Justice department finds John Yoo and Jay Bybee guilty of poor judgment but not professional misconduct

• Ewen MacAskill in Washington
• guardian.co.uk, Saturday 20 February 2010
• Article history

Detainees in a holding area at Guantanamo Bay. Photograph: Shane T McCoy/AFP/Getty Images

 

An inquiry by the US justice department last night reprimanded two senior Bush era lawyers who approved the use of torture at Guantánamo Bay. The department found the two lawyers, John Yoo and Jay Bybee, guilty of poor judgment but not professional misconduct.

The lawyers wrote controversial memorandums dating from 2002 after the 9/11 attacks that provided legal cover for the CIA to use torture and other harsh interrogation techniques. The conclusion of the report, which marks a significant softening of the original draft, will disappoint human rights organisations. Publication of the report has been delayed for months amid fierce internal debate. If the two had been found guilty of professional misconduct, it would have had consequences for their immediate careers and opened the way for legal challenges.

The techniques approved by the lawyers included waterboarding, which Barack Obama has described as torture but the former vice-president, Dick Cheney, insisted was not. Detainees accused of the 9/11 attacks such as Khalid Sheikh Mohammed were repeatedly subjected to waterboarding. Harsh techniques were used against others picked up in Afghanistan and Pakistan and taken to Guantánamo.

The assistant attorney-general, Ronald Weich, found the two lawyers "exercised poor judgment in connection with the drafting of the pertinent memoranda". No disciplinary action is to be taken.

Weich said poor judgment "differs from professional misconduct in that an attorney may act inappropriately and thus exhibit poor judgment even though he or she may not have violated or acted in reckless disregard of a clear obligation or standard". Yoo is a law professor at the University of California at Berkeley and Bybee is a federal appeals court judge.

The Obama administration is reluctant to reopen the row over waterboarding and Obama last year ruled against prosecution of CIA agents involved in torture techniques. He said it was a "time for reflection, not retribution".Other techniques that were approved included walling (in which the suspect could be pushed into a wall), wall standing, and sleep deprivation.

By Helen Kennedy

Monday, February 8th 2010

A crazed G.I. was arrested for waterboarding his 4-year-old daughter because she wouldn't say her ABCs.

Cops said Army Sgt. Joshua Tabor, 27, who served 15 months in Iraq, admitted to punishing his daughter by holding her down on the kitchen counter in suburban Washington State and repeatedly pushing her head backward into a full sink.

"He explained she's deathly afraid of water," said Todd Stancil, police chief in Yelm, Wash.

"He would lay her down on her back and push her head into the water right up to her eyeline. He was open about it. He did it all the time. To him, that was an acceptable form of punishment - because she wasn't able to say the alphabet."

Stancil said neighbors told cops that he also ran water over the flailing girl's face, taking her to the edge of drowning, but Tabor denied that.

"It was hot! The water was hot!" the girl said, according to the police report.

Tabor, who was arrested Jan. 31, will be arraigned Feb. 16.

"We originally booked him on third-degree assault, but if he did put the water over her face, that would constitute a more tortuous type of crime," Stancil said. "We are looking into those allegations."

Waterboarding, in which water is poured into an immobilized target's nose and mouth, was used by the CIA on prisoners in Iraq until President Obama banned it in January 2009.

Tabor is out on $10,000 bail and restricted to his base, Ft. Lewis, in Tacoma, Wash.

He was arrested after his girlfriend called the cops at 2 a.m. to say he was drunkenly stalking around the neighborhood brandishing his Kevlar helmet and threatening to break windows.

The girlfriend then told cops Tabor beat his daughter. Cops found the little girl hiding in the bathroom.

"She had just multiple bruises all over her body, from the ears to the legs," Stancil said. "She said, 'Daddy did this.'"

The child had only been in her father's court-ordered custody for two months.

Her father had barred her from contacting her mother's parents, who had raised her. When police put the worried grandma on the phone, the little girl cried from happiness, the police report says.

One year after his election, Barack Obama's approval rating is lower at this stage than for any US president since Eisenhower. So why has the optimism surrounding his victory disappeared so suddenly?

Gary Younge in Prestonsburg

The Guardian, Saturday 16 January 2010

Article history

Barack Obama's 'rightwing dissenters may be eccentric and racially exclusive but they have also proved highly effective.' Photograph: Jewel Samad/AFP/Getty Images

Every Wednesday at 4.30pm they come: a small steady human trickle rolling down a ravine in Prestonsburg, western Kentucky ­towards the Town Branch church. They come in pick-ups, on foot, alone and with families. Some stop for just a few minutes. Others linger. They come for food and warm second-hand clothes. They come because desperation in this part of America has become a routine part of life.

