By SCOTT SHANE, DAVID JOHNSTON and JAMES RISEN
WASHINGTON, Oct. 3 — When the Justice Department publicly declared torture “abhorrent” in a legal opinion in December 2004, the Bush administration appeared to have abandoned its assertion of nearly unlimited presidential authority to order brutal interrogations.
But soon after
Alberto R. Gonzales’s arrival as attorney general in February 2005, the Justice Department issued another opinion, this one in secret. It was a very different document, according to officials briefed on it, an expansive endorsement of the harshest interrogation techniques ever used by the
Central Intelligence Agency.
The new opinion, the officials said, for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures.
Mr. Gonzales approved the legal memorandum on “combined effects” over the objections of
James B. Comey, the deputy attorney general, who was leaving his job after bruising clashes with the White House. Disagreeing with what he viewed as the opinion’s overreaching legal reasoning, Mr. Comey told colleagues at the department that they would all be “ashamed” when the world eventually learned of it.
Later that year, as Congress moved toward outlawing “cruel, inhuman and degrading” treatment, the Justice Department issued another secret opinion, one most lawmakers did not know existed, current and former officials said. The Justice Department document declared that none of the C.I.A. interrogation methods violated that standard.
The classified opinions, never previously disclosed, are a hidden legacy of President Bush’s second term and Mr. Gonzales’s tenure at the Justice Department, where he moved quickly to align it with the White House after a 2004 rebellion by staff lawyers that had thrown policies on surveillance and detention into turmoil.
Congress and the Supreme Court have intervened repeatedly in the last two years to impose limits on interrogations, and the administration has responded as a policy matter by dropping the most extreme techniques. But the 2005 Justice Department opinions remain in effect, and their legal conclusions have been confirmed by several more recent memorandums, officials said. They show how the White House has succeeded in preserving the broadest possible legal latitude for harsh tactics.
A White House spokesman, Tony Fratto, said Wednesday that he would not comment on any legal opinion related to interrogations. Mr. Fratto added, “We have gone to great lengths, including statutory efforts and the recent executive order, to make it clear that the intelligence community and our practices fall within U.S. law” and international agreements.
More than two dozen current and former officials involved in counterterrorism were interviewed over the past three months about the opinions and the deliberations on interrogation policy. Most officials would speak only on the condition of anonymity because of the secrecy of the documents and the C.I.A. detention operations they govern.
When he stepped down as attorney general in September after widespread criticism of the firing of federal prosecutors and withering attacks on his credibility, Mr. Gonzales talked proudly in a farewell speech of how his department was “a place of inspiration” that had balanced the necessary flexibility to conduct the war on terrorism with the need to uphold the law.
Associates at the Justice Department said Mr. Gonzales seldom resisted pressure from Vice President
Dick Cheney and David S. Addington, Mr. Cheney’s counsel, to endorse policies that they saw as effective in safeguarding Americans, even though the practices brought the condemnation of other governments, human rights groups and Democrats in Congress. Critics say Mr. Gonzales turned his agency into an arm of the Bush White House, undermining the department’s independence.
The interrogation opinions were signed by Steven G. Bradbury, who since 2005 has headed the elite Office of Legal Counsel at the Justice Department. He has become a frequent public defender of the
National Security Agency’s domestic surveillance program and detention policies at Congressional hearings and press briefings, a role that some legal scholars say is at odds with the office’s tradition of avoiding political advocacy.
Mr. Bradbury defended the work of his office as the government’s most authoritative interpreter of the law. “In my experience, the White House has not told me how an opinion should come out,” he said in an interview. “The White House has accepted and respected our opinions, even when they didn’t like the advice being given.”
The debate over how terrorism suspects should be held and questioned began shortly after the Sept. 11, 2001, attacks, when the Bush administration adopted secret detention and coercive interrogation, both practices the United States had previously denounced when used by other countries. It adopted the new measures without public debate or Congressional vote, choosing to rely instead on the confidential legal advice of a handful of appointees.
The policies set off bruising internal battles, pitting administration moderates against hard-liners, military lawyers against Pentagon chiefs and, most surprising, a handful of conservative lawyers at the Justice Department against the White House in the stunning mutiny of 2004. But under Mr. Gonzales and Mr. Bradbury, the Justice Department was wrenched back into line with the White House.
After the Supreme Court ruled in 2006 that the Geneva Conventions applied to prisoners who belonged to
Al Qaeda, President Bush for the first time acknowledged the C.I.A.’s secret jails and ordered their inmates moved to Guantánamo Bay, Cuba. The C.I.A. halted its use of waterboarding, or pouring water over a bound prisoner’s cloth-covered face to induce fear of suffocation.
But in July, after a monthlong debate inside the administration, President Bush signed a new executive order authorizing the use of what the administration calls “enhanced” interrogation techniques — the details remain secret — and officials say the C.I.A. again is holding prisoners in “black sites” overseas. The executive order was reviewed and approved by Mr. Bradbury and the Office of Legal Counsel.
Douglas W. Kmiec, who headed that office under President
Ronald Reagan and the first President George Bush and wrote a book about it, said he believed the intense pressures of the campaign against terrorism have warped the office’s proper role.
“The office was designed to insulate against any need to be an advocate,” said Mr. Kmiec, now a conservative scholar at
Pepperdine University law school. But at times in recent years, Mr. Kmiec said, the office, headed by
William H. Rehnquist and
Antonin Scalia before they served on the Supreme Court, “lost its ability to say no.”
“The approach changed dramatically with opinions on the war on terror,” Mr. Kmiec said. “The office became an advocate for the president’s policies.”
From the secret sites in Afghanistan, Thailand and Eastern Europe where C.I.A. teams held Qaeda terrorists, questions for the lawyers at C.I.A. headquarters arrived daily. Nervous interrogators wanted to know: Are we breaking the laws against torture?
The Bush administration had entered uncharted legal territory beginning in 2002, holding prisoners outside the scrutiny of the International Red Cross and subjecting them to harrowing pressure tactics. They included slaps to the head; hours held naked in a frigid cell; days and nights without sleep while battered by thundering rock music; long periods manacled in stress positions; or the ultimate, waterboarding.
Never in history had the United States authorized such tactics. While President Bush and C.I.A. officials would later insist that the harsh measures produced crucial intelligence, many veteran interrogators, psychologists and other experts say that less coercive methods are equally or more effective.
