Cheating Justice (13 page)

In the conspiracy to conduct illegal wiretapping, the statute of limitations may well run until January 20, 2014, or five years after President Bush left office. That's because illegal wiretapping launched by the Bush warrantless surveillance program continued until the president left office, according to a
New York Times
article by James Risen and Eric Lichtblau on June 16, 2009.
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Intercepts of phone calls and e-mails in late 2008 and early 2009—while President Bush was still in office—were not legal under the FISA Amendments Act of 2008, the
Times
reported. Representative Rush Holt, chair of the House Select Intelligence Oversight Panel, said that the violations were “flagrant” and couldn't be dismissed as accidental, according to Risen and Lichtblau. Two other intelligence officials confirmed the existence of a National Security Agency program that “routinely examined large volumes of Americans' email messages without court warrants” and that these programs still operated as of early 2009.
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The January 20, 2014, date for the expiration of the statute of limitations may apply to the president and his team for other reasons as well. The report by the inspectors general on the president's warrantless surveillance program describes, in brief, a two-year period for the “transition of authority” from unilateral presidential wiretapping authorizations to the use of the FISA court. The inspectors general were critical that the “transitioning” had not begun sooner.
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Since the last presidential authorization for warrantless surveillance expired on February 1, 2007, portions of the illegal program may have lasted for another two years until the transition was over on February 1, 2009. Again, the five-year statute of limitations would run from the end of President Bush's term on January 20, 2009, to 2014.

There is another reason to believe that the statute of limitations did not begin to run until President Bush's term ended, or nearly so. The data-mining
program, still shrouded in layers of secrecy, may have illegally continued to collect vast pools of communications records from Americans during the final two years of President Bush's term. This program may have lasted until at least September 17, 2008, according to documents filed in federal court in the Northern District of California by the Electronic Frontier Foundation as part of a civil lawsuit against President Bush and AT&T.
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If September 17, 2008, were the very last day of the data mining violations, the statute of limitations would run until September 17, 2013.

If those dates, for some reason, do not resolve the statute of limitations question, there are other events that might mark the last overt act in the conspiracy to violate FISA. As noted, the presidential authorization of illegal surveillance is said to have expired on February 1, 2007. But, even so, some of the wiretaps permitted under that order may have kept going for a year after they were issued, which would move the statute of limitations to five years from February 1, 2008.

If all illegal operations were stopped on February 1, 2007, and there were no ongoing authorizations, no surveillance operating on previously approved authorizations, no continuation of the secret data-mining program, no further use or retention of information collected illegally under the warrantless operations, and no additional presidentially authorized warrantless surveillance, then the statute of limitations could expire, at the earliest, on February 1, 2012. Given the many reports of information collection that started under of President Bush's warrantless wiretapping activities and then carried on after the authorizations stopped, this date seems highly unlikely to hold much water.

The clock is running on this important prosecution, but the statute of limitations is not a bar to seeking criminal accountability for the president's multiple violations of the FISA law.

A special prosecutor should be named immediately to investigate the details of these activities and other crimes related to illicit surveillance. President Bush, Vice President Cheney, and others involved in the illegal surveillance of Americans should be prosecuted for their admitted violations of the law if the evidence warrants it. In addition, as I describe in chapter 4, new oversight of and protections from government surveillance should be passed by Congress to protect the privacy of Americans.

A criminal justice system that operates without accountability by the powerful is destructive of our liberties and of democracy itself. Unless
strong steps are taken in response to blatant violations of law, there will be no guard against future presidents who also want to intrude unilaterally upon the lives and communications of Americans.

In the end, Americans must decide whether this is a country with a dual system of justice: one for the powerful and the other for those without power. Holding the Bush administration accountable for its FISA illegalities makes a firm statement that when the president and his team break the law, the president and his team will pay the price.

At the Guantánamo Bay prison compound operated by the United States, Mohammed al Qahtani, a Saudi, was detained in 2002 in extreme isolation under blinding continuous light for months, while being interrogated twenty hours a day for forty-eight of fifty-four consecutive days. He was led around on all fours with a leash, threatened by an aggressive dog, exposed to life-threatening cold temperatures, and subjected to beatings, prolonged loud music, forced nudity, forced enemas, forced injections, and more, as shown in U.S. government logs published by
Time
magazine on June 12, 2005.
1

In Syria, Maher Arar of Canada was held for a year in an underground windowless cell akin to a grave and repeatedly beaten with thick electrical cords—this after being detained on a stopover by U.S. officers at JFK Airport in New York in the fall of 2002 and then delivered to Syria for interrogation. He was released as an innocent man, mistakenly identified as a terrorist, wrote Jane Mayer in the
New Yorker
on February 14, 2005.
2

At Bagram Air Base in Afghanistan in the second half of 2002 and early 2003, Bashir Ahmad, a Pakistani man detained by U.S. forces who admitted to fighting for the Taliban, was left tied to a chain hanging from the ceiling, sometimes by his hands, and sometimes by his feet, after which American soldiers beat him with a wooden rod, according to an investigative series appearing in McClatchy newspapers in June 16, 2008.
3

In Poland in 2002, Abd al-Rahim al-Nashiri of Saudi Arabia was kept
naked, shackled, and hooded in a secret prison operated by the CIA. A bitless power drill was revved near his head, a gun cocked by his ears, his skin scoured with a stiff brush, and his family threatened with harm, although it was in another facility in Thailand that he was subjected to near drowning by waterboarding. His case was described in a report by the CIA inspector general and in subsequent news reports, including on the CBS News site on September 21, 2010.
4

And then there was Abu Ghraib.

