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Tortured Logic: In The Government’s Own Words

The torture memos produced by the OLC were never meant to be seen and parsed by the public.

These memos used incredibly tortured logic to justify acts which, in prior wars, the United States prosecuted as war crimes.

The ACLU has put together a video of these words of tortured logic being read aloud.  Watch it.

The words you are hearing were written by and for the US government. As guidance for governmental agencies acting in all of our names.

The ACLU is asking that you send these words to Attorney General Eric Holder.  Ask for accountability on torture. You can do so here.

These OLC memos, along with a wholesale disregard for the rule of law, have led the US to what Judge Colleen Kollar-Kotelly recently said in a memorandum opinion in the Al Mutairi case (full opinion here in PDF format):

Taking this evidence as a whole, the Government has at best shown that some of Al Mutairi’s conduct is consistent with persons who may have become a part of al Wafa or al Qaida, but there is nothing in the record beyond speculation that Al Mutairi did, in fact, train or otherwise become a part of one or more of those organizations, where he would have done so, and with which organization. While Al Mutairi’s described peregrinations within Afghanistan lack credibility, the Government has not filled in these blanks nor supplanted Al Mutairi’s version of his travels and activities with sufficiently credible and reliable evidence to meet its burden by a preponderance of the evidence. Accordingly, the Court shall grant Al Mutairi’s petition for habeas corpus.

The flimsy, insufficient evidence question has come up time and time again in detainee habeas cases, where the government has only tangential-at-best information about someone we have held for years. 

Honestly, Al Mutairi doesn’t exactly sound like a completely innocent "babe in the woods."  Especially when you see how many problems Judge Kollar-Kotelly has with his version of events.  He has that feel that I used to get from every skeezy defendant who wouldn’t have known the truth if it hit him in the ass.  But just because someone was skeezy doesn’t make them guilty of every crime. 

You are supposed to prosecute in the name of justice, not just because you can.

As the judge says pointedly, it is not up to Al Mutairi to prove his innocence.  It is up to the government — as it is in all such cases — to demonstrate by a preponderance of the evidence the defendant’s actions point to, in this case, an association with al Wafa or al Qaeda.

There must be a connection sustained by evidence to justify prosecution.

What is baffling?  Al Mutairi was apprehended by the Pakistanis and turned over to US custody on or around November 21, 2001.  He filed his habeas petition on May 1, 2002, making his the oldest habeas petition for any US detainee.

During these many years of detention, and all the subsequent hearings, proceedings, filings, defense evidentiary challenges, and up to and including demands directly from Judge Kollar-Kotelly — no newbie to intel proceedings, having just finished a term as the head of the FISA Court — for particulars on evidentiary issues of questionable detail and firmness?  That evidence still isn’t there.

That evidence, after all these many years, has neither been firmed up nor been corroborated by additional intelligence gathering or other investigative means. We have bupkis.

Who are we and what have we done with competence and a commitment to justice?  

ACLUblog quotes a human rights lawyer who gets this exactly right:

[P]rinciples don’t really matter much in times of peace. It’s easy to maintain your ideology when everything is stable and life is good; it’s during times of conflict that holding fast to your values really matters. It is conflict that truly tests your beliefs.

We have failed — and continue to fail — that test.  And we will continue to do so unless and until we hold those at the top levels of government responsible for the actions taken at their direction.


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50 Responses to "Tortured Logic: In The Government’s Own Words"
Christy Hardin Smith | Monday August 10, 2009 05:52 am 1

Morning gang. Lots of flower watering here this morning. The hot, humid ick continues in my neighborhood. How are things with everyone else?


JimWhite | Monday August 10, 2009 06:09 am 2

Good morning, Christie. That is a very powerful video and it’s a good thing that ACLU is doing the petition drive. The sad state of evidence against these prisoners shows how depraved the entire effort at Guantanamo is.


Jesterfox | Monday August 10, 2009 06:12 am 3

Hot and humid here to. We had a health care forum here in Marshalltown, Iowa hosted by the OFA group yesterday. The thunderstorm outside cooled things off a bit.