With virtually no experience in interrogations, the C.I.A. had constructed its program in a few harried months by consulting Egyptian and Saudi intelligence officials and copying Soviet interrogation methods long used in training American servicemen to withstand capture. The agency officers questioning prisoners constantly sought advice from lawyers thousands of miles away.
“We were getting asked about combinations — ‘Can we do this and this at the same time?’” recalled Paul C. Kelbaugh, a veteran intelligence lawyer who was deputy legal counsel at the C.I.A.’s Counterterrorist Center from 2001 to 2003.
Interrogators were worried that even approved techniques had such a painful, multiplying effect when combined that they might cross the legal line, Mr. Kelbaugh said. He recalled agency officers asking: “These approved techniques, say, withholding food, and 50-degree temperature — can they be combined?” Or “Do I have to do the less extreme before the more extreme?”
The questions came more frequently, Mr. Kelbaugh said, as word spread about a C.I.A. inspector general inquiry unrelated to the war on terrorism. Some veteran C.I.A. officers came under scrutiny because they were advisers to Peruvian officers who in early 2001 shot down a missionary flight they had mistaken for a drug-running aircraft. The Americans were not charged with crimes, but they endured three years of investigation, saw their careers derailed and ran up big legal bills.
That experience shook the Qaeda interrogation team, Mr. Kelbaugh said. “You think you’re making a difference and maybe saving 3,000 American lives from the next attack. And someone tells you, ‘Well, that guidance was a little vague, and the inspector general wants to talk to you,’” he recalled. “We couldn’t tell them, ‘Do the best you can,’ because the people who did the best they could in Peru were looking at a grand jury.”
Mr. Kelbaugh said the questions were sometimes close calls that required consultation with the Justice Department. But in August 2002, the department provided a sweeping legal justification for even the harshest tactics.
That opinion, which would become infamous as “the torture memo” after it was leaked, was written largely by John Yoo, a young Berkeley law professor serving in the Office of Legal Counsel. His broad views of presidential power were shared by Mr. Addington, the vice president’s adviser. Their close alliance provoked
John Ashcroft, then the attorney general, to refer privately to Mr. Yoo as Dr. Yes for his seeming eagerness to give the White House whatever legal justifications it desired, a Justice Department official recalled.
Mr. Yoo’s memorandum said no interrogation practices were illegal unless they produced pain equivalent to organ failure or “even death.” A second memo produced at the same time spelled out the approved practices and how often or how long they could be used.
Despite that guidance, in March 2003, when the C.I.A. caught
Khalid Sheikh Mohammed, the chief planner of the Sept. 11 attacks, interrogators were again haunted by uncertainty. Former intelligence officials, for the first time, disclosed that a variety of tough interrogation tactics were used about 100 times over two weeks on Mr. Mohammed. Agency officials then ordered a halt, fearing the combined assault might have amounted to illegal torture. A C.I.A. spokesman, George Little, declined to discuss the handling of Mr. Mohammed. Mr. Little said the program “has been conducted lawfully, with great care and close review” and “has helped our country disrupt terrorist plots and save innocent lives.”
“The agency has always sought a clear legal framework, conducting the program in strict accord with U.S. law, and protecting the officers who go face-to-face with ruthless terrorists,” Mr. Little added.
Some intelligence officers say that many of Mr. Mohammed’s statements proved exaggerated or false. One problem, a former senior agency official said, was that the C.I.A.’s initial interrogators were not experts on Mr. Mohammed’s background or Al Qaeda, and it took about a month to get such an expert to the secret prison. The former official said many C.I.A. professionals now believe patient, repeated questioning by well-informed experts is more effective than harsh physical pressure.
Other intelligence officers, including Mr. Kelbaugh, insist that the harsh treatment produced invaluable insights into Al Qaeda’s structure and plans.
“We leaned in pretty hard on K.S.M.,” Mr. Kelbaugh said, referring to Mr. Mohammed. “We were getting good information, and then they were told: ‘Slow it down. It may not be correct. Wait for some legal clarification.’”
The doubts at the C.I.A. proved prophetic. In late 2003, after Mr. Yoo left the Justice Department, the new head of the Office of Legal Counsel,
Jack Goldsmith, began reviewing his work, which he found deeply flawed. Mr. Goldsmith infuriated White House officials, first by rejecting part of the National Security Agency’s surveillance program, prompting the threat of mass resignations by top Justice Department officials, including Mr. Ashcroft and Mr. Comey, and a showdown at the attorney general’s hospital bedside.
Then, in June 2004, Mr. Goldsmith formally withdrew the August 2002 Yoo memorandum on interrogation, which he found overreaching and poorly reasoned. Mr. Goldsmith left the Justice Department soon afterward. He first spoke at length about his dissenting views to The New York Times last month, and testified before the Senate Judiciary Committee on Tuesday.
Six months later, the Justice Department quietly posted on its Web site a new legal opinion that appeared to end any flirtation with torture, starting with its clarionlike opening: “Torture is abhorrent both to American law and values and to international norms.”
A single footnote — added to reassure the C.I.A. — suggested that the Justice Department was not declaring the agency’s previous actions illegal. But the opinion was unmistakably a retreat. Some White House officials had opposed publicizing the document, but acquiesced to Justice Department officials who argued that doing so would help clear the way for Mr. Gonzales’s confirmation as attorney general.
If President Bush wanted to make sure the Justice Department did not rebel again, Mr. Gonzales was the ideal choice. As White House counsel, he had been a fierce protector of the president’s prerogatives. Deeply loyal to Mr. Bush for championing his career from their days in Texas, Mr. Gonzales would sometimes tell colleagues that he had just one regret about becoming attorney general: He did not see nearly as much of the president as he had in his previous post.
Among his first tasks at the Justice Department was to find a trusted chief for the Office of Legal Counsel. First he informed Daniel Levin, the acting head who had backed Mr. Goldsmith’s dissents and signed the new opinion renouncing torture, that he would not get the job. He encouraged Mr. Levin to take a position at the
National Security Council, in effect sidelining him.
Mr. Bradbury soon emerged as the presumed favorite. But White House officials, still smarting from Mr. Goldsmith’s rebuffs, chose to delay his nomination.
