy of limiting White House and Justice Department contact to only four people as compared with the hundreds under the tenure of Alberto Gonzales. In order to insulate U.S. attorneys from improper partisan manipulation, Congress could require that a U.S. attorney can be removed during his term only for misconduct. Future administrations need to protect U.S. attorneys from improper political pressure. For example, this administration protected U.S. Attorney Johnny Sutton after his highly controversial prosecution of Border Patrol agents Ramos and Compean. The chorus of critics were largely conservative Republicans and the administration shielded Sutton from their pressure. The next attorney general needs to understand the historic independence and integrity of the U.S. attorney. We are not merely politically appointees—we are the only members of the administration who can take away your life, liberty and property. Ultimately we need leaders at main Justice who understand that the administration of justice is a matter of right and wrong, not a matter of right or left.

Lawmakers Urge Special Counsel Probe of Harsh Interrogation Tactics

By Joby Warrick

Washington Post Staff Writer
Sunday, June 8, 2008; Page A07

This Story

• Lawmakers Urge Special Counsel Probe of Harsh Interrogation Tactics
• Letter to Mukasey

In a letter to Attorney General Michael B. Mukasey, the lawmakers cited what they said is "mounting evidence" that senior officials personally sanctioned the use of waterboarding and other aggressive tactics against detainees in U.S.-run prisons overseas. An independent investigation is needed to determine whether such actions violated U.S or international law, the letter stated.

"This information indicates that the Bush administration may have systematically implemented, from the top down, detainee interrogation policies that constitute torture or otherwise violate the law,"

it said. The letter was signed by 56 House Democrats, including House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) and House Intelligence Committee members Jan Schakowsky (D-Ill.) and Jerrold Nadler (D-N.Y).

The request was prompted in part by new disclosures of high-level discussions within the Bush administration that reportedly focused on specific interrogation practices. Some of the new detail was contained in a report last month by the Justice Department's inspector general, which described a series of White House meetings in which the controversial tactics were vigorously debated.

Conyers, whose committee already is looking into the role played by administration lawyers in authorizing aggressive measures, said a broader probe is now needed.

"We need an impartial criminal investigation,"

said Conyers, who called the detainee controversy

"a truly shameful episode" in U.S. history. "Because these apparent 'enhanced interrogation techniques' were used under cover of Justice Department legal opinions, the need for an outside special prosecutor is obvious."

Justice officials had not yet studied the letter and would not comment, said Peter Carr, a department spokesman. "The department reviews every letter received by Congress and responds appropriately," he said.

The House letter suggested a broad inquiry that would examine the consequences of administration decisions at U.S. detention sites in Iraq; at Guantanamo Bay, Cuba; and in former secret prisons operated by the CIA. The letter said interrogation policies had resulted in "abuse, sexual exploitation and torture" that may have violated the War Crimes Act of 1996 and the American Anti-Torture Act of 2007.

"Despite the seriousness of the evidence, the Justice Department has brought prosecution against only one civilian for an interrogation-related crime," the letter states. "Given that record, we believe it is necessary to appoint a special counsel in order to ensure that a thorough and impartial investigation occurs."

Numerous human rights groups have been calling for such an investigation for several years. Jennifer Daskal, senior counterterrorism counsel for Human Rights Watch, said the request by House members will be significant even if the request for a special counsel is refused.

"The fact that so many representatives have called for the investigation helps lay the groundwork for the inevitable reckoning and accounting that the next administration is going to have to do regarding this administration's practices," Daskal said.

Same story by Public Record's Jason Leopold !!

(note this gives the entire timeline of the torture developments - but leaves out significant details of other detainee torture .. )

House Democrats Want Bush Administration Investigated for War Crimes

House Democrats sent a letter to Attorney General Michael Mukasey Friday requesting that he appoint a special prosecutor to investigate whether White House officials, including President Bush, violated the War Crimes Act when they allowed interrogators to use brutal interrogation methods against detainees suspected of ties to terrorist organizations.

The letter, signed by 56 Congressional lawmakers, including House Judiciary Committee Chairman John Conyers, who is leading an investigation into the administration’s interrogation practices, says the International Committee of the Red Cross conducted an independent investigation of interrogation practices at Guantanamo Bay and “documented several instances of acts of torture against detainees, including soaking a prisoner’s hand in alcohol and lighting it on fire, subjecting a prisoner to sexual abuse and forcing a prisoner to eat a baseball.”