Christy Hardin Smith | Monday August 10, 2009 06:13 am 4
In response to JimWhite @ 2

If you read Spencer’s article from last night — it’s linked above as the last link — you’ll see the need for pushing full accountability and not just scapegoating the folks at the bottom end of the decisionmaking.


Christy Hardin Smith | Monday August 10, 2009 06:14 am 5
In response to Jesterfox @ 3

How did the town hall go? Good back and forth or a lot of screeching and not much discussion? Sadly, it seems they all divide up into one of those two categories. Personally, I’d like a lot more of the former and a lot less of the latter…


JimWhite | Monday August 10, 2009 06:16 am 6
In response to Christy Hardin Smith @ 4

Yes, that and Marcy’s post on torture yesterday were both very good. I also came to the conclusion last night that the source of the “the torturers weren’t told what was in the memos” leak to the LA Times had to be Kiriakou. That one just smells like his brand of disinformation, even if he is now working for a Congressional committee.


Christy Hardin Smith | Monday August 10, 2009 06:17 am 7

btw, for folks who were fans of The Wire like I was, there are a couple of fabulous actors from the show doing part of the reading in the above video.


Christy Hardin Smith | Monday August 10, 2009 06:20 am 8
In response to JimWhite @ 6

There has been so much CYA leaking the last few weeks on all of this that it is beginning to smell like an internal push from a core group of people who are deflecting speculation. At least that’s how its been feeling to me. The question is, who all is in that core? And, more importantly, why? And at whose direction?


CarolynU | Monday August 10, 2009 06:30 am 9

Powerful video, and post.


SouthernDragon | Monday August 10, 2009 06:30 am 10

Mornin’, Christy, pups.

Signed. Wish I could drag Holder by the collar and make him sit down and watch it. And Obama and DOJ in its entirety. Holding people accountable for their behaviour is moving forward. Assholes.


foothillsmike | Monday August 10, 2009 06:34 am 11

Is the rumored appointment by Holder of a special prosecutor just another Abu Graib type of investigation that will result in the lowest on the totum pole being offered up as sacrificial lambs?


RevBev | Monday August 10, 2009 06:35 am 12

And I hope they go after Prince/Blackwater like crazy….all that money, cruelty, lies. What has happened to us?


Christy Hardin Smith | Monday August 10, 2009 06:35 am 13
In response to CarolynU @ 9

Thanks, Carolyn. I thought the tone of Judge Kollar-Kotelly’s entire memorandum opinion matched how I was feeling completely.

If I’d tried to go to trial with this little in hand in terms of evidence, my local judges would have laid me out publicly in the courtroom. The fact that years have gone by without shoring things up and, in this particular case, the one piece of really damning evidence they thought they had on this defendent turned out to be due to a tyopgraphical error — they transposed his detainee ID number for someone else’s and the thing he’d been accused of turned out to have been perpetrated by someone else. They knew it for quite a while, but it didn’t really come out until this habeas proceeding moved forward, apparently.

Justice is about more than just winning a case. The fact that we appear to have forgotten that entirely? Unforgiveable in my book.


Christy Hardin Smith | Monday August 10, 2009 06:37 am 14
In response to SouthernDragon @ 10

I wish we could move forward without having to address the sins of the past — but we can’t because we are continuing to commit them. Without some wholesale review, accountability and redirection, I’m afraid we’ll be stuck right here in a rule of law repudiation cycle.

And that’s not acceptable for me.


Christy Hardin Smith | Monday August 10, 2009 06:38 am 15
In response to foothillsmike @ 11

Spencer had some insight on that last night. And it doesn’t look good, just FYI, without some substantial outside push for something more.


JimWhite | Monday August 10, 2009 06:40 am 16
In response to foothillsmike @ 11

A lot of people see it that way, or even with there being a decision that even the low level ones can’t be convicted, so the prosecutor thing won’t happen. Others are saying that once the low level prosecutions start, evidence against high level people will come in that is so compelling that even they will have to be prosecuted. I fear the former is more likely but hold out hope for the latter. Sadly, a real sense of justice at the Department of Justice still doesn’t exist.


