Civil Liberties Groups Prepare Delicate Message on CIA Probe

By
Friday, August 21, 2009 at 1:37 pm

holder

Like many in the intelligence community, Tyler Drumheller is waiting to see if his former colleagues will be left holding the bag for the Bush administration.

Illustration by: Matt Mahurin

Illustration by: Matt Mahurin

As early as Monday, Attorney General Eric Holder is expected to announce the appointment of a special prosecutor to investigate acts of torture performed by the CIA as part of the Bush administration’s so-called “enhanced interrogation” program. Holder, initially reluctant to investigate for fear of stoking a political brushfire, reportedly considered pursuing inquiry after reading through a grisly 2004 CIA inspector general report about detentions and interrogations that the agency is scheduled to release on Monday. Reports to date have indicated that Holder is considering restricting the inquiry to low-level CIA interrogators who went beyond acting in what President Obama has called “good faith” to Bush-era Justice Department legal guidance that the Obama administration has revoked.

Drumheller, a retired chief of CIA operations in Europe — who was never an interrogator — said restricting an inquiry to CIA interrogators is unfair. “What happened is a reflection of policy” at the time, Drumheller said. “None of this stuff was done in a vacuum.”

It may be no surprise that a former senior CIA official doesn’t think CIA interrogators ought to fall on their swords for a torture policy concocted at the highest levels of the previous administration. Perhaps less intuitive is that Drumheller is aggressively seconded by the civil libertarian community. Civil libertarians are preparing the delicate message that Holder’s anticipated inquiry ought to go much further at a time when prominent Republican senators argue that any inquiry at all is going dangerously too far.

“Worse than doing nothing at all” was how Tom Malinowski, the Washington advocacy director of Human Rights Watch, described Holder’s possible decision to stop an inquiry at low-level interrogators in a recent Los Angeles Times interview. The pungent quote struck some in the human-rights community as too real — an authentic expression of how the community feels that but one that nevertheless left Holder, a necessary ally for any thorough torture investigation, exposed.

Indeed, on Wednesday, nine GOP senators wrote to Holder to oppose any inquiry at all. “[T]here is little doubt that further investigations and potential prosecutions of CIA officials would chill future intelligence activities,” the senators argued. “The intelligence community will be left to wonder whether actions taken today in the interest of national security will be subject to legal recriminations when the political winds shift.”

Malinowski said he stands by the remark, particularly as the Obama administration prepares to make a momentous choice. “There is a way [Holder] could do this in a way that could do harm, and it’s hard for me to say otherwise,” Malinowski explained. “I’ll take half a loaf on almost any issue, but if this ends with a few grunts getting prosecuted, I really believe that will be worse than not going down that road.”

Yet he and others in human-rights circles are prepared to give Holder room from the outset for the expected inquiry to germinate into something more systemic — provided that Holder doesn’t explicitly rule such a thing out from the outset. “The question for us is not where an investigation begins, but where it ends,” said Jameel Jaffer, the head of the ACLU’s national-security project. “If the attorney general were to grant immunity to senior officials, that’s something we’d react very negatively to. But if the attorney general announces a narrower investigation but not foreclose on a broader one, we’d probably say that’s an important first step, a crucial step, and now [a prosecutor] should be given prosecutorial authority to follow the facts.”

Several in the civil-liberties community argued that an investigation that didn’t explicitly rule out examining the role of senior administration officials and legal advisers would naturally examine their role in torture, since it would be impossible to establish that a low-level interrogator exceeded legal guidance without establishing what that guidance was and what legal legitimacy it enjoyed. “The boundaries are the boundaries of illegitimate memos,” said Jaffer’s colleague Melissa Goodman, a staff attorney with the ACLU.

Vince Warren, the executive director of the Center for Constitutional Rights, added that he saw a de facto convergence of interests with the CIA, an agency that the human rights community more often views adversarially. “If investigators are only looking at low-level people, low-level people necessarily have to say, ‘I was just following orders, you have to look at these folks [who gave the orders], without them I wouldn’t have done it,’” Warren said. “There’s an opportunity for people in CIA to agree with idea that looking at these issues just from the point of contact, if you will, is completely missing how this entire torture system operated.”