“We believe that these events alone warrant action, but within the last month additional information has surfaced that suggests the fact that not only did top administration officials meet in the White House and approve of the use of enhanced techniques including waterboarding against detainees, but that President Bush was aware of, and approved of the meetings taking place,” the letter, dated June 6, says. The Justice Department is reviewing the letter, a spokesman said.

However, Mukasey has defended the administration's interrogation policies, and with seven month to go before a new president is sworn into office, it appears unlikely that Mukasey will act on the Democrats' request. Earlier this year, Mukasey has appointed a special counsel to investigate the destruction of videotapes showing CIA interrogators subjecting detainees to waterboarding.

In April, President Bush told an ABC News reporter during an interview that he approved of meetings of a National Security Council's Principals Committee, whose advisers included Vice President Dick Cheney, former National Security Adviser Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, former CIA Director George Tenet and former Attorney General John Ashcroft, where these officials discussed specific interrogation techniques the CIA could use against detainees.

"This information indicates that the Bush administration may have systematically implemented, from the top down, detainee interrogation policies that constitute torture or otherwise violate the law," the letter to Mukasey says. “We believe that these serious and significant revelations warrant an immediate investigation to determine whether actions taken by the President, his Cabinet, and other Administration officials are in violation of the War Crimes Act, the Anti-Torture Act, and other U.S. and international laws.”

In declaring that the United States does not engage in torture, Bush administration officials appear to be relying on a narrower U.S. definition of torture than that is accepted under international law, such as the 1984 Convention Against Torture that was signed by the Reagan administration in 1988 and ratified by the U.S. Senate in 1994.

“The threshold for torture is lower under international law: acts that do not amount to torture under U.S. law may do so under international law,” wrote Philippe Sands, law professor at University College London, in a column published in the Dec. 9, 2005, edition of The Financial Times.

“Waterboarding – strapping a detainee to a board and dunking him under water so he believes that he might drown – plainly constitutes torture under international law, even if it may not do so under U.S. law. …

“When the U.S. joined the 1984 convention it entered an ‘understanding’ on the definition of torture, to the effect that the international definition was to be read as being consistent with the U.S. definition The administration relies on the ‘understanding.’

“So, when Ms. Rice says the U.S. does not do torture or render people to countries that practice torture, she does not rely on the international definition. That is wrong: the convention does not allow each country to adopt its own definition, otherwise the convention's obligations would become meaningless. That is why other governments believe the U.S. ‘understanding’ cannot affect U.S. obligations under the convention.”

Torture Memo Based on Health Benefits Law

The document that gave the White House the legal cover it needed to authorize the CIA to use waterboarding and other tortuous methods during detainee interrogations was based on a statute governing health benefits.

John Yoo, the former deputy assistant attorney general in the Justice Department’s Office of Legal Counsel (OLC) who drafted the legal opinion widely referred to as the ”torture memo,” concluded that unless the amount of pain administered to a detainee results in injury "such as death, organ failure, or serious impairment of body functions" than the interrogation technique could not be defined as torture.

Waterboarding, a brutal and painful technique in which a prisoner believes he is drowning, therefore was not considered to be torture.

"That statute defined an ‘emergency medical condition’ that warranted certain health benefits as a condition ‘manifesting itself by acute symptoms of sufficient severity (including severe pain)’ such that the absence of immediate medical care might reasonably be thought to result in death, organ failure, or impairment of bodily function," Jack Goldsmith, the former head of OLC, wrote in his book, The Terror Presidency.

"The health benefits statute's use of ‘severe pain’ had no relationship whatsoever to the torture statute. And even if it did, the health benefit statute did not define ‘severe pain.’ Rather it used the term ‘severe pain’ as a sign of an emergency medical condition that, if not treated, might cause organ failure and the like.... OLC’s clumsily definitional arbitrage didn't seem even in the ballpark."

Yoo has agreed to testify before the House Judiciary Committee about the legal opinions he drafted authorizing the use of waterboarding and other methods during interrogations. Former Attorney General John Ashcroft, former Under Secretary of Defense Douglas Feith, and former Assistant Attorney General Dan Levin have also agreed to give testimony at a future hearing. Former CIA Director George Tenet is still in negotiations with the committee.

Military Interrogators

Yoo, who now teaches at the University of California at Berkeley, also drafted a March 14, 2003 document, nearly identical to the August 2002 memo he authored, that essentially provided military interrogators with legal cover if they resorted to brutal and violent methods to extract information from prisoners.

"If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al-Qaeda terrorist network," Yoo wrote.

"In that case, we believe that he could argue that the Executive Branch's constitutional authority to protect the nation from attack justified his actions."