Harriet E. Miers, the new White House counsel, “decided to watch Bradbury for a month or two. He was sort of on trial,” one Justice Department official recalled.
Mr. Bradbury’s biography had a Horatio Alger element that appealed to a succession of bosses, including Justice
Clarence Thomas of the Supreme Court and Mr. Gonzales, the son of poor immigrants. Mr. Bradbury’s father had died when he was an infant, and his mother took in laundry to support her children. The first in his family to go to college, he attended Stanford and the
University of Michigan Law School. He joined the law firm of Kirkland & Ellis, where he came under the tutelage of
Kenneth W. Starr, the Whitewater independent prosecutor.
Mr. Bradbury belonged to the same circle as his predecessors: young, conservative lawyers with sterling credentials, often with clerkships for prominent conservative judges and ties to the Federalist Society, a powerhouse of the legal right. Mr. Yoo, in fact, had proposed his old friend Mr. Goldsmith for the Office of Legal Counsel job; Mr. Goldsmith had hired Mr. Bradbury as his top deputy.
“We all grew up together,” said Viet D. Dinh, an assistant attorney general from 2001 to 2003 and very much a member of the club. “You start with a small universe of Supreme Court clerks, and you narrow it down from there.”
But what might have been subtle differences in quieter times now cleaved them into warring camps.
Justice Department colleagues say Mr. Gonzales was soon meeting frequently with Mr. Bradbury on national security issues, a White House priority. Admirers describe Mr. Bradbury as low-key but highly skilled, a conciliator who brought from 10 years of corporate practice a more pragmatic approach to the job than Mr. Yoo and Mr. Goldsmith, both from the academic world.
“As a practicing lawyer, you know how to address real problems,” said Noel J. Francisco, who worked at the Justice Department from 2003 to 2005. “At O.L.C., you’re not writing law review articles and you’re not theorizing. You’re giving a client practical advice on a real problem.”
As he had at the White House, Mr. Gonzales usually said little in meetings with other officials, often deferring to the hard-driving Mr. Addington. Mr. Bradbury also often appeared in accord with the vice president’s lawyer.
Mr. Bradbury appeared to be “fundamentally sympathetic to what the White House and the C.I.A. wanted to do,” recalled Philip Zelikow, a former top State Department official. At interagency meetings on detention and interrogation, Mr. Addington was at times “vituperative,” said Mr. Zelikow, but Mr. Bradbury, while taking similar positions, was “professional and collegial.”
While waiting to learn whether he would be nominated to head the Office of Legal Counsel, Mr. Bradbury was in an awkward position, knowing that a decision contrary to White House wishes could kill his chances.
Charles J. Cooper, who headed the Office of Legal Counsel under President Reagan, said he was “very troubled” at the notion of a probationary period.
“If the purpose of the delay was a tryout, I think they should have avoided it,” Mr. Cooper said. “You’re implying that the acting official is molding his or her legal analysis to win the job.”
Mr. Bradbury said he made no such concessions. “No one ever suggested to me that my nomination depended on how I ruled on any opinion,” he said. “Every opinion I’ve signed at the Office of Legal Counsel represents my best judgment of what the law requires.”
Scott Horton, an attorney affiliated with Human Rights First who has closely followed the interrogation debate, said any official offering legal advice on the campaign against terror was on treacherous ground.
“For government lawyers, the national security issues they were deciding were like working with nuclear waste — extremely hazardous to their health,” Mr. Horton said.
“If you give the administration what it wants, you’ll lose credibility in the academic community,” he said. “But if you hold back, you’ll be vilified by conservatives and the administration.”
In any case, the White House grew comfortable with Mr. Bradbury’s approach. He helped block the appointment of a liberal
Ivy League law professor to a career post in the Office of Legal Counsel. And he signed the opinion approving combined interrogation techniques.
Mr. Comey strongly objected and told associates that he advised Mr. Gonzales not to endorse the opinion. But the attorney general made clear that the White House was adamant about it, and that he would do nothing to resist.
Under Mr. Ashcroft, Mr. Comey’s opposition might have killed the opinion. An imposing former prosecutor and self-described conservative who stands 6-foot-8, he was the rare administration official who was willing to confront Mr. Addington. At one testy 2004 White House meeting, when Mr. Comey stated that “no lawyer” would endorse Mr. Yoo’s justification for the N.S.A. program, Mr. Addington demurred, saying he was a lawyer and found it convincing. Mr. Comey shot back: “No good lawyer,” according to someone present.
But under Mr. Gonzales, and after the departure of Mr. Goldsmith and other allies, the deputy attorney general found himself isolated. His troublemaking on N.S.A. and on interrogation, and in appointing his friend
Patrick J. Fitzgerald as special prosecutor in the C.I.A. leak case, which would lead to the perjury conviction of
I. Lewis Libby, Mr. Cheney’s chief of staff, had irreparably offended the White House.
“On national security matters generally, there was a sense that Comey was a wimp and that Comey was disloyal,” said one Justice Department official who heard the White House talk, expressed with particular force by Mr. Addington.
Mr. Comey provided some hints of his thinking about interrogation and related issues in a speech that spring. Speaking at the N.S.A.’s Fort Meade campus on Law Day — a noteworthy setting for the man who had helped lead the dissent a year earlier that forced some changes in the N.S.A. program — Mr. Comey spoke of the “agonizing collisions” of the law and the desire to protect Americans.
“We are likely to hear the words: ‘If we don’t do this, people will die,’” Mr. Comey said. But he argued that government lawyers must uphold the principles of their great institutions.
“It takes far more than a sharp legal mind to say ‘no’ when it matters most,” he said. “It takes moral character. It takes an understanding that in the long run, intelligence under law is the only sustainable intelligence in this country.”
Mr. Gonzales’s aides were happy to see Mr. Comey depart in the summer of 2005. That June, President Bush nominated Mr. Bradbury to head the Office of Legal Counsel, which some colleagues viewed as a sign that he had passed a loyalty test.
Soon Mr. Bradbury applied his practical approach to a new challenge to the C.I.A.’s methods.
The administration had always asserted that the C.I.A.’s pressure tactics did not amount to torture, which is banned by federal law and international treaty. But officials had privately decided the agency did not have to comply with another provision in the Convention Against Torture — the prohibition on “cruel, inhuman, or degrading” treatment.