More than a quarter of the families in Prestonsburg live in poverty; half of the children in Floyd County, where it is situated, are on food stamps. This ­Appalachian coal mining area has never been rich. But no one can remember when it has ever been this poor either. It sits on the old Route 23 – the country music highway of which Dwight Yoakam (a Floyd Country native) sang in Readin', Rightin', Route 23. It was the road that took people north to factory jobs in places such as Detroit and Cleveland and "the good life they had never seen". Now those cities are broke and there's nowhere left to go.

"We're getting more and more ­people coming here as time goes by," says Tom Price, who helps administer the church's Feed My Sheep pantry. "The bottom's just fallen out of it all." He blames it on Barack Obama. "Is there a direct correlation [between Obama's victory and the region's bad times]? I don't know. But I do know a lot of people are hurting."

Part 1, Meet the 9-12ers - an excerpt from Opposing Obama
Link to this audio

A week may be a long time in politics. But a year has not been enough for the Democratic president to meet the expectations of his candidacy, deal with the situation he inherited or defuse the barbed charges of his detractors. For many the change that Obama promised when he was inaugurated a year on Wednesday has ended up being a change for the worse. Unemployment is rising, houses prices are falling, unpopular wars are still raging. After 100 days only Ronald Reagan had higher approval ratings for his first few months in office than Obama. But as his first year draws to a close nobody has had lower ratings at this stage since Dwight Eisenhower.

Part 2, Miner issue - an excerpt from Opposing Obama
Link to this audio

Keith Bartley, Floyd County's Democratic chairman, says one key reason why Obama's such a tough sell here is because of the effect of his cap and trade policy on the coal industry. Lt Governor Daniel Mongiardo, the Democratic frontrunner in Kentucky's senatorial race later this year, says he would not want Obama to come and stump for him on the campaign trail, particularly because of his environmental policies. "With some of the positions he has taken, especially on coal, no. He certainly can't come into eastern or western Kentucky and help. Nor would I want him to."

But the disenchantment goes beyond one region or one industry. The official narrative of Obama's inauguration – the fairytale most of the US media told itself and that the international community wanted to believe – was that after a ­rancourous campaign a divided country came together to celebrate the historic election of its first African-American president. The reality was always quite different. The editor of the Grayson County News Gazette in Leitchfield, a small town 230 miles west of Prestonsburg, recalls that the day after the election much of the area wore sombre faces. The week he was elected gun sales across the country leapt about 50% compared with the same period the year before.

For all of his aspirations for bipartisanship, after the first three months Obama had the most polarised early job approval ratings of any president in the past four decades. The gap between how Democrats and Republicans rated him at this stage was greater than George Bush Jr's in 2001 and twice as high as Richard Nixon's during the height of the Vietnam war in 1969. This was partly because Democrats loved him so much – but it was also because so few Republicans were willing to give him a hearing. Obama didn't create that partisan divide, he inherited it. Not only has he not been able to cure it, but his presence seems to have exacerbated it.

Truth be told they never really liked Obama much in Floyd County. He won only 5% of the vote against Hillary Clinton's 94% in the primaries. But until recently they did love Democrats. In the 2004 election John Kerry won the county with a 25-point margin. In 2008, John McCain took it by 2 points – the first time a Republican had won Floyd in living memory. That's to say following hurricane Katrina, the failure in Iraq, the collapse of the economy and the unravelling in Afghanistan, a sizeable portion of Floyd's voters took a look at Obama and decided that this time, for the first time, they would turn their back on the Democrats.

Back at the Feed My Sheep food ­pantry Cindy Hernandez has just picked up her groceries and is rifling through the secondhand clothes. She has no doubts about why Obama struggled in a county that is 98% white.

"That's because Obama was black. Let's get real," she says with a laugh.

"You mean people are prejudiced in eastern Kentucky?" asks Tom Nelson, the church's pastor who seems genuinely upset by what she said.

"You do not believe that?" replies Hernandez.

"I know some are, but not altogether," says Nelson. Fearing I should get the wrong impression Nelson suggested I talk to Price.

"I voted for McCain," says Price. "Because, well I voted for the old white guy. At least he's American." A few days earlier, the chairman of the Republican party in Jackson County, Arkansas, insisted electing Obama is destroying America in the same way electing Nelson Mandela destroyed South Africa. "Handing it over to the wrong people."

To ask where racism ends and politics begins in all of this is to set up a false dichotomy – America's politics has always been steeped in race and racism is a political force. The psychic scars of centuries are not removed in one election or as a result of one person. Indeed they may be deepened and made even more raw as a result of them.