Christy Hardin Smith | Monday August 10, 2009 06:43 am 17
In response to RevBev @ 12

The thing is, there have always been bad actors in government. Always. The difference between then and now is that, in the past at least, there were decent people who stood up and demanded accountability and shamed the bad actors with their behavior. In the current climate, the bad acts have become the norm — how do you shame someone for being just as skeezy as the next guy?

This is because the bad acts came from the top, directed from there. The bad example was set from the highest reaches of government and it permeated not just the particular branch(es) of government, but all of our culture.

We have become the thing we said we were fighting against and, in doing so, we have validated — not repudiated — the very acts we used to be able to say we find abhorrent. We can no longer say that, because we’ve perpetrated those selfsame abhorrent acts — repeatedly. Which leaves our military and governmental personnel incredibly vulnerable. We have no leg to stand on to protest if they are captured and tortured or imprisoned without trial.

We have become that which we fought so hard to vanquish in WWII and beyond.


Raven | Monday August 10, 2009 06:46 am 18

We watched Key Largo the other night and that was the entire theme, Bogy vs Edward G. Robinson. . . .”we fought to rid the world of Johnny Rocco’s and this is what we get”!


Ruth Calvo | Monday August 10, 2009 06:48 am 19

The level of unconstitutionality, equating association with criminality, that the Holy Land Foundation Trial reached is shown again in the DoJ memos. During its years of throwing aside law to pursue any form it interpreted as terrorism the DoJ disgraced this country.


Christy Hardin Smith | Monday August 10, 2009 06:49 am 20
In response to Raven @ 18

It’s sad, but there you are. And I have no idea how to rectify this except to expose the bad acts for what they really were — and to hold those perpetrating them to account at the highest levels, just as we did at Nuremberg and beyond.

To do otherwise would say that we hold the rest of the world to one standard, but allow ourselves an entirely different one for which there is no accountability. That’s simply unworkable over the long run, and a recipe for disaster in terms of policy and diplomacy.


RevBev | Monday August 10, 2009 06:49 am 21

Yes, always bad actors, but Nixon et al got the boot. These days the bribes and corruption + those involved seem so blatant and pervasive. LBJ was shamed out of office (see Cronkite) b/c VietNam….criminal W got 8 years run with no pushback. Not good.


ThingsComeUndone | Monday August 10, 2009 06:52 am 22

Just saw the video were they all reading from the same page word for word in order?


Christy Hardin Smith | Monday August 10, 2009 06:52 am 23
In response to RevBev @ 21

Exactly so — the last thing you want is to leave the impression that corruption pays when you perpetrate it on the large scale.


cougar | Monday August 10, 2009 06:53 am 24

When the ACLU does something else especially great, like this, I send them money.
I urge you all to use this opportunity to get into that habit.

http://www.aclu.com/


RevBev | Monday August 10, 2009 06:53 am 25

In a word….the Emperor has no clothes, and the world can see that. Remember when Bush 1st said he wanted to see dignity restored to the Oval Office post Clinton. Ya’ think he’s proud?


Christy Hardin Smith | Monday August 10, 2009 06:53 am 26
In response to ThingsComeUndone @ 22

Likely they all read the whole of it, and then they spliced together the various snippets in order afterward as they found clips they thought were most effective. That’s a pretty common technique.


foothillsmike | Monday August 10, 2009 06:55 am 27

Is there anything proceeding in the Spanish courts?


Christy Hardin Smith | Monday August 10, 2009 06:57 am 28
In response to foothillsmike @ 27

Nothing that’s going to end up doing anything. We can’t rely on someone from the outside to clean up our mess — and they aren’t likely to do so. The world is watching us to see if we do the thing we’re always harping at other nation’s to do: hold ourselves accountable.


ThingsComeUndone | Monday August 10, 2009 06:57 am 29

I thought that is what they did but with the disjointedness of the speech I just thought I would ask.


demi | Monday August 10, 2009 07:02 am 30
In response to Raven @ 18

“He wants more, doncha ya Johnny?”
They all do.


oldgold | Monday August 10, 2009 07:02 am 31

I would like to meaningfully address these sins of our past. I think it is necessary both in terms of our own nation’s soul and reestablishing our moral standing in the world. But having said that, I am at a loss as to how to proceed in a manner that would lead to a positive outcome, given our current over-heated political milieu.