Now that loophole was about to be closed. First Senator Richard J. Durbin, Democrat of Illinois, and then Senator
John McCain, the Arizona Republican who had been tortured as a prisoner in North Vietnam, proposed legislation to ban such treatment.
At the administration’s request, Mr. Bradbury assessed whether the proposed legislation would outlaw any C.I.A. methods, a legal question that had never before been answered by the Justice Department.
At least a few administration officials argued that no reasonable interpretation of “cruel, inhuman or degrading” would permit the most extreme C.I.A. methods, like waterboarding. Mr. Bradbury was placed in a tough spot, said Mr. Zelikow, the State Department counselor, who was working at the time to rein in interrogation policy.
“If Justice says some practices are in violation of the C.I.D. standard,” Mr. Zelikow said, referring to cruel, inhuman or degrading, “then they are now saying that officials broke current law.”
In the end, Mr. Bradbury’s opinion delivered what the White House wanted: a statement that the standard imposed by Mr. McCain’s Detainee Treatment Act would not force any change in the C.I.A.’s practices, according to officials familiar with the memo.
Relying on a Supreme Court finding that only conduct that “shocks the conscience” was unconstitutional, the opinion found that in some circumstances not even waterboarding was necessarily cruel, inhuman or degrading, if, for example, a suspect was believed to possess crucial intelligence about a planned terrorist attack, the officials familiar with the legal finding said.
In a frequent practice, Mr. Bush attached a statement to the new law when he signed it, declaring his authority to set aside the restrictions if they interfered with his constitutional powers. At the same time, though, the administration responded to pressure from Mr. McCain and other lawmakers by reviewing interrogation policy and giving up several C.I.A. techniques.
Since late 2005, Mr. Bradbury has become a linchpin of the administration’s defense of counterterrorism programs, helping to negotiate the Military Commissions Act last year and frequently testifying about the N.S.A. surveillance program. Once he answered questions about administration detention policies for an “Ask the White House” feature on a Web site.
Mr. Kmiec, the former Office of Legal Counsel head now at Pepperdine, called Mr. Bradbury’s public activities a departure for an office that traditionally has shunned any advocacy role.
A senior administration official called Mr. Bradbury’s active role in shaping legislation and speaking to Congress and the press “entirely appropriate” and consistent with past practice. The official, who spoke on the condition of anonymity, said Mr. Bradbury “has played a critical role in achieving greater transparency” on the legal basis for detention and surveillance programs.
Though President Bush repeatedly nominated Mr. Bradbury as the Office of Legal Counsel’s assistant attorney general, Democratic senators have blocked the nomination. Senator Durbin said the Justice Department would not turn over copies of his opinions or other evidence of Mr. Bradbury’s role in interrogation policy.
“There are fundamental questions about whether Mr. Bradbury approved interrogation methods that are clearly unacceptable,” Mr. Durbin said.
John D. Hutson, who served as the Navy’s top lawyer from 1997 to 2000, said he believed that the existence of legal opinions justifying abusive treatment is pernicious, potentially blurring the rules for Americans handling prisoners.
“I know from the military that if you tell someone they can do a little of this for the country’s good, some people will do a lot of it for the country’s better,” Mr. Hutson said. Like other military lawyers, he also fears that official American acceptance of such treatment could endanger Americans in the future.
“The problem is, once you’ve got a legal opinion that says such a technique is O.K., what happens when one of our people is captured and they do it to him? How do we protest then?” he asked.
Labels: Bush Administration, torture
# posted by David @ Thursday, October 04, 2007
0 comments 
By Joseph L. Galloway | McClatchy Newspapers
Well, now we’ve heard from General David Petraeus and Ambassador Ryan Crocker and President George W. Bush, and it appears that the Surge has succeeded — succeeded in guaranteeing that the Iraq War will drag on for the last 16 months of the Bush presidency at a cost of another 1,600 American dead and $13 billion a month.
Extending the war, kicking that can down the road, was President Bush’s only strategic objective last January when he came up with the idea of escalating the number of American troops in Iraq from 130,000 to today’s 170,000. Put simply, the Decider wants to hand off the decision to pull the plug on his unwinnable war to someone else, anyone else.
Four and a half years after this president ordered the invasion of Iraq in a gross act of arrogance and ignorance based on faulty, bogus and politically twisted intelligence — and after repeatedly changing the rationales and objectives of the war as each has failed in turn — we’re going to continue this war because George W. Bush is incapable of admitting that he was wrong, wrong, wrong.
Leaving aside all the happy talk we heard this week about how much better the security picture is in Baghdad, the fact is that the escalation or surge has failed utterly. The stated purpose of this exercise was to buy breathing room for the faltering government of Prime Minister Nouri al Maliki and the paralyzed Iraqi parliament to make progress toward national reconciliation.
The Iraqi government’s job was to use this breathing room, bought at the cost of American lives and American treasure, to step back from sectarian murder and civil war, which it’s failed to do, may be totally incapable of doing and may not even be interested in doing.
Every American commander in Iraq has stated the obvious from Day One: This war cannot be won militarily. It cannot be won by American troops. It cannot be won by wishful thinking. It can only be won by the Iraqis themselves, and their definition of victory is built on dreams of bloody revenge and the slaughter of innocents.
When our president talks of peace returning to the streets of Baghdad, he mistakes the silence of empty, abandoned homes and sectarian cleansing for progress. He confuses the segregation of Shia and Sunni, each in their own ghettos behind tall concrete walls, for progress. More than 3 million Iraqis have been driven from their homes and neighborhoods into exile, internal or external, and this he calls success.
He and the two yes-men, Petraeus and Crocker, crowed about victory in Anbar province as though American tactics and strategy had something to do with a revolutionary turnaround among Sunni tribal sheiks who, long after even the U.S. Marines were admitting defeat in Anbar, acted in their own self-interest and struck against the al Qaeda in Iraq operatives who were killing their people, their own children.
This week, one of the key authors of that change, a man President Bush singled out on his secret fly-by-night visit to Anbar, was blown apart by the enemy near his own home.
All the while, Prime Minister Maliki and his majority Shia government grit their teeth at the spectacle of their American allies supporting and financing and even recruiting the hated Sunnis into the army and police forces, thus making them a harder nut to crack when the night of the long knives, the dark night of Shia revenge, eventually arrives.