Across the globe, the Bush administration operated an international network of torture sites, a far-flung archipelago of cells and compounds hidden from the view of the American people. In them, the administration adopted the desperate methods of despots—the use of torture, the infliction of cruel, inhuman, and degrading treatment, in flagrant abuse of long-held human rights principles.

Committing or authorizing torture is a crime. It is against the law in the United States. It is against the international treaties adopted and ratified by the United States. Torture is prohibited up and down the chain of command—it cannot be authorized, condoned, or implemented; when reported, it must be investigated and prosecuted. Cruel, inhuman, and degrading treatment—reprehensible actions that are not as severe as torture—is also prohibited by international law.

In his book released in November 2010, President Bush recounted that, when asked by the CIA about using a form of torture—waterboarding—on one particular detainee, he replied, “Damn right.”
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Key presidential advisor Karl Rove told the BBC on March 12, 2010, that he was “proud” of the use of waterboarding.
6
And on February 14, 2010, former vice president Cheney told ABC's
This Week
, “I was a big supporter of waterboarding. I was a big supporter of the enhanced interrogation techniques.”
7

The use of torture was not the action of just a few freewheeling soldiers or CIA agents. It was a policy adopted and approved by the Bush administration at the highest levels.

Not all the details of the torture or all of the stories are known, but what is now known is that President Bush signed a memo that wiped away the restrictions against torture and cruel treatment of detainees. We know that the Bush administration drafted and approved harsh interrogation techniques based on those used against American prisoners of war in the most brutal detention situations. We know, without a doubt, that the
techniques approved by President Bush were considered torture by governments worldwide, human rights organizations, UN monitoring organizations, and even the United States, which had in years prior prosecuted others for torture based on the same acts; at a minimum, the techniques were cruel, inhuman, or degrading.

But what is less known is how the members of Bush administration attempted to immunize themselves from prosecution. In an unprecedented fashion, the president, vice president, and others in the administration used their powers to protect those who violated the law—that is, themselves.

Powerful laws against the use of torture and cruel treatment were in place when President Bush took office; by the time he was flown away from the capital at the end of his second term, the laws were hobbled and, in some cases, rendered completely useless.

 

I was not prepared for the pictures and stories from the Abu Ghraib prison in Afghanistan. I don't think many Americans were. Torture and cruel treatment of prisoners are associated with the Soviets, the Chinese Communists, the North Koreans, the North Vietnamese, the Nazis. A tool of the most repressive regimes, torture has been condemned throughout history.

One of my earliest memories is hearing my mother talk about Josef Mengele, the notorious Nazi doctor at Auschwitz who performed torture experiments on twins. I was a twin, and my mother, who was born near the city of Kiev in what is now Ukraine, and came to America as a teenager, must have had nightmares about what would have happened had she stayed in Europe. When she mentioned Mengele, she told my twin brother and me how lucky we were, as Jews, to have been born in America.
8

The Mengele stories were a far-off specter—rather like a scary book that you put down, thinking it would never appear again in your life. But my awareness of torture, sadly, didn't end there. As a member of Congress, I learned about Nazi war criminals in America. One case involved Klaus Barbie, the “Butcher of Lyon,” a Gestapo officer infamous for torturing French resistance fighters and sending Jewish children to Auschwitz. I worked to create a Nazi-hunting unit in the U.S. Justice Department, and in 1983 it released the details of how the United States had secretly employed Barbie after the war and then helped him resettle safely in Argentina.
This link between the United States and a torturer was ugly, to say the least.
9

Like most Americans—and people worldwide—I recoiled at those photographs that emerged from Abu Ghraib prison in Iraq in 2004: naked men forced to assume sexual positions; dogs snarling in the faces of frightened, chained detainees; a person, hooded, forced to stand in a humiliating way, on a small box with wires attached to his body.
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Information continued to unfurl about the memos and authorizations of torture from the highest offices in our land. I was not prepared for the lying, the scope of abuses, the lack of accountability.

Despite U.S. laws and international treaties that prohibit torture and that stand firmly against cruel, inhuman, and degrading treatment, the United States became involved in perpetuating and inflicting both. It didn't start with a handful of soldiers at the prison—a few “bad apples,” as a White House spokesperson said in a containment strategy. The direction, instead, came from the White House, the Pentagon, the National Security Council, the Justice Department. Top people inside our government—a small group—unilaterally took it upon themselves to take our nation down a path of torture.

Facts continued to accrue. Highly respected journalists wrote articles and then books, reports were issued, documentation made its way to the public from some of the most credible sources in the world, such as the International Committee of the Red Cross (ICRC), which monitors the Geneva Conventions. We now know that hundreds of people held in U.S. custody during the time of the George W. Bush administration were exposed to sleep deprivation, painful stress positions, loud noise, extremes of temperature, food deprivation. A list of “approved techniques” read like a memo by Kafka. Reports indicate that prisoners were hung from the ceiling by their arms, slapped, left naked or in diapers only, shackled on concrete floors, bashed into walls. One approved “enhanced interrogation technique” forced a man to crouch in a locked box while a “nonlethal” insect was dropped in. These techniques were often used in combination, and again and again. At least three men in U.S. detention were waterboarded—one 83 times in a month, another 183 times. “Waterboarding” is a form of torture that can be traced back to the Spanish Inquisition.

More than one hundred detainees died in U.S. custody before 2005, at least one-third of them in circumstances suggesting homicide, according to
autopsy reports analyzed by the ACLU.
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Men were “rendered”—lingo for turned over for questioning—by the U.S. to other countries, where it was virtually certain that they would be tortured. In other cases, the CIA flew detainees around the world to hidden prisons that it ran in Poland, Lithuania, Romania, and Thailand (the entire list of places is still concealed), where they could be treated brutally in secret. For the first time in our country's history, a U.S. president embraced cruel, inhuman, and torturous policies of interrogation and detention.