A spokeswoman for the Justice Department, Tracy Schmaler, said the department would not comment on the “decision [or] timing” about any prospective torture inquiry.

Even so, Monday is the deadline set by a federal judge in New York, Alvin Hellerstein, in a case brought by the ACLU for the Obama administration to disclose a 2004 report authored by John Helgerson, the former inspector general of the CIA, about the agency’s implementation of the Bush administration’s torture policies. Much of the contours of Helgerson’s report are now familiar, particularly after Holder declassified memoranda from the Justice Department’s Office of Legal Counsel that reference the report in its footnotes. The report was the source of the revelation, first reported by Marcy Wheeler, that CIA interrogators waterboarded 9/11 mastermind Khalid Shaikh Mohammed 183 times and his colleague Abu Zubaydah 83 times.

Civil libertarians object to the idea that those who decided waterboarding was legal and desirable ought to be exempt from prosecution while those who implemented it beyond the guidelines of legal memoranda ought to be targeted. Warren called that “torture by legal memo” and said such an inquiry would “parallel the way the Bush administration handled Abu Ghraib.”

Yet some fear the release of Helgerson’s report will create political pressures similar to those of the infamous Abu Ghraib photos: to focus on the lurid and gruesome incidents documented, rather than the policies that engendered them. “Some people disagree with me and say we should support anything that takes us down this road” to an investigation, Malinowski said. “I really hope on Monday I’ll be able to do that, depending on how Holder finesses it and how much space there is in the process he announces to explore the culpability of those who engaged in this behavior, regardless how explicit he is.”

In anticipation of the outcry on the right over an inquiry, the ACLU’s Goodman contended that exempting Bush administration officials from an investigation would be a politicization of justice. “What is political is when you give a free pass to politicians,” she said. “Enforcement is neutral, important thing.” When Goodman made a similar point at the progressive political convention, Netroots Nation, on Saturday in Pittsburgh, Fox’s Bill O’Reilly ran a clip of her after narrating that liberals like Goodman “don’t much like America” — a potential indication of the battles to come over prosecuting the architects of the Bush administration’s torture policies.

As for Drumheller, the former CIA official demurred on the prospect of a de facto alliance with the civil liberties community. But he made a point that many in the community endorse. “This was carried out as a policy at a time of great stress for the country, a tricky situation,” Drumheller said. “I fear there’s a temptation [that] the easiest course is to find low-level people who, in view of someone, exceeded their brief and concentrate on that. That will miss whole purpose of the issue.”

Follow Spencer Ackerman on Twitter


Comments

11 Comments

johnhkennedy
Comment posted August 22, 2009 @ 3:11 pm

Does Obama Prefer a Double Standard Of Justice, one for you and I in which we are always prosecuted, and Another Standard of Justice For Elected and Appointed Federal Officials Where Our Politicians Are Always Protected From Prosecution by their successors, in this case Obama and his appointee lawyers.

WHY DOES OBAMA REFUSE TO ENFORCE OUR FEDERAL TORTURE LAW?

Why is Obama covering up the Bush-Cheney Torture Crimes?

KEEP ASKING ALL POLITICIANS AT ALL PUBLIC EVENTS

“WHY DO YOU SUPPORT TORTURE?” If they aren't actively calling for enforcement of our Federal Torture Laws, They DO Support Torture.

SIGN THE PETITIONS
Demanding
both a Commission of Inquiry
and a Special Prosecutor
For All Their Crimes
at ANGRYVOTERS.ORG

http://ANGRYVOTERS.ORG

Over 250,000 signed Add your Signature Today

Only Prosecution Stops Torture!

Only Prosecution Stops Violations of Our Constitution and Rule Of Law.


johnhkennedy
Comment posted August 22, 2009 @ 3:25 pm

Don't be delicate. PUSH OBAMA HARD TO PROSECUTE!!!!

KEEP ASKING ALL POLITICIANS AT ALL PUBLIC EVENTS

“WHY DO YOU SUPPORT TORTURE?” If they aren't actively calling for enforcement of our Federal Torture Laws, They DO Support Torture.

SIGN THE PETITIONS
Demanding
both a Commission of Inquiry
and a Special Prosecutor
For All Their Crimes
at ANGRYVOTERS.ORG

http://ANGRYVOTERS.ORG

Over 250,000 signed Add your Signature Today

Only Prosecution Stops Torture!