The president announced that he was taking Gen. Petraeus’ advice and ordering the beginning of 10-month gradual drawdown of the extra 30,000 troops of the surge — a drawdown that everyone knew was inevitable simply because our Army and Marine Corps cannot sustain that level of troops in Iraq beyond next March.
On the schedule the president laid down this week, we’ll still have some 138,000 troops on the ground in Iraq next July, and 100,000 on January 20, 2009, when Bush’s successor will take office, and he made it clear that he hopes to have agreements in place to ensure an American military presence there for many years to come.
Will Bush get away with this? From all the evidence at hand, the answer, sadly, is yes. Only the Democrats in Congress stand in his way, and they have yet to find their spines, or a semblance of moral courage, or even a sufficient understanding of the Constitution and its clauses on war making and war-financing, to override The Decider.
It’s a long journey from now to January 20, 2009, and the blood of many Americans and even more Iraqis will flow freely and stain the hands of those who allow this insane war to continue at the behest of a stubborn, unseeing, unthinking man from Crawford, Texas.
Labels: Bush Administration, Iraq
# posted by David @ Sunday, September 16, 2007
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WASHINGTON, Sept. 1 — In March 2005, the Consumer Product Safety Commission called together the nation’s top safety experts to confront an alarming statistic: 44,000 children riding all terrain vehicles were injured the previous year, nearly 150 of them fatally.
National associations of pediatricians, consumer advocates and emergency room doctors were urging the commission to ban sales of adult-size A.T.V.’s for use by children under 16 because the machines were too big and fast for young drivers to control. But when it came time to consider such a step, a staff member whose name did not appear on the meeting agenda unexpectedly weighed in.
“My own view is the situation is not necessarily deteriorating,” said John Gibson Mullan, the agency’s director of compliance and a former lawyer for the A.T.V. industry, according to a recording. The current system of warning labels and other voluntary safety standards was working, he said. “We would need to be very careful about making any changes.”
Robin L. Ingle, then the agency’s hazard statistician and A.T.V. injury expert, was dumbfounded. Her months of research did not support Mr. Mullan’s analysis. Yet she would not get to offer a rebuttal.
“He had hijacked the presentation,” Ms. Ingle said in an interview. “He was distorting the numbers in order to benefit industry and defeat the petition. It was almost like he still worked for them, not us.”
Under the Bush administration, which promised to ease what it viewed as costly rules that placed unnecessary burdens on businesses, industry-friendly officials have been installed at agencies that oversee the nation’s workplaces, food suppliers, environment and consumer goods.
Top officials at the Consumer Product Safety Commission say they have enhanced protections for the American public in recent years. But they have also blocked enforcement actions, weakened industry oversight rules and promoted voluntary compliance over safety mandates, according to interviews with current and former senior agency officials and consumer groups and a review of commission documents.
At a time when imports from China and other Asian countries surged, creating an ever greater oversight challenge, the Bush-appointed commissioners voiced few objections as the already tiny agency — now just 420 workers — was pared almost to the bone.
At the nation’s ports, the handful of agency inspectors are hard pressed to find dangerous cargo before it enters the country; instead, they rely on other federal agents, who mostly act as trademark enforcers, looking for counterfeit Nike sneakers or Duracell batteries.
At the agency’s cramped laboratory, a lone employee is charged with testing suspected defective toys from across the nation. At the nearby headquarters, safety initiatives have been stalled or dropped after dozens of jobs were eliminated in budget cutbacks.
Other workers quit in frustration. The head of the poison prevention unit, for example, resigned when efforts to require inexpensive child-resistant caps on hair care products that had burned toddlers were delayed so industry costs could be weighed against the potential benefit to children.
“Buyer beware — that is all I have to say,” Suzanne Barone, the poison prevention expert, who left in 2005, said.
Like a number of longtime former and current officials at the agency, she said she believes that it is failing to fulfill its mission. “There is only so much that the few people there can do,” she said. “So much damage has been done.”
Agency officials defend their record. “The commission is currently doing more to protect consumers than it has at any prior time in its history,” said Nancy A. Nord, the acting chairwoman. “Even more could be done with greater resources, but the media’s portrayal of a crippled and impotent agency, unable to deal with basic problems, is reckless and just plain wrong.”
Congress intended the agency to protect the public by working with the industry and others to establish voluntary standards. Ms. Nord and industry executives say that system is largely effective, in no small measure because it is in companies’ self-interest to avoid turning out products that cause harm. When hazards arise, Ms. Nord says, she is confident that the agency acts to deal with them appropriately.
For the first time in years, the commission has drawn sustained attention because of the headlines generated in recent months by the seemingly endless recalls of Chinese-made products: Thomas & Friends toy trains, Mattel Sesame Street toys, propane grills, high chairs, computer batteries, lawn trimmers, children’s jewelry and tool kits.
But the agency has hardly been a priority of the Bush administration. The commission’s shrinking budget is just $62 million this year, even though the agency regulates an industry that sells $1.4 trillion annually. The Food and Drug Administration, with a $2 billion budget, spends nearly twice as much monitoring the safety of animal feed and drugs than the Consumer Product Safety Commission spends to ensure the safety of products as diverse as toys, tools and televisions used every day by millions of Americans.
Ms. Nord acknowledges that the agency has to limit its focus; it investigates only 10 percent to 15 percent of the reported injuries or deaths linked to consumer goods; the number of such reports has grown in recent years. But she ticks off achievements: a record number of recalls — 471 products — last year. Increased fines for safety violations. A rise in reports from companies disclosing product safety problems. A new standard to prevent mattress fires, a leading killer, and more mandates under review than ever before.
Consumer advocates say the increased recalls and hazard reports make a different case: that too many flawed products are in the marketplace because the agency is not doing its job.
“Once there is a recall, it is too late,” said Rachel Weintraub, the director of product safety at the Consumer Federation of America. “Consumers are already exposed to the potential harm.”
New Chairman and New Era
Even one of the two current commissioners agrees that the agency is falling short, and warns that it is in peril.
Speaking to lawmakers earlier this year, Thomas H. Moore, that commissioner, said, “The commission can either continue to decline in staff, resources and stature to the point where it is no longer an effective force in consumer protection, or with the support of Congress, it can regain the important place in American society that it was originally designed to have.”