The legal opinion for military interrogators was virtually identical to an earlier memo that Yoo had written in August 2002 for CIA interrogators. Widely called the “Torture Memo,” it provided CIA interrogators with the legal authority to use long-outlawed tactics, such as waterboarding, when interrogating so-called high-level terrorist suspects.

Yoo, Others, Under Investigation

The Justice Department's Office of Professional Responsibility (OPR) launched a formal investigation to determine whether Yoo, and other attorneys in the Office of Legal Counsel, provided the White House with poor legal advice when it drafted memos authorizing the use of “enhanced interrogation” methods.

In a Feb. 18, letter sent to Sen. Dick Durbin, the Illinois Democrat who requested the probe, H. Marshall Jarrett, the head of OPR, said his office intends to question Yoo, and his former boss, Jay Bybee, the former head of OLC, now a federal appeals court judge in San Francisco, who signed the “torture memo.”

"Among other issues, we are examining whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys," Jarrett's letter says, adding that his office may release the findings of the investigation publicly.

Bush Approved

Lt. Gen. Ricardo S. Sanchez, the top commander in Iraq who retired last year, instituted a “dozen interrogation methods beyond” the Army’s standard practice under the convention, according to a 2004 report on the prisoner abuse at Abu Ghraib prepared by a panel headed by James Schlesinger, as a result of an action memorandum, dated Feb. 7, 2002, that was signed by President Bush.

The memo Bush signed stated that the Geneva Convention did not apply to members of al-Qaeda or the Taliban.

Sanchez said he based his decision on “the President's Memorandum,” which he said had justified "additional, tougher measures" against detainees at Abu Ghraib, the Schlesigner report said.

Two years later, an internal FBI email emerged that said Bush had signed an Executive Order Bush’s Executive Order that authorized interrogators to use military dogs, “stress positions,” sleep “management,” loud music and “sensory deprivation through the use of hoods, etc.” to extract information from detainees in Iraq.

The American Civil Liberties Union released FBI e-mail in December 2004 after obtaining it through a Freedom of Information Act lawsuit.

Government Drops Charges

Last month, the Pentagon announced that it decided to drop war-crimes charges against Mohammed al-Qahtani, the alleged “20th hijacker” in the 9/11 attacks because the U.S. government would have been forced to reveal its own violations of the Geneva Convention, anti-torture statutes and the laws of war, according to lawyers representing al-Qahtani.

“All of the [incriminating] statements Mohammad al-Qahtani made or is alleged to have made were the result of torture or made under the threat of torture and that is in my view why the government decided to dismiss his case at this point,” said Vince Warren, executive director of the Center for Constitutional Rights (CCR) in New York.

CCR has been representing Mohammed al-Qahtani since 2005 and has led the legal battle for the human rights of detainees incarcerated at Guantanamo Bay, Cuba, for the last six years.

Al-Qahtani is believed to be one of the first detainees subjected to harsh questioning after the Justice Department issued a legal opinion in August 2002 permitting U.S. government interrogators to sidestep the Geneva Convention and use cruel and humiliating techniques, from forced nudity to stress positions to waterboarding, to extract information.

He was captured in December 2001. Much of the evidence against al-Qahtani was derived substantially from admissions that he made while under harsh interrogation. Last February, the Pentagon announced its intention to pursue the death penalty against al-Qahtani and five other men for their alleged involvement in the 9/11 attacks.

But on May 9, the Pentagon dismissed the case against al-Qahtani without explanation – and without prejudice, meaning that the charges could be reinstated at a later date. Though the charges were dropped, he will remain detained indefinitely at Guantanamo.

Torture Log

The harsh treatment of al-Qahtani was catalogued in an 84-page log of his interrogation that was leaked in 2006. The so-called “torture log” shows that beginning in November 2002 and continuing well into January 2003, al-Qahtani was subjected to sleep deprivation, interrogated in 20-hour stretches, poked with IV’s, and left to urinate on himself.

On Dec. 11, 2002, interrogators began to apply what they called the “pride and ego down approach,” subjecting him to religious and sexual humiliation, making him bark like a dog, and calling him “a pig” as he was made to pick up piles of trash with his hands cuffed.

Gitanjali S. Gutierrez, an attorney with CCR and the lead attorney defending al-Qahtani, said in a sworn declaration that his client, imprisoned at Guantanamo, was subjected to months of torture based on verbal and written authorizations from Rumsfeld.

“Mr. al-Qahtani was subjected to a regime of aggressive interrogation techniques, known as the ‘First Special Interrogation Plan,’" Gutierrez said. “Those techniques were implemented under the supervision and guidance of [former Defense] Secretary [Donald] Rumsfeld and the commander of Guantánamo, Major General Geoffrey Miller.