The movement that has emerged to oppose him is almost exclusively white. In Little Rock, Arkansas, a city that is 40% black in a state that is 80% white, an anti-tax Tea party rally of several hundred had not one black attendee – apart from an anti-abortion speaker. The doubts they have cast about his Christianity and his birthplace (some claim Obama wasn't born in America) are really proxies for race – a bid to cast him as the ultimate "other". At an anti-healthcare reform rally in Washington in September several racist placards were spotted. One bore a picture a lion and the words, "The zoo has an African lion and the White House has a lyin' African"; another said "'Cap' Congress and 'trade' Obama back to Kenya".

But while racism might inform the intensity and shape the nature of the attacks on Obama they do not drive them. Obama's administration has raised taxes on the rich, expanded public spending, pledged to withdraw troops from Iraq and argued – if only halfheartedly – for universal healthcare. Conservatives have good reasons to be against him that have nothing to do with race.

"It's hard to specify a single source for the opposition," says Rev Wendell Griffin, a Baptist pastor and judge in Arkansas. "Part of the opposition to Obama is philosophical. There is in every society a strand of thought that glories in the myth of rugged individualism [and] he challenges that notion. He believes that the idea of a government is to have a concern not just for the individual but for the society as a whole. Some people don't like that." Griffin went on to list racism, economic desperation and the fact that he is no longer an underdog as other reasons.

His rightwing dissenters may be eccentric and racially exclusive but they have also proved highly effective. They have a populist message that excoriates Bush and the bank bailouts as well as Obama and a TV channel – Fox News – to which they are devoted and which is happy to promote their work. A recent poll showed that if the Tea party – a ­protest movement set up earlier this year to rally opposition to the stimulus bill and "big government" – were a party it would beat the Republican party.

Every week a "9/12" group meet at the non-alcoholic All Bar None in Lexington, Kentucky. This was an initiative started by Fox presenter Glenn Beck, in order to return America to the values of patriotism and godliness that he says America embraced the day after 11 September. Fourteen showed up the night I was there. A straw poll revealed that none of them blamed Obama exclusively for America heading in the wrong direction, with all preferring to blame the entire political establishment. Half believed Obama is a Muslim, just one thought he's a Christian and the overwhelming majority thought he was a communist, socialist and Marxist. None believe that he was born in America; most said they did not know.

"A lot of information about Obama's background is missing," says Abigail Billings. "The media in America is not doing any research. They're not asking any questions. They're not reporting any longer. They're now opinionated talk shows. They're no longer offering factual news coverage." They all watch Fox News.

Many on America's left are also ­disgruntled with Obama. They believe the healthcare reform, without a public option, will be inadequate, that the war in Afghanistan will unravel, the stimulus bill was insufficient to kick-start the economy and that his economic team is being run by Wall Street. But unlike the right they have so far failed to turn their disillusionment into a potent political force.

"I'd have thought in the past that if Charles Manson ran against a Republican in Floyd County he would win," says Bartley. "But Charles Manson could beat Barack Obama here right now. Thousands of miners out of work, the entire local economy in the tank. But he's got a couple of years where he could turn this round. If he does that he could win. If he doesn't, Charles Manson could come in and win."

Part one of Gary Younge's documentary Opposing Obama will air 1 February on BBC World Service at 10am, 3pm and 8pm GMT

(Washington, DC) - The US government should release in full the military investigative reports into the deaths of three prisoners at Guantanamo in June 2006, Human Rights Watch said today.  A Seton Hall University study issued today raises questions about the US military's findings that the deaths were suicides.

Seton Hall University School of Law's Center for Policy and Research concluded that the military's investigation into the deaths of Yassar Talal al-Zahrani, Mani Shaman Turki Al Habardi al-Tabi, and Ali Abdullah Ahmed, allegedly by suicide on June 10, 2006 at Guantanamo Bay, "failed to conform to minimum standards."  In each case, the military determined that the men died by hanging.

The Seton Hall researchers reviewed thousands of pages of documents, including official reports on the deaths from the Naval Criminal Investigative Service (NCIS), the Criminal Investigation Task Force (CITF), US Southern Command (SOUTHCOM), and the Staff Judge Advocate, as well as the Armed Forces Medical Examiner's autopsies of the three men.  Because the military reports are heavily redacted, the researchers found it impossible to get a clear picture of the events the night the men died.

"Whatever the cause, there should be no confusion about the deaths of prisoners in US custody," said Andrea Prasow, senior counsel with the Human Rights Watch's Terrorism and Counterterrorism Program.  "The military reports should be released in full so the public can be confident in the nature and scope of the investigations."

Human Rights Watch urged the US government to release versions of the reports in which redactions are kept to those absolutely necessary for privacy and security considerations so that there is sufficient factual information to allow the public to obtain a clear understanding of the relevant events.