Mr. Moore, who was appointed by President Bill Clinton, has often found himself outvoted in recent years as he pushed for tougher standards or more aggressive enforcement. In his appearance before Congress, he argued that the need for government protection of consumers is greater than ever before.
“It is suggested in some circles that the modern, sophisticated marketplace of today can effectively regulate itself for product safety,” Mr. Moore said. But, he added, “competition and voluntary actions of today’s businessmen do not always suffice to safeguard the public interest.”
Mr. Bush began delivering on his deregulatory agenda soon after arriving in Washington. He named Harold D. Stratton, a former attorney general of New Mexico, to head the consumer protection agency. Created by Congress in 1972 in the fervor of Ralph Nader’s consumer movement, the agency was long seen as an irritant by manufacturers and business groups.
A conservative Republican and a Bush campaign volunteer, Mr. Stratton strongly objected when he was an attorney general to counterparts in other states bringing consumer protection cases, saying they were trying “to impose their own antibusiness, pro-government regulation views.” Later, he was co-founder of a nonprofit group, the Rio Grande Foundation, which says it promotes “individual freedom, limited government, and economic opportunity.”
Soon after becoming commission chairman in 2002, Mr. Stratton told the National Association of Manufacturers that he was determined to “break the barrier of fear” by assuring industry leaders — whose political action committees and executives had just donated millions of dollars to Mr. Bush’s campaign — that a consumer complaint would not automatically result in a product recall. The era of the “federal nanny,” as a Republican commissioner described the agency during the Clinton years, was over.
Many industry officials applaud the administration’s emphasis on encouraging voluntary compliance on safety issues. In a changing marketplace, they argue, mandatory standards would be cumbersome and damaging.
“It would take years to adopt them,” said Charles A. Samuels, a Washington lawyer who represents makers of home appliances.
In 2003, Mr. Stratton moved to reverse an enforcement action started two years earlier against the Daisy Manufacturing Company that sought to force it to remove 7.2 million air-powered BB guns from the market.
The guns were flawed, the agency staff had argued, because a BB could become lodged within the barrel even when the chamber appeared to be empty, a condition that agency research showed had caused at least 15 deaths and 171 serious injuries, most of them involving children.
Citing Daisy’s “precarious financial condition,” Mr. Stratton rejected the recall plan — and the court proceeding that is necessary any time the commission wants to force a company to accept a recall — saying, “I consider this administrative legal proceeding to be burdensome and inefficient.”
In an unusual step, he personally negotiated an agreement with the company to put a bigger warning label on its guns and spend $1.5 million on a safety education campaign. William B. Moran, the administrative law judge hearing the case, condemned Mr. Stratton’s alternative as toothless and said the deal would “create the risk that the public could perceive its decision as driven by its political makeup.” But the commission approved the settlement in a two-to-one vote in November 2003.
Several months later, Mr. Stratton appointed Mr. Mullan the agency’s general counsel. He came from Kirkland & Ellis, a Chicago law firm with a large office in Washington. Under Kenneth W. Starr, the independent counsel who investigated President Clinton, the firm’s Washington office became a magnet for members of the conservative Federalist Society and a hiring pool for the Bush administration.
Among the firm’s lobbying clients was the National Association of Manufacturers. Mr. Mullan had represented General Motors, which he helped defend against claims that fuel tanks on its pickup trucks were flawed and led to side-impact explosions. He also helped represent Polaris, a maker of A.T.V.’s, against consumer commission accusations that it failed to report safety defects in two of its vehicles that had resulted in hundreds of complaints and at least 25 injuries.
Roy Deppa, an engineer who retired last year, said it was a little odd at first to work with Mr. Mullan as a colleague.
“It is like having someone you fought against what you are trying to do then come to your side,” he said.
Not long after Mr. Mullan arrived, he became the agency’s director of compliance. It is one of the safety commission’s highest-profile posts, with oversight of all investigations and enforcement actions.
In that role, he argued against a ban on sales of A.T.V.’s for use by children, and a staff report concurred. Adults could still buy the machines and permit children to ride them, Mr. Mullan said, and the agency did not have enough staff to enforce the mandate. Agreeing, the commission rejected a ban.
Mr. Mullan said he is permitted to participate in agency debates over A.T.V. rules or even enforcement matters related to Polaris, his former client, as long as he was not involved in that specific matter when he represented the company.
“The ethical rules are pretty clear on this,” he said in an interview. “And I think I have been far beyond reproach on these issues.”
Reporting Defects
Once in his new post, Mr. Mullan helped narrow the requirements for reporting safety defects to the commission, a move long sought by manufacturers. Companies are obligated to notify the agency within 24 hours if they learn that their products could pose a substantial threat to the public. Seeking to better balance industry interests with safeguards for consumers, the commission, with Mr. Mullan’s support, adopted new rules.
Companies would no longer be required to report a product if the risk of injury was considered obvious or predictable, or if misuse played a role. They could also weigh whether the product was no longer in wide use or had not been sold for many years.
Consumer advocates, the nation’s fire marshals and even some former agency employees had objected to the change, citing flawed baby cribs as an example of when a manufacturer improperly blamed misuse or improper assembly for several deaths. The new rules, they said, would let companies hide evidence about such defects.
“I find these proposed revisions not only unnecessary, but potentially dangerous for consumers,” wrote Catherine E. Downs, a former senior official at the agency. “Many in management positions at C.P.S.C. have lost their contact with the consuming public who they intended to serve.”
Agency officials, including Mr. Mullan, rejected those claims, saying all they were doing was clarifying the rules, not relaxing them.
Other agency officials, including Ms. Barone, the project manager for poison prevention, and Art McDonald, the director of the hazard and injury data section, found that priorities had shifted. A database of burns caused by consumer products was closed. And agency officials stopped asking for regular briefings on emerging product hazards, Mr. McDonald said. “There was just a lack of interest,” said Mr. McDonald, who retired in 2004.
Ms. Barone and her staff, after noticing a rise in reported injuries from the active ingredient found in certain powerful hair relaxers, started an effort to require that they be packaged with child-resistant caps.