"These methods included, but were not limited to, 48 days of severe sleep deprivation and 20-hour interrogations, forced nudity, sexual humiliation, religious humiliation, physical force, prolonged stress positions and prolonged sensory over-stimulation, and threats with military dogs.”

Gutierrez’s claims about the type of interrogation al-Qahtani endured have since been borne out by the release of hundreds of pages of internal Pentagon documents, which described interrogation methods at Guantanamo, as well as by the findings of two independent reports on prisoner abuse.

Rumsfeld’s action memo was criticized by Alberto Mora, the former general counsel of the Navy.

“The interrogation techniques approved by the Secretary [of Defense] should not have been authorized because some (but not all) of them, whether applied singly or in combination, could produce effects reaching the level of torture, a degree of mistreatment not otherwise proscribed by the memo because it did not articulate any bright-line standard for prohibited detainee treatment, a necessary element in any such document,” Mora wrote in a 14-page letter to the Navy’s inspector general.

Additionally, a Dec. 20, 2005, Army Inspector General Report relating to the capture and interrogation of al-Qahtani included a sworn statement by Lt. Gen. Randall M. Schmidt, who said Secretary Rumsfeld was “personally involved” in the interrogation of al-Qahtani and spoke “weekly” with Maj. Gen. Miller about the status of the interrogations between late 2002 and early 2003.

"Despite the seriousness of the evidence, the Justice Department has brought prosecution against only one civilian for an interrogation-related crime," the letter sent to Mukasey by House Democrats states. "Given that record, we believe it is necessary to appoint a special counsel in order to ensure that a thorough and impartial investigation occurs."

Torture Policies Undermine 9/11 Case

(Consortium News)

By Jason Leopold

May 15, 2008

The Pentagon’s decision to drop war-crimes charges against Mohammed al-Qahtani, the alleged “20th hijacker” in the 9/11 attacks, again underscores the consequences of the Bush administration’s descent into torture and other abusive treatment of “war on terror” detainees.

If al-Qahtani’s case had gone forward, the U.S. government would have been forced to reveal its own violations of the Geneva Convention, anti-torture statutes and the laws of war, according to lawyers representing al-Qahtani.

“All of the [incriminating] statements Mohammad al-Qahtani made or is alleged to have made were the result of torture or made under the threat of torture and that is in my view why the government decided to dismiss his case at this point,” said Vince Warren, executive director of the Center for Constitutional Rights (CCR) in New York.

CCR has been representing Mohammed al-Qahtani since 2005 and has led the legal battle for the human rights of detainees incarcerated at Guantanamo Bay, Cuba, for the last six years.

The harsh treatment of al-Qahtani was catalogued in an 84-page log of his interrogation that was leaked in 2006. The so-called “torture log” shows that beginning in November 2002 and continuing well into January 2003, al-Qahtani was subjected to sleep deprivation, interrogated in 20-hour stretches, poked with IV’s, and left to urinate on himself.

On Dec. 11, 2002, interrogators began to apply what they called the “pride and ego down approach,” subjecting him to religious and sexual humiliation, making him bark like a dog, and calling him “a pig” as he was made to pick up piles of trash with his hands cuffed.

According to one entry for Dec. 13, 2002, the interrogators sought to “escalate the detainee’s emotions.”

“A mask was made from an MRE [meals ready to eat] box with a smiley face on it and placed on the detainee’s head for a few moments. A latex glove was inflated and labeled the ‘sissy slap’ glove. This glove was touched to the detainee’s face periodically after explaining the terminology to him.

“The mask was placed back on the detainee’s head. While wearing the mask, the team began dance instruction with the detainee. The detainee became agitated and began shouting. The mask was removed and detainee was allowed to sit. Detainee shouted and addressed lead [interrogator] as ‘the oldest Christian here’ and wanted to know why lead allowed the detainee to be treated this way.”

The log contains numerous entries describing al-Qahtani’s reaction to the interrogations, as he cried, shook, moaned, yelled, prayed, cried out for Allah, trembled uncontrollably and asserted his innocence.

Psychological Trauma

According to a report by CCR attorneys, “on one occasion described in the interrogation log, Mr. al-Qahtani was rushed to a military base hospital when his heart rate fell dangerously low during a period of extreme sleep deprivation, physical stress and psychological trauma.

“The military flew in a radiologist from the U.S. Naval Station in Puerto Rico to evaluate the computed tomography (‘CT’ or ‘CAT’) scan. After being permitted to sleep a full night, medical personnel cleared Mr. al-Qahtani for further interrogation the next day. During his transportation from the hospital, Mr. al-Qahtani was interrogated in the ambulance.”