I guess the insanity of the birthers and deathers has me down this morning. How do we get out of this vortex of stupidity?


ThingsComeUndone | Monday August 10, 2009 07:03 am 32

>If I’d tried to go to trial with this little in hand in terms of evidence, my local judges would have laid me out publicly in the courtroom. The fact that years have gone by without shoring things up and, in this particular case, the one piece of really damning evidence they thought they had on this defendent turned out to be due to a tyopgraphical error — they transposed his detainee ID number for someone else’s and the thing he’d been accused of turned out to have been perpetrated by someone else. They knew it for quite a while, but it didn’t really come out until this habeas proceeding moved forward, apparently.

My bold if we can ever get the media to cover this story that is the point I would stress. We really don’t have proof.


demi | Monday August 10, 2009 07:07 am 33
In response to oldgold @ 31

Knowing that you are not one of them and you didn’t make them be stupid should help you feel better. Shine that light.


Bilbo | Monday August 10, 2009 07:07 am 34

Good morning, Christy. Always found this version of the torture memo to be pretty moving.


mntleo2 | Monday August 10, 2009 07:19 am 35

Isn’t it ironic that WE can see all this and the people in power remain completely and studiously blind to it? I wrote to Joe Biden when he enthusiastically voted for Negroponte for the ambassador to Iraq.

Because, see I was supportive of the Sanctuary Movement in the 80’s when Negroponte was looking the other way while we trained thugs in The School of the Americas. These are the CIA supported CIA supported thugs who dropped nuns from airplanes, assassinated a saint (Archbishop Romero), and annihilated entire villages of babies, women and old people.

Years later, when Paul Wellstone questioned Negroponte during an ambassadorship to the United Nations, Negroponte pretended was not aware of what was going on where he freaking lived as an American Ambassador. He looked the other way and “didn’t know” so he claimed.. This mass murdering spread to Guatemala, Nicaragua, and other S American countries simply for having the audacity for poor people to band together and try to survive using Liberation Theology. God fobid if the Rich few families didn’t have their slave labor to harvest their bananas, coffee, and chocolate! Interestingly, within 2 weeks after Negroponte landed in Iraq, the death squads began anew again.

But hey, did anyone in power or the media notice and connect the dots? Oh noes! We have to pretend we don’t see such atrocities.

So now when torture happens well prosecute a couple low level soldiers and “There! All better!”

Then we wondery why the U.S. is so hated abroad …

Cat In Seattle


asiangrrlMN | Monday August 10, 2009 07:31 am 36

This is a powerful ad. Thank you for posting it. I am at a loss how anyone could watch it and not be chilled by the words spoken, but then again, I have been at a loss for much of the past 8 years as to all the rationale that was set forth for trampling upon the rule of law, and at all the people who enthusiastically supported said trampling.


Jesterfox | Monday August 10, 2009 07:36 am 37
In response to Christy Hardin Smith @ 5

Sorry for the delay. I was on a conference call.

We had some of both. The OFA people divided us into groups after the introduction and had us discuss question from the agenda for about 15 minutes. Then we joined back to discuss as a group. The small groups proceeded civily. I expect that’s because like minded people tended to group together.

During the group discussion, the tea baggers were unable to stick to the agenda. They expressed their distrust of the government and their expectation that taxes would be raised and misused. This was acompanied by red faced ranting about tort reforms and waits for joint repairs in Canada. They also complained about Medicare and VA care, but were unwilling to give up either. They were afraid that the government would deny them care (because they’re old and their lives are less valuble), but don’t recognise that insurance companies are doing this now regardless of age.