Only Prosecution Stops Violations of Our Constitution and Rule Of Law.


johnhkennedy
Comment posted August 23, 2009 @ 9:10 pm

2 weeks ago
The Torture Momos were used to con normally law abiding, patriotic CIA and FBI agents and US Soldiers into violating our Federal Anti-Torture Laws. Panetta has become a major part of the current torture cover up.

The fact is that it is the CIA's own leadership that put their agents in danger of prosecution simply by leadership's not obeying and respecting our Federal Laws and Constitution. But then CIA wishes to be exempt from all laws in any country in which it operates, including the United States.

Bush and Cheney attempted to ignore the law and thereby put all CIA agents who tortured or conspired to torture, even if they meant well (chuckle), at serious risk of Federal prosecution. That the leadership of CIA was corrupt at the time does not make what they did any less illegal.

And Attorney General Holder's special prosecutor-trial balloon is designed to try to get away with a very narrowly focused, very limited investigation of only a few criminals who tortured using methods worse than the
ALREADY ILLEGAL Torture Methods In Bush's Torture Memos.

We voters need a complete investigation of all the abuses of power and violations of Federal Laws under Bush and Cheney. Holder's tightly focused, limited investigation of torture that violated the “Bush Cheney Torture Memos” Is Just More Cover Up.

The problem here is that Attorney General Holder seems to be leaning toward a very narrow investigation about the “wrong” Torture violations.

Holder appears to be saying that the Bush “Torture Memos” have the force of law, that the memos became new torture law and that he only has to prosecute violations which were outside of the Torture allowed by the memos. That is false.

The “Torture Memos” themselves are a criminal conspiracy to evade our Federal Anti-Torture Laws and to render our Federal Torture Law moot. A presidentially appointed lawyer can't make or change Federal Laws no matter who appoints them. Only Congress can do that.

Prosecute all those that ordered torture in our name, then go after all the other violations of Federal Laws and of our Constitution committed by Bush and Cheney.

The only way to protect lower ranking CIA agents, soldiers and law enforcement agents from prosecution for violating Federal Laws ( while under orders from superiors to do so) is to prosecute the superiors that ordered the illegality in the first place, even if, and especially If it includes former Presidents, Vice Presidents and Directors of the CIA.

Prosecution of the leaders will protect the agents. Enforcement of our Torture Laws will protect our freedoms from the tyranny of the powerful.

“Only Prosecution deters crime”.

SIGN THE PETITIONS
Demanding
both a Commission of Inquiry
and a Special Prosecutor
For All Their Crimes
at ANGRYVOTERS.ORG

http://ANGRYVOTERS.ORG


The Torture Never Stops « Around The Sphere
Pingback posted August 24, 2009 @ 11:21 am

[...] Ackerman: When reporting my story from Friday about civil libertarian reaction to the anticipated Holder torture probe, a recurring fear came up [...]


Holder Declares War On The CIA « Eat It Or Wear It
Pingback posted August 24, 2009 @ 9:54 pm

[...] says CIA Faulted for Conduct at Prisons DOJ probe opens divides with Hill, CIA Liberals and the CIA Civil Liberties Groups Prepare Delicate Message on CIA Probe GOP senators warn Holder against CIA abuse inquiry Republicans warn Holder on probe U.S. Republican [...]


TomDegan
Comment posted August 25, 2009 @ 12:26 pm

Yeah. Let the investigations proceed and the chips fall where they may. In the course of destroying this country, George W. Bush )the First Fool as I loved to call him) undid DECADES of diplomatic protocol.

Were these morons able to get information via torture? Sure they did. Most of that info was false. You see, under those circumstances, the person being tortured will say just about anything. It is quite interesting: no one in this administration (Excuse me, I meant to say, “THAT administration) was smart enough to figure this out.

http://www.tomdegan.blogspot.com

Tom Degan
Goshen, NY


enzofcannizzo
Comment posted August 27, 2009 @ 7:00 pm

I as a member of Federal Law Enforcement who was part of the larger investigation into the attack in New York City in 1993 and the events after 9/11 do not support the action of the ACLU.

