The Robert Jackson Steering Committee Seeks Bush-Era Legal Memoranda Regarding Torture

On Thursday, January 7, an organization of attorneys, journalists and advocates filed a FOIA request for the DOJ's Office of Professional Responsibility's report regarding the conduct of President Bush's top lawyers in the Office of Legal Counsel who authored memoranda purporting to authorize torture and aggressive war. The request also seeks a 10-page rebuttal of the 2008 report by then-Attorney General Michael Mukasey.

See the request and transmittal letter here.

Congress Expected to Pass Bill Permitting Defense Department to Suppress Evidence of its Misconduct

Congress is expected to pass an amendment to the Homeland Security appropriations bill this week that will allow the Defense Department to suppress evidence of its own misconduct.  The amendment has passed the House and is headed to the Senate floor for a final vote.

Sen. Joe Lieberman (I-Conn.) proposed the amendment in response to an appellate court decision requiring the Defense Department to release photos of Afghan and Iraqi prisoner abuse, stemming from a 2003 FOIA request filed by the ACLU.  

More from the LA Times here.

Release of CIA torture report delayed

The ACLU is challenging the delayed release of the CIA's 2004 inspector-general report, The Washington Independent reported. The 200-page report, which is supposed to be declassified as part of an FOIA lawsuit agreement, will not be released before Aug. 31, according to the Justice Department. The ACLU says that the CIA and Justice Department have missed three deadlines already for the disclosure during the five months they've had to review the report.

Word’s coming now that the Obama administration is seeking to withhold the CIA’s 2004 inspector-general report on the implementation of its former “enhanced interrogation regime” until August 31. The ACLU, which had an agreement with the administration to declassify the report as part of a Freedom of Information Act lawsuit, is going to challenge the administration’s efforts. More soon.

Update: Just got a hold of the court documents. Check them out after the jump.

The Justice Department argues that the volume of material it needs to go through in the CIA’s 2004 inspector general report is just too great to meet any pre-August 31 timetable. Not only is the IG report itself 200 pages, that’s just one of 319 documents under review as part of the case.

More here.

Obama reverses stance on torture photos

From the AP:

President Barack Obama declared Wednesday he would try to block the court-ordered release of photos showing U.S. troops abusing prisoners, abruptly reversing his position out of concern the pictures would "further inflame anti-American opinion" and endanger U.S. forces in Iraq and Afghanistan.

The White House had said last month it would not oppose the release of dozens of photos from military investigations of alleged misconduct. But American commanders in the war zones have expressed deep concern about fresh damage the photos might do, especially as the U.S. tries to wind down the Iraq war and step up operations against the Taliban and al-Qaida in Afghanistan.

Obama, realizing how high emotions run on detainee treatment during the Bush administration and now, made it a point to personally explain his change of heart, stopping to address TV cameras late in the day as he left the White House for a flight to Arizona.

More here.

Defense Dept. releases first FOIA documents about secret prisons

The U.S. Defense Department and U.S. Department of State released the first batch of records in response to a 2007 FOIA-based lawsuit, MSNBC reported.

The Department of Defense’s involvement in the CIA’s “ghost” detention program is certain, according to three human rights groups -- Amnesty International USA, the Center for Constitutional Rights and the Center for Human Rights and Global Justice.

They released documents today from the U.S. Department of Defense and U.S. Department of State that, they said, prove the existence of secret prisons at Bagram and in Iraq as well as the Department of Defense cooperation with the CIA ghost detention program. They also said the documents show one case where the Defense sought to delay the release of Guantanamo prisoners.

More here.

Obama fails three early tests

Could his promise have been too good to be true?

The Obama administration, which vowed to usher in a "new era of openness in our country," either has delayed action on requests for access to government records or refused to disclose them in three early, high-profile tests of the pledge.

This week, Justice Department lawyers announced that they'd continue to assert the state secrets argument made by the Bush administration in a lawsuit alleging that five men were tortured abroad in U.S.-run prisons.

In a separate case, the Obama Justice Department has agreed with the Bush administration — at least initially — that the news media shouldn't have immediate access to court records in the ongoing Guantanamo detainee litigation.

More here.

Obama contradiction leads to bill

The Obama administration ruffled quite a few feathers by taking the same position as former President Bush on an issue involving government secrecy and torture, two positions Obama condemned upon entering office. Now legislation has been filed to limit the use of the "state secrets" privilege, the Boston Globe reported. Senate Judiciary Committee Chairman Patrick Leahy said the bill "does not restrict the government's ability to assert the privilege in appropriate cases. In light of the pending cases where this privilege has been invoked, involving issues including torture, rendition and warrantless wiretapping, we can ill afford to delay consideration of this important legislation."

House and Senate committees yesterday introduced bills that would sharply curtail the government's use of the "state secrets" privilege, a policy used by President Bush to argue that a lawsuit involving allegations of torture should be dismissed - and a position that the Obama administration has now adopted.

Drafted and filed separately by the House and Senate Judiciary committees, the legislation was filed just days after Justice Department lawyers working for the new administration told a federal appeals court that its position did not differ from the Bush administration's: the court should throw out a lawsuit that accuses Jeppesen Inc., of helping the CIA secretly transport five terrorism suspects overseas for harsh interrogations, on the grounds that the suit involved state secrets that, if revealed, could jeopardize national security.

More here.

Obama reaffirms one of Bush's state security privileges

Several judges for the U.S. Ninth Circuit Court of Appeals were shocked when Obama's administration agreed with the Bush administration's handling of a "case involving rendition and torture," The New York Times reported. It was argued that the state secret privilege was for national security reasons, prompting anger from the ACLU.

In a closely watched case involving rendition and torture, a lawyer for the Obama administration seemed to surprise a panel of federal appeals judges on Monday by pressing ahead with an argument for preserving state secrets originally developed by the Bush administration.

In the case, Binyam Mohamed, an Ethiopian native, and four other detainees filed suit against a subsidiary of Boeing for arranging flights for the Bush administration’s “extraordinary rendition” program, in which terrorism suspects were secretly taken to other countries, where they say they were tortured. The Bush administration argued that the case should be dismissed because even discussing it in court could threaten national security and relations with other nations.

During the campaign, Mr. Obama harshly criticized the Bush administration’s treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantánamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.

More here.

Latest Torture Memo Released Under FOIA

In the Washington Post and a host of other papers came stories today of a 2002 memo, or bits and pieces of it anyway...

The American Civil Liberties Union yesterday released three heavily blacked-out documents it received as a result of its ongoing, four-year-old Freedom of Information Act lawsuit. One document is a previously undisclosed August 2002 memo to the CIA from the Justice Department Office of Legal Counsel, which essentially offers a guide to how to torture and get away with it.

Here's an excerpt:

"To violate the statute, an individual must have the specific intent to inflict severe pain or suffering. Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture. As we previously opined, to have the required specific intent, an individual must expressly intend to cause such severe pain or suffering. . . . We have further found that if a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent. . . . A defendant acts in good faith when he has an honest belief that his actions will not result in severe pain and suffering. . . . Although an honest belief need not be reasonable, such a belief is easier to establish where there is a reasonable basis for it.

"Based on the information you have provided us, we believe that those carrying out these procedures would not have the specific intent to inflict severe physical pain or suffering. . . .

More here.