sbvpav | Monday August 10, 2009 08:07 am 38
In response to Christy Hardin Smith @ 4

i have been thinking just what would LBJ, the consummate legislator/hardball player, do to get health care reform passed? perhaps he would call in all the so-called republican congressmen and women and tell them, call off the attack dogs, help us pass reform or i will strongly encourage my attorney general to begin full investigations of torture, renditions, justice dept. politicizing and cia lies no matter where it takes us!


sbvpav | Monday August 10, 2009 08:15 am 39

president obama did not want to “look backward” at all gwb/cheney/valerie plame/cia/blackwater did to this country for fear of tearing the country apart when he wanted to get health care reform passed; well, guess what? it already is now and still no investigations.


tjbs | Monday August 10, 2009 08:47 am 40

Hadifia proves beyond any doubt about the ability to judge and cleanse ourselves.

The Torture/ Murder/ Treason must be judged by the world in a Nuremburg setting or the International Criminal Court, after all we tortured in so many countries and so many nationalities this isn’t only about Iraq and Afghanistan.

The tortured would like to receive Justice while they still breath rather than posthumously. Nine months to start an investigation is beyond acceptable, it’s also criminal.


mntleo2 | Monday August 10, 2009 09:34 am 41
In response to tjbs @ 40

Amen ~ the WORLD needs to try these war criminals if we won’t take the responisbility to do it ourselves. These thugs have been at it for 30 years, starting with the Reagan era in S American right up to now. They ALL should be held accountable whether this is “looking back” or not!

Cat In Seattle


chetnolian | Monday August 10, 2009 10:40 am 42
In response to RevBev @ 25

Sadly, I think the answer is yes.


chetnolian | Monday August 10, 2009 10:41 am 43
In response to chetnolian @ 42

Oops. For me it’s the end of a long day. Bush 1 no, Bush 2 yes.


Leen | Monday August 10, 2009 10:56 am 44

Eric Holder, Obama, Leahy, Whitehouse, Feinstein “no one is above the law”
I want to believe


DeanOR | Monday August 10, 2009 11:40 am 45

You say there’s “insufficient evidence” to hold these guys? Well, hey, that’s why we need to torture them, to get the goods on them. It’s a no-brainer. Back to the 14th century.


DeanOR | Monday August 10, 2009 11:54 am 46

Water-boarding creates the “perception” of suffocation/drowning. The person perceives it because that it what is happening.
One thing this very effective video doesn’t convey is the effect of these torture techniques when used repeatedly over a long term, especially with extreme isolation. The victim’s mind is destroyed.


NealDeesit | Monday August 10, 2009 02:42 pm 47

During these many years of detention, and all the subsequent hearings, proceedings, filings, defense evidentiary challenges, and up to and including demands directly from Judge Kollar-Kotelly — no newbie to intel proceedings, having just finished a term as the head of the FISA Court — for particulars on evidentiary issues of questionable detail and firmness?

Am I missing something, or does the foregoing collection of words lack a verb somewhere that would make it an English sentence?


NealDeesit | Monday August 10, 2009 02:47 pm 48

Sorry for the double post. Apparently the commenting software has an occasional taste for italic food.

During these many years of detention, and all the subsequent hearings, proceedings, filings, defense evidentiary challenges, and up to and including demands directly from Judge Kollar-Kotelly — no newbie to intel proceedings, having just finished a term as the head of the FISA Court — for particulars on evidentiary issues of questionable detail and firmness?

Am I missing something, or does the foregoing collection of words lack a verb somewhere that would make it an English sentence?


NealDeesit | Monday August 10, 2009 02:52 pm 49

Third time’s the charm? Maybe a block quote will survive the comment software’s ravenous maw.

During these many years of detention, and all the subsequent hearings, proceedings, filings, defense evidentiary challenges, and up to and including demands directly from Judge Kollar-Kotelly — no newbie to intel proceedings, having just finished a term as the head of the FISA Court — for particulars on evidentiary issues of questionable detail and firmness?

Am I missing something, or does the foregoing collection of words lack a verb somewhere that would make it an English sentence?


bobschacht | Monday August 10, 2009 08:35 pm 50

Christy,
Thanks for writing about this. There is something really wrong going on here, and it needs to be more widely known. Your diary helps!

Bob in HI


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