I understand full well the meaning of “Rule of Law “since I hold law degrees from United Kingdom and the United States. We are faced with an enemy that have no regard for human life nor basic human rights. This is evidenced by the attacks on Americans both in the United States and foreign venues.

The objective of the CIA is to obtain intelligence and information in the protection of the United States. There is a fine line in which CIA clandestine operations attempted to follow. The CIA IS NOT the FBI, which operates within the United States and is law enforcement agency . The historical record is that there was NO attack on the United States since Tuesday, September 11, 2001 . Was this because our military , intelligence and law enforcemt operated as one force passing information . We recall the “fire wall ” between CIA and FBI a legal answer to the right hand did not know what the left hand was doing

Organizations such as the ACLU is attempting subvert American intelligence service by the employment of the phrase of “Rule of law “. The problem that will be evidenced is that the intelligence community or specifically its members WILL NOT obtain information that will assist this nation in a repeat 9/11 .I would submit would anyone of us take an action and five , eight years down road find yourself in a court of law as a defendent

If the intelligence community is suppressed my question is, “Who shall the American public lay the blame.” Attorney General Eric Holder / President of the United States, interest groups such as ACLU at whose feet ?? Lawyers will use our “word smith “abilities to deflect the blame. I would NEVER approve the inhumane killing of a human being …but to obtain information so that we may protect our nation, which the CIA did , , count me in

Standing by for ACT II of 9/11 …..


Baby_Bird
Comment posted October 1, 2009 @ 6:46 pm

Civil Liberties Groups should prepare to challenge the constitutionality of federal healthcare legislation in the courts.

RE: Baucus Healthcare Reform Bill – Unconstitutional

Before the Senate Finance Committee completes the debate, drafts and votes on passage of a final version of the Baucus Healthcare Reform Bill, you need to know that Article 1 Section 8 of the U. S. Constitution does not grant Congress either the power or authority to enact legislation for overhaul of the nation’s healthcare system as well as a public healthcare option or a Government run single payer healthcare plan.

Specific violations of Article 1 Section 8 of the U. S. Constitution include, but are not limited to:

1. Social engineering of the national health care system or complete overhauling of the healthcare system (including a public healthcare option or Government run single payer healthcare plan, and individual and employer mandates are “Unconstitutional” pursuant to Article 1 Section 8 Clause 1 “The Welfare Clause”, Article 1 Section 8 Clause 3 “The Commerce Clause”, Article 1 Section 8 Clause18, “The Necessary and Proper Clause paired with the Commerce Clause” and the 9th and 10th Amendments to the U. S. Constitution.

2. The highly controversial individual mandate and penalty (or excise tax) of $750 or $1,900 on individuals who do not have health insurance is likewise “Unconstitutional” pursuant to Article 1 Section 8 Clause 1 “The Welfare Clause”, Article 1 Section 8 Clause 3 “The Commerce Clause”, Article 1 Section 8 Clause18, “The Necessary and Proper Clause paired with the Commerce Clause” and the 9th and 10th Amendments to the U. S. Constitution.

3. Specific constitutional problems with both the Baucus Healthcare Reform Bill and H.R. 3200 include, but are not limited to:

a. Outside Washington, DC and the federal territories, the Federal Government does not have the constitutional authority to control healthcare.
b. As can be seen in current healthcare proposals, Congress cannot delegate any of its authority to the Executive Branch.
c. The federal intrusion into the doctor-patient relationship violates the “substantive due process” principle. (Note: simply put, “substantive due process” holds that the 5th and 14th Amendments’ “due process clauses” must protect not only procedural rights but also “substantive” rights which are those more fundamental rights of freedom to do certain things the government may not desire the individual to do. It holds that due process cannot be completely just if it is applied to unjustly deprive a person of his basic human liberties.)
d. Citing the 10th Amendment, the Supreme Court holds that Congress may not “commandeer” state decision-making in the service of federal goals.
e. While Congress may condition grants to states, if those conditions are “coercive” then the mandates contained in the Baucus Healthcare Reform Bill and HR 3200 violate that prohibition against coercion.