Unlike other mandates, new rules in involving poison prevention could be set by the agency without conducting a cost-benefit study, according to federal law. But Ms. Barone was told that the economic analysis was being pushed by the White House Office of Management and Budget, agency documents show.
“We are talking one to two cents per package here for something that we know is toxic,” said Ms. Barone, who now works for the F.D.A. “The other option is just to wait for more children to get hurt. It is just kind of sad.”
Enter the Chinese
The cranes that hover like a swarm of giant praying mantises over the piers at the Long Beach, Calif., port are concrete evidence of how global trade has transformed the safety commission’s task in keeping American consumers safe.
The towering cranes lift container after container of goods from China, which sends more products through the neighboring Los Angeles and Long Beach ports than to any others in the United States. In just the last decade, imports of Chinese consumer products nationwide have surged to $246 billion from $62 billion, according to agency statistics. Nearly 20 percent of the consumer products for sale in the country today are Chinese-made, compared to 5 percent in 1997.
And some of them may be dangerous. By law, the commission can mandate safety standards only after voluntary measures have failed. Chinese officials and factory owners have said, however, that they do not feel compelled to meet the voluntary standards.
“Time and again, through the translators, they made clear they did not understand this concept,” said Nick Marchica, an engineer and former agency senior aide. “What they told us was, ‘As far as we are concerned, voluntary means we don’t have to.’ ”
Mr. Marchica said some Chinese products, like electrical extension cords or children’s jewelry, frequently violate the standards. But the consumer agency is handicapped in finding those goods or blocking them from reaching American buyers. The commission has no inspectors at factories overseas. And at ports in the United States, the agency is overwhelmed.
In Los Angeles area ports, through which 15 million truck-size containers move a year, a single agency inspector, working two or three days a week, spot-checks incoming shipments. Agency officials would not permit the inspector to speak with a reporter, but colleagues said her assignment was all but hopeless. “It is completely ineffective,” one agency official said.
Beyond examining only a sliver of the imports, the inspector has few tools in the field to detect problems. The F.D.A., for example, is trying out new equipment at some ports to automatically check if lead is present in food or drugs under inspection. The consumer agency, though, has no such devices in the field. Even if problems turn up, agency inspectors also frequently do not have clear legal authority to seize noncompliant products that violate voluntary standards.
In New York harbor, a safety commission inspector rarely shows up, said two customs officers who check imports to see if they comply with trade laws. Asked recently when he last saw a commission inspector, Ted Fronckowiak, a customs supervisor, responded: “It was around December.”
Agents from Customs and Border Protection do what they can to help. But that usually means simply looking for counterfeit products, instead of goods that might not comply with safety standards. And when products are headed for major retailers, like KB Toys, the agents usually figure they are safe. “We sort of assume they are tending to business,” said Mr. Fronckowiak.
Agency officials blame the small staff for the shortage of inspectors. Back in the 1970s, the safety commission had nearly 1,000 employees, which meant workers in field offices could regularly perform spot checks of factories, warehouses and stores and investigate injuries or accidents, said Martin B. Bennett, an inspector in the New York field office from 1973 until 2002.
“We could handle a lot of products. We could cover the landscape,” he said.
During the Reagan administration, the work force was slashed nearly in half. Under Mr. Bush, it has reached a low of about 420, a 12.5 percent cut since 2002.
Today, 81 field inspectors work out of their homes, compared with a network of field offices with 133 employees in 2002. While agency records show that they have increased the number of on-site investigations into reported deaths or injuries, in 2006 it took much longer — weeks or even months — to determine whether certain products were at fault and to recommend corrective action. The records also show that compliance investigations — to determine if products on the market meet standards — dropped 45 percent from 2003 to 2006.
Mr. Moore, the commissioner appointed by Mr. Clinton, told Congress in March that it would take years to recover from the loss of employees with expertise in toys, fire-related hazards, drowning prevention and chemical risks, among others.
A senior agency official was more blunt. “It is a complete disaster,” said the official, one of nearly a dozen who spoke anonymously because the agency had instructed employees not to talk to reporters. “There is just no other word for it.”
At the agency’s product testing lab, which operates out of a former missile defense radar station in Gaithersburg, Md., the impact of the tight budgets is apparent.
One lab worker used a magnifying glass and a mechanical stop watch to help conduct a fabric flammability experiment — the same equipment she has used for three decades. The toy laboratory, down the hall, is an office so cramped that the only space dedicated to a drop test to see if toys will break into small pieces and cause a choking hazard is the spare space behind the office door. “This is the toy lab for all of America — for all of the United States government!” said Robert L. Hundemer, the one agency employee who routinely tests toys, as he held up his arms in the air. “We do what we can.”
New Initiatives
Spurred by the recalls of flawed Chinese-made products, Democrats in Congress, consumer advocates and even industry groups are demanding that the commission be given more power and money to do its job.
Congress has begun by adopting budgets that allow for modest funding increases for the agency next year. The Bush administration proposed more cuts, which would have forced the agency’s staff to shrink still more.
Mr. Stratton stepped down last year to take a job as a product safety lawyer in Washington law firm and the president has yet to replace him. In March, Mr. Bush nominated Michael E. Baroody, but he withdrew after lawmakers attacked his record as a longtime lobbyist for the National Association of Manufacturers. The vacancy has prevented any action on proposed regulations or mandatory recalls. The agency, for example, found a Chinese-made A.T.V. unsafe but could not take it off the market.
Eager for action, several environmental and business groups are pushing for new mandatory standards. The Sierra Club, backed by toymakers, is seeking a ban on lead in children’s jewelry, which the agency has agreed to consider.
And cigarette lighter manufacturers, finding themselves at a competitive disadvantage to Chinese companies that ignore the voluntary standard, are seeking safety rules for lighters. The consumer commission, though, has declined so far to move ahead, saying the 90 injuries and 10 deaths linked to fires caused by defective lighters were not enough to justify the mandate.
Ms. Nord, the acting chairwoman who was appointed in 2005 after working as a lobbyist for Eastman Kodak, has come up with her own reform plan. She wants to gradually increase the cap on civil penalties for violating agency rules to $10 million from $1.8 million. She also wants to give inspectors power to seize or block entry to some unsafe imports at ports.
The agency is also negotiating with toy makers and officials in China to try to ensure that many more products meet United States standards. They would be inspected overseas by independent testing companies, and the costs would be borne by manufacturers or importers.