Legal experts, who have followed the al-Qahtani case since his capture in December 2001, say a core problem for the Pentagon was that the evidence against al-Qahtani was derived substantially from admissions that he made while under harsh interrogation.

There was also circumstantial evidence related to al-Qahtani’s attempt to enter the United States before the 9/11 attacks. An immigration official turned him back and U.S. government officials claim that action forced the 9/11 hijackers to proceed with only 19 participants.

Last February, the Pentagon announced its intention to pursue the death penalty against al-Qahtani and five other men for their alleged involvement in the 9/11 attacks.

But on May 9, the Pentagon dismissed the case against al-Qahtani without explanation – and without prejudice, meaning that the charges could be reinstated at a later date. Though the charges were dropped, he will remain detained indefinitely at Guantanamo.

Al-Qahtani is believed to be one of the first detainees subjected to harsh questioning after the Justice Department issued a legal opinion in August 2002 permitting U.S. government interrogators to sidestep the Geneva Convention and use cruel and humiliating techniques, from forced nudity to stress positions to waterboarding, to extract information.

The Geneva Convention bars abusive or demeaning treatment of captives. However, John Yoo, then a senior lawyer in the Justice Department’s Office of Legal Counsel, concluded that the Geneva Convention did not apply to alleged members of al-Qaeda.

As reported previously, specific interrogation methods used against al-Qahtani were approved by former Secretary of Defense Donald Rumsfeld in a December 2002 action memorandum.

Months of Torture

Gitanjali S. Gutierrez, an attorney with CCR and the lead attorney defending al-Qahtani, said in a sworn declaration that his client, imprisoned at Guantanamo, was subjected to months of torture based on verbal and written authorizations from Rumsfeld.

“Mr. al-Qahtani was subjected to a regime of aggressive interrogation techniques, known as the ‘First Special Interrogation Plan,’" Gutierrez said. “Those techniques were implemented under the supervision and guidance of Secretary Rumsfeld and the commander of Guantánamo, Major General Geoffrey Miller.

"These methods included, but were not limited to, 48 days of severe sleep deprivation and 20-hour interrogations, forced nudity, sexual humiliation, religious humiliation, physical force, prolonged stress positions and prolonged sensory over-stimulation, and threats with military dogs.”

Gutierrez’s claims about the type of interrogation al-Qahtani endured have since been borne out by the release of hundreds of pages of internal Pentagon documents, which described interrogation methods at Guantanamo, as well as by the findings of two independent reports on prisoner abuse.

Rumsfeld’s action memo was criticized by Alberto Mora, the former general counsel of the Navy.

“The interrogation techniques approved by the Secretary [of Defense] should not have been authorized because some (but not all) of them, whether applied singly or in combination, could produce effects reaching the level of torture, a degree of mistreatment not otherwise proscribed by the memo because it did not articulate any bright-line standard for prohibited detainee treatment, a necessary element in any such document,” Mora wrote in a 14-page letter to the Navy’s inspector general.

Additionally, a Dec. 20, 2005, Army Inspector General Report relating to the capture and interrogation of al-Qahtani included a sworn statement by Lt. Gen. Randall M. Schmidt, who said Secretary Rumsfeld was “personally involved” in the interrogation of al-Qahtani and spoke “weekly” with Maj. Gen. Miller about the status of the interrogations between late 2002 and early 2003.

Last February, the Justice Department's Office of Professional Responsibility (OPR) confirmed that it had launched a formal investigation to determine, among other issues, whether department attorneys provided the White House with poor legal advice when it said interrogators could use harsh interrogation methods against detainees.

CCR’s Warren said a trial of al-Qahtani would have forced the government to disclose how it obtained information from the defendant about alleged terrorist plans and the inner workings of al-Qaeda.

“We were pursuing the case that the government got evidence through torture,” Warren said. “The government would have to talk about how the information was obtained. That would never be able to survive in court because the torture log is clear that Mr. al-Qahtani provided information because he was being tortured.”

Warren said he wants the Pentagon to release al-Qahtani and have him sent to Saudi Arabia “where they have a system in place to maintain custody of any former Guantanamo detainee who presents a danger, as well as a strong rehabilitation program supervising those that are released.”

“It’s unlikely he would face torture or abuse on the magnitude Mr. al-Qahtani faced at Gitmo,” Warren said.

Jason Leopold has launched a new Web site, The Public Record, at www.pubrecord.org