It is cautioned that imposing national healthcare has serious “constitutional dimensions”. The seemingly unbridled federal overreaching of Article 1 Section 8 Clause 1, “The General Welfare Clause” of the U. S. Constitution would necessitate the enactment of the Enumerated Powers Act (HR 450) which is currently buried in the Democratic-dominated House Subcommittee on the Constitution, Civil Rights & Civil Liberties.

Probably the overarching constitutional concern is the “individual mandate” which would require every American to have health insurance, if not through an employer then by individual purchase. This requirement would particularly affect young adults, who often choose to save the expense and go without coverage. Without the young to subsidize the old, a comprehensive national health system will not work. But can Congress require every American to buy health insurance? In short, the answer is “No”. The Constitution assigns only limited, enumerated powers to Congress and none of the power to promote the General Welfare regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.

Specific constitutional problems with the “individual mandate” are as follows:

1. If a Healthcare Reform Bill is passed, individuals will be forced to either buy health insurance or not buy health insurance or pay a penalty (i.e., excise tax, excise fee, fine, etc). Of course it’s not constitutional. The 10th Amendment explicitly limits the Federal government to only those functions specifically enumerated in the Constitution. I have reread the Constitution and am still unable to find the clause that permits the Federal government to provide healthcare. A reading of THE FEDERALIST PAPERS clearly dispels the notion that the reference in the Constitution’s Preamble to the promoting the general welfare trumps the 10th Amendment. Because of the vagueness of the “general welfare” clause, the Congress is really trying to stretch its political outreach to overhaul the entire national healthcare system and already has gone way beyond what is mandated by Article 1 Section 8 of the U. S. Constitution.

2. Secondly, both the Baucus Healthcare Reform Bill and HR 3200 contain a provision to amend the Internal Revenue Code of 1986 to impose “Taxes on Individuals Not Obtaining Acceptable Coverage”. This clearly violates Article I, Section 9, paragraph 3 of the Constitution that provides that: “No Bill of Attainder or ex post facto Law will be passed.” Singling out individuals or groups for punitive taxes because they don’t behave as the government demands is clearly prohibited. No one can argue that it would simply be a penalty or sentence for breaking the law because it denies due process and a trial by jury. The government would simply pronounce you guilty and confiscate your money.

Any major healthcare overhaul could face legal tests of constitutionality by the Judicial Branch. Neither the Baucus Healthcare Reform Bill nor HR 3200 cites the commerce clause or any other enumerated power to warrant its authority. In fact, the only reference to the Constitution in any proposed healthcare reform legislation is a severability clause which is intended to spare the remainder of the bill’s provisions if a part is declared unconstitutional. Maybe the drafters of these Bills really do understand the constitutional ramifications after all and are trying to cut their possible losses.

In any event, Congress will have to decide whether it is willing to face a myriad of lawsuits in the federal courts as well as the U. S. Supreme Court regarding the Constitutionality of Healthcare Reform Legislation, including provisions for a public healthcare option as well as both an individual mandate and employer mandate.

It is my belief that it would be in the best interests of Senator Max Baucus, Chairman of the Senate Finance Committee and all Senators to obtain an opinion regarding the “Constitutionality” of the “Individual Mandate” from legal council through the Senate Judiciary Committee. This is necessary to limit the risk of legal tests of constitutionality by a variety of civil liberties unions and groups and the Judicial Branch.


Street-Level Campaigning | OntoreBangladesh
Pingback posted March 8, 2010 @ 11:31 am

[...] talking about this as if it will bring on the end of civilisation, it is talked of as a threat to civil liberty. Obama is of course leading the campaign for free health care and it is an uphill struggle all the [...]


louis vuitton
Comment posted August 5, 2010 @ 6:07 am

Before the Senate Finance Committee completes the debate, drafts and votes on passage of a final version of the Baucus Healthcare Reform Bill, you need to know that Article 1 Section 8 of the U. S. Constitution does not grant Congress either the power or authority to enact legislation for overhaul of the nation’s healthcare system as well as a public healthcare option or a Government run single payer healthcare plan.


Discount Louis Vuitton
Comment posted August 23, 2010 @ 2:15 am

Congress either the power or authority to enact legislation for overhaul of the nation’s healthcare system as well as a public healthcare option or a Government run single payer healthcare plan.


RSS feed for comments on this post.

Sorry, the comment form is closed at this time.