Patrick MacRoy, the director of the Chicago Health Department’s lead poisoning prevention program, said any move to strengthen the consumer product agency would be welcome. To date, he said, it has lagged state and local health authorities in the effort to remove lead-tainted children’s products from the marketplace.
“It requires a coordinated national response to make sure dangerous products stay off the shelves,” he said. “To date, we haven’t seen that.”
Labels: Bush Administration, Consumer Product Safety Commission
# posted by David @ Sunday, September 02, 2007
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Leaked Red Cross report sets up Bush team for international war-crimes trial
by Nat Hentoff
August 28th, 2007 6:30 PM
If and when there's the equivalent of an international Nuremberg trial for the American perpetrators of crimes against humanity in Guantánamo, Iraq, Afghanistan, and the CIA's secret prisons, there will be mounds of evidence available from documented international reports by human-rights organizations, including an arm of the European parliament—as well as such deeply footnoted books as Stephen Grey's
Ghost Plane: The True Story of the CIA Torture Program (St. Martin's Press) and Charlie Savage's just-published
Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy (Little, Brown).
While the Democratic Congress has yet to begin a serious investigation into what many European legislators already know about American war crimes, a particularly telling report by the International Committee of the Red Cross has been leaked that would surely figure prominently in such a potential Nuremberg trial. The Red Cross itself is bound to public silence concerning the results of its human-rights probes of prisons around the world—or else governments wouldn't let them in.
But The New Yorker's Jane Mayer has sources who have seen accounts of the Red Cross interviews with inmates formerly held in CIA secret prisons. In "The Black Sites" (August 13, The New Yorker), Mayer also reveals the effect on our torturers of what they do—on the orders of the president—to "protect American values."
She quotes a former CIA officer: "When you cross over that line of darkness, it's hard to come back. You lose your soul. You can do your best to justify it, but . . . you can't go back to that dark a place without it changing you."
Few average Americans have been changed, however, by what the CIA does in our name. Blame that on the tight official secrecy that continues over how the CIA extracts information. On July 20, the Bush administration issued a new executive order authorizing the CIA to continue using these techniques—without disclosing anything about them.
If we, the people, are ultimately condemned by a world court for our complicity and silence in these war crimes, we can always try to echo those Germans who claimed not to know what Hitler and his enforcers were doing. But in Nazi Germany, people had no way of insisting on finding out what happened to their disappeared neighbors.
We, however, have the right and the power to insist that Congress discover and reveal the details of the torture and other brutalities that the CIA has been inflicting in our name on terrorism suspects.
Only one congressman, Oregon's Democratic senator Ron Wyden, has insisted on probing the legality of the CIA's techniques—so much so that Wyden has blocked the appointment of Bush's nominee, John Rizzo, from becoming the CIA's top lawyer. Rizzo, a CIA official since 2002, has said publicly that he didn't object to the Justice Department's 2002 "torture" memos, which allowed the infliction of pain unless it caused such injuries as "organ failure . . . or even death." (Any infliction of pain up to that point was deemed not un-American.) Mr. Rizzo would make a key witness in any future Nuremberg trial.
As Jane Mayer told National Public Radio on August 6, what she found in the leaked Red Cross report, and through her own extensive research on our interrogators (who are cheered on by the commander in chief), is "a top-down-controlled, mechanistic, regimented program of abuse that was signed off on—at the White House, really—and then implemented at the CIA from the top levels all the way down. . . . They would put people naked for up to 40 days in cells where they were deprived of any kind of light. They would cut them off from any sense of what time it was or . . . anything that would give them a sense of where they were."
She also told of the CIA interrogation of Abu Zubaydah, who was not only waterboarded (a technique in which he was made to feel that he was about to be drowned) but also "kept in . . . a small cage, about one meter [39.7 inches] by one meter, in which he couldn't stand up for a long period of time. [The CIA] called it the dog box."
Whether or not there is another Nuremberg trial—and Congress continues to stay asleep—future historians of the Bush administration will surely also refer to Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality, the July report by Human Rights First and Physicians for Social Responsibility.
The report emphasizes that the president's July executive order on CIA interrogations—which, though it is classified, was widely hailed as banning "torture and cruel and inhuman treatment"—"fails explicitly to rule out the use of the 'enhanced' techniques that the CIA authorized in March, 2002, "with the president's approval (emphasis added).
In 2002, then–Secretary of State Colin Powell denounced the "torture" memos and other interrogation techniques in internal reports that reached the White House. It's a pity he didn't also tell us. But Powell's objections should keep him out of the defendants' dock in any future international trial.
From the Leave No Marks report, here are some of the American statutes that the CIA, the Defense Department, and the Justice Department have utterly violated:
In the 1994 Torture Convention Implementation Act, we put into U.S. law what we had signed in Article 5 of the UN Convention Against Torture, which is defined as "an act 'committed by an [officially authorized] person' . . . specifically intended to inflict severe physical or mental pain or suffering . . . upon another person within his custody or physical control."
The 1997 U.S. War Crimes Act "criminalizes . . . specifically enumerated war crimes that the legislation refers to as 'grave breaches' of Common Article 3 [of the Geneva Conventions], including the war crimes of torture and 'cruel or inhuman treatment.'"
The Leave No Marks report very valuably brings the Supreme Court— before Chief Justice John Roberts took over—into the war-crimes record of this administration. I strongly suggest that Human Rights First and Physicians for Social Responsibility send their report—with the following section underlined—to every current member of the Supreme Court and Congress:
"The Supreme Court has long considered prisoner treatment to violate substantive due process if the treatment 'shocks the conscience,' is bound to offend even hardened sensibilities, or offends 'a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'"
Among those fundamental rights cited by past Supreme Courts, the report continues, are "the rights to bodily integrity [and] the right to have [one's] basic needs met; and the right to basic human dignity" (emphasis added).
If the conscience of a majority on the Roberts Court isn't shocked by what we've done to our prisoners, then it will be up to the next president and the next Congress—and, therefore, up to us—to alter, in some respects, how history will judge us. But do you see any considerable signs, among average Americans, of the conscience being shocked? How about the presidential candidates of both parties?
Labels: Bush Administration, War Criminals
# posted by David @ Thursday, August 30, 2007
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