In their current redacted form, the reports leave several key questions unanswered, including why guards did not check on the prisoners for more than two hours before the men were discovered hanging in their cells.

In the immediate wake of the deaths, US officials were not only quick to label them suicides, but also spoke of them in a provocative and inflammatory way.  Guantanamo's then-Commander, Rear Adm. Harry Harris, called the deaths an act of "asymmetric warfare," while Colleen Graffy, then-deputy assistant secretary of state for public diplomacy, described the deaths as a "good PR move."

Human Rights Watch also expressed concern that the Justice Department, in a brief filed last week, argued that a federal court lacked jurisdiction to hear a damages action filed by the families of al-Zahrani and Ahmed, and that the case should be dismissed.  According to the Justice Department brief, the Military Commissions Act of 2006 stripped the courts of jurisdiction to hear such cases.

The Supreme Court in Boumediene v. Bush in 2008 rejected the government's theory that the Military Commissions Act strips courts of jurisdiction to hear claims by Guantanamo detainees when it ruled that detainees had the right to file habeas petitions, Human Rights Watch said. Whether or not courts have jurisdiction to hear other claims is still in dispute.

"If the three detainees at Guantanamo died as a result of mistreatment, their families have a right to a remedy," Prasow said. "The Military Commissions Act should not be used to hide government misconduct."

CIA interrogators threatened a captured al-Qaida leader with a power drill and a pistol in what was described as a mock execution, according to a long-suppressed report due to be released on Monday.

Details of the report by the spy agency's inspector general have emerged in the Washington Post and Newsweek. The full findings on the CIA's interrogation programme are to be made public after a federal judge upheld an appeal from the American Civil Liberties Union for their release.

The report is understood to describe mock executions where interrogators tried to get detainees to talk by firing a gun in an adjoining room to pretend another prisoner had been killed.

According to leaked information from the report, Abd al-Rahim al-Nashiri was threatened with a drill and gun during his detention at one of the CIA's so-called black site prisons after his capture in 2002. He was subjected to the near-drowning technique known as waterboarding, as were two other al-Qaida leaders.

Nashiri, who remains in detention at Guantánamo Bay, has been accused of masterminding the 1999 bombing of the USS Cole, which killed 17 American sailors.

Sources familiar with the report told the Washington Post that Nashiri was threatened with death or grave injury during his questioning. A CIA officer showed Nashiri a gun and suggested he would be shot, and a power drill was held near Nashiri's body and repeatedly turned on and off. US law on torture prohibits a US national from threatening anyone in his custody with imminent death.

The disclosures come as the CIA faces intense scrutiny. The US attorney general, Eric Holder, has been examining the legality of the CIA's interrogation methods.

The inspector general examined CIA techniques over a period of two years – from 2002 until 2004 – to see whether justice department guidelines for so-called "enhanced interrogations" had been followed. Those guidelines were finally released by the Obama administration despite the objections of the CIA and former senior officials under George Bush.

The report is understood to be the most detailed review of the agency's interrogation programme and is believed to be highly critical of the techniques used, suggesting that a number of them broke international laws and norms. The document has become deeply controversial within the CIA itself, not least because the agency was advised two months before Nashiri's capture in a memo from Jay Bybee, the head of the justice department's office of legal counsel, that threats of "imminent death" were legal if they did not cause permanent mental harm.

The report – originally commissioned by then CIA director George Tenet – has become a cause celebre. It was seen by justice department and congressional intelligence committee leaders shortly after it was written, but not shown to all members of the intelligence committees until September 2006.

Top Bush CIA officials, including Tenet's successors as CIA director, Porter Goss and General Michael Hayden, lobbied for the report to be kept secret, claiming its release would damage America's reputation around the world and damage CIA morale.

Its public release comes after revelations last week that the CIA hired the private military contractor Blackwater – now known as Xe Services – to assassinate al-Qaida leaders. The programme never got off the ground and was kept secret from Congress.

Previous scandals that damaged the reputation of the CIA and the US internationally during the Bush years include the disclosure of the US secret rendition programme for terrorist suspects, the existence of the black site prisons and the use of waterboarding.

Barack Obama has said that waterboarding constitutes torture and is therefore forbidden under US law.

In Europe, the Swiss senator who has led an inquiry across the continent into secret CIA-run detention centres has urged European nations to come clean about their involvement "in this shameful episode".

Dick Marty said Europe's credibility was being damaged by leaks about CIA interrogation facilities in countries such as Poland, Romania and Lithuania. Marty said that instead of having the truth trickle out gradually, all participants in the illegal program should publicly admit their involvement.

In a 2007 probe conducted on behalf of the Council of Europe, Marty accused 14 European governments of permitting the CIA to run detention centres or conduct rendition flights through their countries between 2002 and 2005.